The decision of the Appellate Division, First Department, earlier this month in the catastrophic 91st St. crane collapse case should have a significant impact on the analysis of damages in wrongful death actions. In addressing issues of liability and damages arising out of two wrongful death actions in Matter of 91st Street Crane Collapse Litigation, 2017 NY Slip Op 06419, 2017 WL 4003161 (1st Dept. Sept. 12, 2017), Justice Troy Webber, writing for a unanimous panel, described the unimaginable horror of these two decedents' last minutes. Even though the jury awards were reduced, the Appellate Division allowed very significant amounts for their preimpact terror as the giant crane collapsed, and for their conscious pain and suffering after sustaining catastrophic injuries. Based upon defendants' inexcusable actions which proximately caused this accident, the court also found very significant punitive damages to be merited.

This decision should encourage more vigorous examination of damages for preimpact terror and conscious pain and suffering in future wrongful death cases. Although the most commonly discussed element of damages in a wrongful death action has generally been the pecuniary loss to the next of kin, this case will certainly cause re-examination and re-evaluation of the horrific last minutes of a person's life as a result of negligence.

Facts in the Crane Case

The facts were extensively discussed in the Appellate Division decision. The tower of the immense crane which toppled was over 200 feet high. The cab, in which plaintiff Leo's decedent, Donald Leo, as the operator, was sitting, as well as the 160-foot boom and the counterweight arm that extended in the opposite direction from the boom, all rested upon a turntable assembly that connected them to the tower while allowing them to rotate. One of the main components of the turntable assembly was a 69-inch diameter bearing ring that effectuated the assembly rotation. Sometime in 2007, before being used at the accident site, the crane's bearing ring developed a crack while being used at another site. In order to save money and expedite replacement of the ring, defendants did not order it from the manufacturer but rather found a Chinese company, RTR Bearing Company, through an Internet search, which would produce it cheaply and more quickly. The individual defendant, James Lomma, admitted that if the ring failed, the results would be catastrophic. The Chinese company itself initially expressed its concern that it did not have confidence in its welding technique but finally agreed to produce it. There were multiple issues with the weld. Indeed, defendants learned another crane had a problem because of a bad weld by this same company, but proceeded nonetheless. The failure of the ring and the weld were ultimately found to be precipitating factors in this tragedy.

At trial, the jury awarded plaintiff Leo $7.5 million for preimpact terror and $8 million for the pain and suffering of her decedent, and $24 million in punitive damages. The damages were reduced by the First Department to $2.5 million for preimpact terror, $5.5 million for conscious pain and suffering and $8 million in punitive damages. The jury awarded the family of decedent Kurtaj, who was crushed by the falling crane, $7.5 million for preimpact terror, $24 million for pain and suffering, and $24 million in punitive damages. The damages were reduced by the First Department to $2 million for preimpact terror, $7.5 million for conscious pain and suffering and $9.5 million for punitive damages.

Damages for Pre-impact Terror

In her decision, Justice Webber stated that preimpact terror is considered a sub-category of conscious pain and suffering in a wrongful death case. Damages for preimpact terror cover that time period when decedent first appreciated the danger which ultimately resulted in death and the moment that physical injury was sustained. In assessing damages, preimpact terror and post-injury conscious pain and suffering have frequently been analyzed as separate items of damages. It is possible that either, or both, or neither, will be an element of damages in any given wrongful death case.