In a recent decision, Grevelding v. State of New York (No. 2013-018-439, Claim No. 109855), the Court of Claims – the court having exclusive jurisdiction over lawsuits against the State of New York – assessed damages arising from the tragic automobile-related death of Jason Rhoades.
Mr. Rhoades died when his car “vaulted” off a bridge after striking a snowbank. In 2012, the Appellate Division, Fourth Department, held that “defendant is liable for creating the dangerous condition, which was a proximate cause of decedent’s accident” and remitted the matter to the Court of Claims for a new trial “on the issues of the decedent’s alleged contributory negligence and damages.”
On remand, the Court of Claims held, initially, that “Defendant has not established that any comparative negligence of Mr. Rhoades contributed to”, and that “Defendant bears 100 percent liability for”, his injuries and death.
As for personal injury damages, the court initially held (by reference to well-known clinical and forensic pathologist Dr. Michael Baden) that plaintiff could not recover for conscious pain and suffering:
The Court finds that although Mr. Rhoades may have lived, breathing and heart beating for a moment or two after impact, after careful review, there is no direct or circumstantial evidence that Mr. Rhoades was conscious. Without sufficient proof of consciousness, or some level of cognitive awareness, a claim for conscious pain and suffering cannot be sustained. Evidence that shows “practically instantaneous death” will not support an award for conscious pain and suffering.
However, the court awarded $250,000 for Mr. Rhoades “pre-impact terror” of more than two seconds:
Claimant called Robert S. Kennedy, Ph.D., to explain the perception and reaction of Mr. Rhoades as his vehicle rode up the snowbank and over the barrier. …
Dr. Kennedy described the physiology of human perception and reaction. It starts with a stimulus such as light or sound which is energy that travels along a nerve pathway to a receptor in the brain. Then there is cognition which takes between two-tenths and four-tenths of a second depending upon the sensation. Audition or hearing is the fastest sense, then touch and vision. Basically, in less than a half second information gets to the brain, deliberation can occur, and then a motor response occurs. The information is brought to the brain in about one-half the time that one can blink or move a hand. Dr. Kennedy used the example if one trips, it takes about half a second to reach the ground, but the response of putting one’s arms out is made before one hits the floor. That response takes longer than the experience of a startle. A startle can be elicited by hearing a gunshot or pulling a chair out from under a person. These startle situations are experienced almost immediately after the brain receives the information. You can also elicit a startle in situations of falling. Fear of falling, according to studies, can be seen in babies or animals. Dr. Kennedy described this fear as innate, developing only a few months after birth.
Dr. Kennedy opined, without opposition, that Mr. Rhoades experienced fear over the course of the accident from the perception of the visual and linear changes occurring. Breaking down the accident, beginning with the skidding, Mr. Rhoades would have realized a loss of control. Next, he would anticipate a crash but as the vehicle went up the ramp of snow instead of being stopped, there would be apprehension and fear. These responses would occur within ½ second, and the fall alone took approximately 1.87 seconds. The time it took the vehicle to ride up the snowbank was about .72 seconds. Because of the heightened arousal, the responses would be clearly and indelibly perceived. As the vehicle went over the top of the barrier, the visual input is no longer in accord, as the angles and linear positions change, causing fear and confusion. This would initiate the innate and significant fear of falling.
When Mr. Rhoades initially lost control of his vehicle, although surely feeling concern, he was not necessarily in fear of imminent grave injury or death. His fear of serious injury or death would have arisen as he approached the top of the snowbank without stopping.
Although it is impossible to determine with any certainty what Mr. Rhoades experienced that day, such uncertainty does not preclude an award where reasonable inferences can be drawn from the facts and evidence to conclude he likely endured a period of time of acute fear of death or serious harm.
The facts of this accident coupled with Dr. Kennedy’s testimony provided sufficient scientific evidence to convince this Court that Mr. Rhoades suffered pre-impact terror for more than two seconds (see Stein v Leibowitz-Pine View Hotel,111 AD2d 572 [3d Dept 1985]). In order to determine what would be “reasonable compensation” for Mr. Rhoades’ pre-impact suffering, this Court has referenced what some other courts have found to be a reasonable award for comparable periods of such suffering (see Maracallo v Board of Educ. of City of N.Y., 21 AD3d 318 [1st Dept 2005] [fourteen year old went under water twice, surviving for six to seven minutes while drowning $1,250,000]; Lang v Bouju, 245 AD2d 1000 [3d Dept 1997] [several seconds of Mr. Lang seeing truck and trying to stop motorcycle before fatal collision, $100,000]). Based upon this review and the circumstances herein, the Court awards Claimant, as Executor of the Estate, $250,000 for Mr. Rhoades’ pre-impact terror.
The court then turned to damages sought by the Claimant for the State’s negligence in causing Mr. Rohades’ wrongful death. Those damages are authorized by Estates, Powers and Trusts Law § 5-4.3, which authorizes damages for “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.”
In assessing these damages, the court stressed that:
Although the tragedy of Mr. Rhoades’ death is overwhelming, and the grief, sadness, and emotional loss suffered by his family were clearly evidenced at trial, the Court is limited by the law to make an award solely for pecuniary loss. The deep sorrow, loss of affection, and loss of companionship cannot be compensated by money damages under the statute. The only damages that may be recovered are the loss of support, voluntary assistance, possible inheritance, and medical and funeral expenses. Mr. Rhoades’ children may also recover for the loss of parental guidance, nurture, care, and physical, moral, and intellectual training. In assessing the amount of damages, consideration is given to Mr. Rhoades’ earning potential, which includes past and future earnings and potential for advancement, as well as Mr. Rhoades’ age, health, life expectancy, character, and the circumstances of the distributees, including their number, age, and health.
Applying the statute, the court awarded damages for funeral expenses; loss of care, guidance, and nurturing; loss of income, support, and household services; and loss of inheritance. For example, with respect to the loss of care, guidance, and nurturing, the court cited the “very strong bond” between the decedent and his children, and testimony about the “loss of a father on children.”
In sum, the court awarded a total of $14,797,888.68 in damages.