Summary
In Greene v. City of New York, 170 A.D.2d 321, 566 N.Y.S.2d 40 (1st Dep't), app. denied, 78 N Y2d 853, 573 N.Y.S.2d 466, 577 N.E.2d 1058 (1991), for example, the court reduced an award from $1,000,000 to $300,000 because there was considerable doubt as to whether and to what extent the decedent had experienced conscious pain and suffering during the nineteen days between his injury and death, during which time he remained in varying degrees of coma.
Summary of this case from Datskow v. Teledyne Continental MotorsOpinion
February 21, 1991
Appeal from the Supreme Court, Bronx County (Hansel L. McGee, J.).
We agree that defendants voluntarily assumed a special duty (Florence v Goldberg, 44 N.Y.2d 189; cf., Bonner v City of New York, 73 N.Y.2d 930) to protect plaintiff's decedent, a student of JHS 123, from a neighborhood bully who was often seen on school grounds, and who had threatened decedent with harm; the evidence further supported the verdict with respect to defendants' breach of that duty, proximately resulting in the fatality. However, there is considerable doubt as to whether and to what extent decedent experienced any conscious pain and suffering throughout the nineteen days between injury and death (Cook v Erwin, 30 A.D.2d 579, 580), during which time he remained in varying degrees of coma (Blunt v Zinni, 32 A.D.2d 882, 883, affd 27 N.Y.2d 521; Alfieri v Cabot Corp., 17 A.D.2d 455, affd 13 N.Y.2d 1027). Even relatively brief periods of consciousness would not warrant the kind of award plaintiff received here (see, Parilis v Feinstein, 71 A.D.2d 617, affd 49 N.Y.2d 984), especially where the injured party lapsed into coma almost immediately after injury (Tenczar v Milligan, 47 A.D.2d 773, lv denied 36 N.Y.2d 645).
Concur — Murphy, P.J., Carro, Kupferman, Asch and Kassal, JJ.