Opinion
No. 97-9207
August 24, 1998
Appeal from the United States District Court for the Eastern District of New York.
PRESENT: HON. DENNIS JACOBS, HON. FRANK J. MAGILL Circuit Judges, APPEARING FOR APPELLANT: WILLIAM M. KIMBALL, New York, NY.(James P. O'Connor, on the brief).
APPEARING FOR APPELLEE: STEPHEN LEVINE, Brooklyn, NY.
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York (Pollak, Mag. J.) and was argued.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the district court is AFFIRMED.
General Restoration Co., Inc. appeals from an order of the United States District Court for the Eastern District of New York, awarding damages of $495,866 to plaintiff and denying General Restoration's motion for a remittitur or a new trial.
On April 28, 1990, Victor R. Stankiewicz, Sr. (the "decedent") fell to his death from a scaffold while caulking windows on a Brooklyn building. The administrator of his estate filed a diversity action in the United States District Court for the Eastern District of New York (Ross, J.) against the owners of the building, alleging no-fault liability under the New York Labor Law. The building owners brought a third-party action for indemnity or contribution against the decedent's employer, General Restoration. Judge Ross granted summary judgment to plaintiff as against defendants on the issue of liability, and granted summary judgment to defendants as against General Restoration.
By consent of the parties, the issue of damages was tried before a magistrate judge. Plaintiff produced unrebutted evidence that the decedent had fallen for more than two seconds before striking the ground face-down at a speed of 43.6 miles per hour; that the fall caused his arm to break in two and inflicted grave internal injuries upon him; that he had been conscious after he struck the ground and had moaned in pain; and that he had been given anaesthesia upon his arrival at the hospital, indicating that his doctors believed that he could still feel pain at that point. He was pronounced dead approximately two hours after the fall.
The jury awarded $250,000 in damages as compensation for the decedent's pain and suffering, and economic loss damages of $22,500 to each of the decedent's five children, except the youngest, who was awarded $60,000. General Restoration moved for a new trial or amendment of the judgment by remittitur pursuant to Federal Rules of Civil Procedure 59(a) and 59(e). Magistrate Judge Pollak denied this motion in an Opinion and Order dated December 5, 1996, which was embodied in a final order on August 28, 1997. It granted the plaintiff the damages awarded by the jury, plus interest, for a total of $495,866. General Restoration appeals the denial of its motion for remittitur or a new trial.
A trial court's refusal to set aside or reduce a jury award will be reversed only for an abuse of discretion. Martell v. Boardwalk Enters., Inc., 748 F.2d 740, 750 (2d Cir. 1984). For that purpose, a trial court sitting in diversity must look to "other jury awards condoned by courts of the state whose substantive law governs the rights of the parties." Id. The magistrate judge properly compared the pain and suffering damages awarded by the jury to other awards upheld in comparable cases before the New York courts, which focus on factors including the degree of consciousness; the interval between injury and death; the severity of the pain; and the apprehension of impending death. See, e.g., Tenczar v. Milligan, 365 N.Y.S.2d 272, 275 (App. Div. 3d Dep't 1975). We agree with her conclusion that the jury's award complies with C.P.L.R. § 5501(c) (barring any material deviation from reasonable compensation). See, e.g., Gonzalez v. New York City Housing Auth., 569 N.Y.S.2d 915, 919 (1991) (affirming reduced award of $350,000 where circumstantial evidence was sufficient to show that decedent was conscious for at least some period of time before death); Donofrio v. Montalbano, 659 N.Y.S.2d 484, 485 (App. Div. 2d Dep't 1997) (reducing jury award from $1,500,000 to $100,000 where decedent's pre-impact terror was limited to a few seconds; he may not have been conscious after impact; and he survived for only 16 to 27 minutes after the accident); Glassman v. City of New York, 640 N.Y.S.2d 139, 140-41 (App. Div. 2d Dep't 1996) (reducing award from $1.4 million to $500,000 where decedent, a car accident victim, "was only minimally conscious before she died"); Portaro v. Gerber, 629 N.Y.S.2d 277, 279 (App. Div. 2d Dep't 1995) (increasing jury award from $25,000 to $100,000 where decedent survived for five to ten minutes after accidental shooting); Torelli v. City of New York, 574 N.Y.S.2d 5, 9 (App. Div. 1st Dep't 1991) (overturning trial judge's reduced verdict of $75,000 and awarding $250,000 where decedent was conscious for between 15 minutes and one hour after car accident). The Stankiewicz jury's award of $250,000 was within the range established by these and other New York cases, and the district court's entry of that award did not constitute an abuse of discretion.
We also affirm the magistrate judge's entry of the jury's award of pecuniary damages to plaintiff. The jury awarded decedent's children more than the sum plaintiff's expert calculated as their actual economic losses; but the jury was entitled to award additional damages to reflect the loss of parental guidance, a not insubstantial consideration in this case. See Gonzalez, 569 N.Y.S.2d at 918-19. The magistrate judge's acceptance of the jury award for economic losses therefore was not an abuse of discretion.
For the foregoing reasons, the judgment of the district court is AFFIRMED.