Summary
reducing award from $1.4 million to $500,000 where decedent, a car accident victim, "was only minimally conscious before she died"
Summary of this case from Stankiewicz v. UrbanOpinion
March 18, 1996
Appeal from the Supreme Court, Queens County (Harbater, J.).
Ordered that the judgment is modified, on the facts and as an exercise of discretion, (1) by deleting therefrom the provision apportioning fault among the defendants and a new trial is granted on that issue and (2) by deleting therefrom the provisions awarding the decedent's three daughters $250,000 each as damages for wrongful death and awarding damages of $1.4 million for the decedent's conscious pain and suffering and a new trial is granted on those issues unless, within 20 days of service upon the plaintiff and the decedent's daughters of a copy of this decision and order, with notice of entry, they shall serve and file in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to decrease the verdict as to damages from $250,000 to $100,000 to each daughter for damages for wrongful death and from $1.4 million to $500,000 for damages for the decedent's conscious pain and suffering and to the entry of an amended judgment. In the event the plaintiff and the decedent's daughters so stipulate, then the judgment, as so decreased and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of the apportionment of fault.
This action arises from an automobile accident in April 1989 at the intersection of Clintonville and 160th Streets in Whitestone, Queens. The cars driven by the defendants Emil Schnell and Mary Marrone Archer collided, causing Schnell's car to strike the plaintiff's decedent, who was standing on a traffic island. The plaintiff alleged that the appellant was negligent because it failed to promptly repair the stop sign controlling the southbound traffic on 160th Street, the direction in which Archer's vehicle was travelling. The stop sign had been knocked down several days before the accident, and it had not yet been repaired on the day of the accident. The appellant, while acknowledging some culpability, contends that the jury's finding that it was 90% at fault in the happening of the accident is against the weight of the evidence. We agree.
While apportionment of liability among defendants is generally a matter for the jury (see, Rhoden v Montalbo, 127 A.D.2d 645), we find that neither Schnell nor Archer exercised the degree of caution that the conditions at the scene of the accident demanded. Thus, the jury's apportionment of fault was not based on a fair interpretation of the evidence (see, Cruz v City of New York, 201 A.D.2d 606; Nicastro v Park, 113 A.D.2d 129). Accordingly, a new trial is necessary on this issue.
We also agree with the appellant that the award of damages for the decedent's conscious pain and suffering is excessive to the extent indicated. While the decedent suffered massive injuries, she was only minimally conscious before she died (see, Dontas v City of New York, 183 A.D.2d 868; Van Norden v Kliternick, 178 A.D.2d 167; Torelli v City of New York, 176 A.D.2d 119). The award of damages for wrongful death to the decedent's three adult daughters is also excessive to the extent indicated (see, Rubin v Aaron, 191 A.D.2d 547).
We have examined the appellant's remaining contention and find it to be without merit. Mangano, P.J., Bracken, Copertino and Pizzuto, JJ., concur.