All too often, perception becomes reality. Awards for pre-impact terror in New York are no exception. While pre-impact terror was historically an element of conscious pain and suffering in wrongful death actions, in 2012, the New York Pattern Jury Instructions (PJI) were amended to allow a plaintiff to recover damages for a decedent’s pre-impact terror and independent damages for his or her conscious pain and suffering. Although the origins of this groundbreaking change are of uncertain provenance and its continued propagation the product of inertia, rather than rigorous legal analysis, one thing is clear: it is fundamentally improper under New York law to allow a jury to issue separate awards for pre-impact terror and conscious pain and suffering. Nevertheless, perception is reality and attorneys throughout New York take it as an article of faith that a plaintiff is entitled to recover separate awards for pre-impact terror and conscious pain and suffering. The urgent need to address this misconception assumes added importance as plaintiffs, with increasing frequency, turn to the PJI’s construct to inflate the value of their claims.

Awards for Non-Economic Damages in New York Serve a Narrow Purpose

Awards for non-economic damages in New York are carefully circumscribed. The Court of Appeals has long recognized that “recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on ‘the legal fiction that money damages can compensate for a victim’s injury.’”[i] While money can never truly return a plaintiff to their pre-accident condition or ease his or her pain, it is “as close as the law can come in its effort to right the wrong.”[ii] Nevertheless, the court’s “willingness to indulge this fiction comes to an end [] when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive.”[iii]

Pre-Impact Terror Enters the Lexicon

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