In Dowd vs. New York City Transit Authority, 2010 WL 4678916 (November 16, 2010), the 79-year old decedent was struck by a bus that was backing out of a parking space at the bus terminal located at 165th Street and Merrick Boulevard in Queens. Part of the maneuver needed to exit from the parking space required a bus operator to reverse the bus, encroaching on the sidewalk that ran along Merrick Boulevard, before moving forward to exit on 89th Avenue. Because of a blind spot directly behind the bus, bus operators are advised that they are to ask a responsible person to guide them when they are backing up and to avoid backing up a bus alone.
The accident occurred at 6:20 A.M. on June 2, 2006, when the bus driver sounded his horn and reversed slowly out of the spot with the reverse alarm automatically sounding. The bus struck the plaintiff’s decedent, who was on the sidewalk, the rear wheels of the bus ran over the decedent, and the bus then moved forward and ran over the decedent a second time. The driver did not realize that he had hit a pedestrian until an eyewitness alerted him.
According to the decision, the decedent was still conscious and complaining of pain when paramedics arrived on the scene and transported her to the hospital. The decedent went into cardiac arrest upon her arrival at the hospital at 6:38 A.M. 18 minutes after the accident. She was revived and her vital signs returned; however, she subsequently went into cardiac arrest a second time and was pronounced dead at 7:50 A.M.
The jury returned a verdict on the issue of damages that included an award to the plaintiff in the sum of $1,750,000 for conscious pain and suffering. The Second Department ordered a new trial on damages unless the plaintiff agreed to accept the sum of $1,200,000 for conscious pain and suffering. A big key to the verdict appears to be eyewitness testimony revealed that the 79-year old decedent saw the bus backing out and attempted to get out of its way. This testimony established the great fear of impending disaster that the plaintiff’s decedent had prior to being struck by the bus. The jury also awarded $250,000.00 for the pecuniary loss to the decedent’s family. The appellate court let that award stand in its entirety.
Given the archaic state of the wrongful death law in New York State that does not permit a family of a decedent to recover for their emotional grief, it’s nice to see good lawyering achieve such a strong overall recovery for a 79-year old who was probably not a wage earner. One suspects, unfortunately, that there must have been evidence describing the extensive injuries and excruciating pain the decedent experienced, even if the suffering was relatively short, although this information is not contained in the decision.
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