Thomas R. Newman

The Appellate Division of the Supreme Court of New York has extremely broad power to review money judgments in personal injury and wrongful death actions and, where a new trial is sought on the ground that an award is excessive or inadequate, the court is directed by statute to determine whether the award "deviates materially from what would be reasonable compensation" (CPLR §5001(c)), in which case it will order a remittitur or additur.

In re 91st Street Crane Collapse Litigation, __ A.D.3d __, 2017 NY Slip Op 06419, page 13/18 (1st Dept. Sept. 12, 2017) (91st Street Crane Collapse), is such a case in which Justice Troy Webber wrote a comprehensive opinion for a unanimous panel with respect to awards for pre-impact terror, a sub-category of conscious pain and suffering for which a separate award is made. Vol. 1B NY PJI 2:320 at p. 1007 ((3d ed. 2017). Such damages are designed "to compensate the decedent's estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent's death and the moment the decedent sustained a physical injury as a result of the danger." Id., at 12/18, quoting NY PJI 2:320, Comment, Caveat 3.

Thirty-four years ago, I wrote an article noting the difficulty that confronts most judges and lawyers when trying to objectively evaluate cases for settlement since judicial opinions often reduce or increase awards with no more explanation than that the award "shocks the conscience of the court," or "is so disproportionate to the injury as not to be within reasonable bounds," or the present test in New York, it "deviates materially from what would be reasonable compensation." See Newman," "Damages: A Call for Meaningful Precedents," 3 Pace L. Rev. 605 (1983). Whichever formulation is used, unless the injuries are described in detail, the opinion will not give any practical guidance to attorneys who must advise their clients whether an offer or demand is fair and reasonable, or to insurance company claims personnel who must set adequate reserves necessary to maintain the solvency of their company, or to judges tasked with making or reviewing such awards.

These individuals need more than generalizations; they need tools to assist them in trying to predict what would be the highest amount still considered "reasonable compensation." Meaningful settlement negotiations cannot take place unless there is some commonly understood and agreed-upon basis whereby all interested parties can assess how the Appellate Division might be expected to react to the facts of their case.

Justice Webber's opinion is, therefore, to be complimented for describing in grisly detail the horrific bodily injuries (including "pulpification of the brain" and "near-complete decapitation" and multiple fractures) suffered by Leo, the crane operator who was trapped in the glass cab that teetered and then fell backward from a height of 200 feet, struck another building and bounced off a number of terraces before reaching the ground where it crashed onto his coworker, Turtaj, who was trapped under the wreckage with multiple bone-shattering injuries as a result of being hit with the heaviest components of the collapsing crane. 91st Street Crane Collapse, at 13/18-14/18. The jury could find that each man was "aware of his impending death."

Those descriptions of the decedents' injuries only assist the trier of the facts in arriving at an award for conscious pain and suffering as the result of physical injuries based on a comparison of the award under scrutiny with recent verdicts and appellate court decisions in cases involving comparable injuries. They are of no use in determining what is reasonable compensation for the "inconceivable" (the court's apt word) pre-impact terror that, it can be reasonably believed, both men must have felt.

The opinion states that "[c]ourts are required to look to similar appealed verdicts to determine whether a material deviation exists," and notes that "there are no verdicts similar to the verdicts in this case" and "also no cases that are similar in facts or present such a confluence of facts: catastrophic injuries leading to death …" Id., at 12/18. It is a truism that each case is necessarily different, with the outcome dependent on judges or jurors applying their discretion to always varying fact patterns. Although the power to determine what is reasonable compensation in a particular case is discretionary, "'there must be a basis of fact or circumstance for its exercise.' Judicial discretion is a phrase of great latitude; but it never means the arbitrary will of the judge." In re Superintendent of Banks, 207 N.Y. 11, 15 (1912).

In McDougald v. Garber, 73 N.Y.2d 246, 255 (1989), the Court of Appeals held that "cognitive awareness is a prerequisite to recovery for loss of enjoyment of life," just as it is for recovery of pre-impact terror damages. 91st Street Crane Collapse, at 12/18, citing Keenan v. Molloy, 137 A.D.3d 868 (2d Dept), lv. den. 27 N.Y.3d 908 (2016). The Court of Appeals pointed out that "[w]ith respect to pain and suffering, the trial court charged simply that there must be 'some level of awareness' in order for plaintiff to recover. We think that this is an appropriate standard for all aspects of nonpecuniary loss … . A more complex instruction might give the appearance of greater precision but, given the limits of our understanding of the human mind, it would in reality lead only to greater speculation." 73 N.Y.2d at 255 (emphasis added). This is equally true and would be even more speculative when trying to determine what would be a reasonable amount of pre-impact terror damages.

Neither religion nor science has yet penetrated the mysteries of the afterworld, if there is one, so we are unable to communicate with the decedents and learn what they were thinking or experiencing in the interval between their awareness of impending death and the physical injuries that resulted in their deaths. It is impossible to differentiate between the final thoughts of Leo and Kurtaj. Yet that impossible task is what the Appellate Division has just purported to perform when it reduced the two identical jury awards of $7.5 million each for "inconceivable preimpact terror" to $2.5 million for Leo and $2 million for Kurtaj, with no explanation for its action or the $500,000 difference other than saying that each award "materially deviates from reasonable compensation." 91st Street Crane Collapse, at 13/18.

How will the court react to the case of an airline passenger who knew the plane was plunging to earth and there would likely be no survivors? Or any other hypothetical situation where the person was aware of his or her impending death as the result of a tortious act?

The length of time that the decedent had to reflect on his or her inevitable death is a factor courts have considered in determining the reasonableness of an award for pre-impact terror. Thus, in Donofrio v. Montalbano, 240 A.D.2d 617, 618 (2d Dept 1997), the court found that "the duration within which the decedent could have experienced any preimpact terror was limited to only several seconds, which warrants, at best, a minimal award."

Perhaps, as a matter of public policy, the answer is for the legislature or Court of Appeals to determine that a "one size fits all" amount is "reasonable compensation" for pre-impact terror depending on time or some other identified factor; something like a scheduled workers' compensation award for loss of a leg or an eye, etc., with an inflation factor. That, too, would be an arbitrarily chosen amount, but at least it would treat equally all similarly situated decedents and their survivors since we are unable to make any meaningful factual distinctions.

Lastly, there is another questionable aspect of the court's opinion. The court, on ample evidence, found that while the "nature of defendants' reprehensible conduct" justified the awards of punitive damages, it reduced the $24 million awards to each Leo and Kurtaj to $8 million for Leo and $9.5 million for Kurtaj. Id., at 17/18. The same "reprehensible conduct" was responsible for the injuries and deaths of both Leo and Kurtaj and the court did not explain why one decedent's estate will receive $1.5 million more in punitive damages than the other. (Note: I am not offering any opinion as to whether any of the six separate awards of damages is still excessive.)

It may be that the court believed a 1:1 ratio of compensatory to punitive damages was required as a matter of due process and federal constitutional law. That, however, is not the case. "[T]here are no rigid benchmarks that a punitive damages award may not surpass," although the Supreme Court has suggested that "[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee." State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (emphasis added). The court possibly interpreted this caution as an admonition that in such cases punitive damages should not exceed, and perhaps be equal to, the compensatory damages. In any case, an explanation for the different awards would have been welcome.

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender).

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.