Appellate Court Affirms Wrongful Death Verdict, Upholds Damages for Pre-Impact Terror, Pain and Suffering, and Economic Loss

On appeal, the Supreme Court of New York, Appellate Division affirmed a trial court’s decision to deny the defendant’s motion to set aside the verdict in a wrongful death case. 

The plaintiff’s wife was struck by an SUV driven by the defendant, and the decedent passed away later that day as a result of the incident. The plaintiff brought a negligence and wrongful death suit. The jury awarded the plaintiff damages for pre-impact terror, the decedent’s conscious pain and suffering and the plaintiff’s economic loss. 

The defendant appealed, asserting that the damages awarded were against the weight of the evidence and excessive. The appellate court found that the awards given for all three damages were not against the weight of evidence. 

For the award of pre-impact terror, the appellate court relied on video evidence that showed the decedent turning her head in the direction of the oncoming SUV and raise her hands in a defensive posture moments before being struck. 

For the award of conscious pain and suffering, the appellate court relied on the testimony of a neurologist who reviewed the ambulance and hospital records for the decedent. The neurologist proffered testimony that following the impact, the decedent’s movements were purposeful and, as such, evinced consciousness. The appellate court concluded that a fair interpretation of this evidence supported the finding that the decedent experienced conscious pain and suffering. 

For the award of economic loss, the appellate court held that in addition to life expectancy tables, the information given by the plaintiff about the decedent’s health, habits, employment, compensable services the decedent rendered to the plaintiff, and the expert testimony of an economist and a life planner satisfied the requirement of fair and just compensation. 

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