Appellate Court Orders New Trial Over Pain And Suffering Verdict In Wrongful Death Case

by Friedman & Ranzenhofer, PC on June 16, 2010

in Buffalo Wrongful Death Issues

As the summer swimming season in Buffalo arrives, a case involving the wrongful death of a teenager who drowned in a public swimming pool across the state has been sent down for a new trial.  This sad case arose from the drowning death of Jeremy Williams, an eighteen year old who suffered from epilepsy and drowned after suffering a grand mal seizure while swimming.  It will be retried because, although the City of New York was found to be 25% liable for Jeremy’s death, the original jury declined to award any damages for his pain and suffering during the eleven days before he died.

Pain and suffering awards can be much more difficult to address in wrongful death cases than in situations where the injured party survived and can attest to his or her degree of suffering.  Generally, New York State law requires that for pain and suffering damages to be awarded, it must be demonstrated that the deceased had some level of awareness of his or her condition prior to passing away.

 In Jeremy’s case, a doctor testified that hospital records indicated that during the 11 days he was hospitalized prior to his death, he could squeeze the nurse’s hand on request, mouth words, open his eyes in response to verbal and visual stimuli, and respond to touch and painful stimuli.  He would turn his head in the direction of a voice calling his name and had some degree of brain function for several days following the incident.  The doctor also testified that, in his opinion, Jeremy suffered pain in that time.

The appellate court found this unrefuted testimony sufficient to establish that pain and suffering should be awarded in this case and, as a result, the jury’s decision to award zero damages for pain and suffering was wrong.

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