| Vasquez v County of Nassau |
| 2012 NY Slip Op 00508 [91 AD3d 855] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Felix Vasquez et al., Respondents, v County of Nassau etal., Appellants-Respondents, and Glory E. Upke,Respondent-Appellant. |
—[*1] O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Robert E. O'Connor ofcounsel), for respondent-appellant. Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, New York, N.Y. (RhondaE. Kay, Richard M. Steigman, and Howard S. Hershenhorn of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants County of Nassau,Metropolitan Suburban Bus Authority, and William Malloy appeal, as limited by their brief, fromso much of a judgment of the Supreme Court, Nassau County (McCarty III, J.), entered August 4,2010, as, upon a jury verdict on the issues of liability and damages finding that they were 35% atfault in the happening of the accident and that the defendant Glory E. Upke was 65% at fault, andthat the plaintiffs sustained damages, inter alia, in the principal sums of $100,000 for thedecedent's conscious past pain and suffering, $40,000 for past loss of financial support, $200,000for future loss of financial support, $140,000 for past loss of household services, $1,800,000 forfuture loss of household services, $100,000 for past loss of parental care and guidance, and$600,000 for future loss of parental care and guidance, and upon the denial of those branches oftheir motion which were pursuant to CPLR 4404 (a) to set aside the verdict and for judgment as amatter of law or, in the alternative, to set aside the verdict as contrary to the weight of theevidence and for a new trial or, in the alternative, to set aside the award of certain items ofdamages as excessive, and upon the reduction of the awards for past and future loss of financialsupport pursuant to CPLR 4545, is in favor of the plaintiffs and against them in the principalsums of $100,000, for the decedent's conscious past pain and suffering, $31,810 for past loss offinancial support, $189,290 for future loss of financial support, $140,000 for past loss ofhousehold services, $1,800,000 for future loss of household services, $100,000 for past loss ofparental care and guidance, and $600,000 for future loss of parental care and guidance, and thedefendant Glory E. Upke cross-appeals, as limited by her brief, from so much of the samejudgment as is in favor of the plaintiffs and against her in those principal sums.
Ordered that the judgment is affirmed insofar as appealed and cross-appealed from, with onebill of costs payable by the defendants appearing separately and filing separate briefs.[*2]
This case stems from an accident involving multiplevehicles and two pedestrians at the intersection of Jackson Street and Washington Street inHempstead, which was governed by traffic light signals. The decedent was carrying the infantplaintiff, her three-year-old disabled son with Down syndrome. As the decedent crossed JacksonStreet on the north side of the intersection in the crosswalk, she was struck by a vehicle operatedby the defendant Glory E. Upke, after that vehicle was struck by a bus operated by the defendantWilliam Malloy and owned by the defendant Metropolitan Suburban Bus Authority. The force ofthe impact propelled the decedent into the air and caused her to let go of the infant plaintiff. Priorto the accident, the bus was traveling in a westerly direction on Jackson Street, and the Upkevehicle was traveling in a northerly direction on Washington Street.
There was conflicting evidence adduced at trial as to the speed at which the vehicles weremoving as they approached the intersection and about which driver had the right of way. Upketestified that she had a yellow light as she traveled north through the intersection, but severalwitnesses testified that Malloy, the bus driver, had a green light as he traveled west through theintersection. In any event, Upke did not see the bus until it hit her vehicle in the intersection.Although there was conflicting evidence about whether Malloy looked for other vehicles orpedestrians before proceeding through the intersection, as he approached the intersection, hecould see substantially more than 40 feet to his left, which was the direction from which Upke'svehicle was traveling. Nonetheless, he did not see her vehicle until a "split second" before the buscollided with Upke's vehicle. The jury found that the defendants County of Nassau, MetropolitanSuburban Bus Authority, and Malloy (hereinafter collectively the municipal defendants) were35% at fault in the happening of the accident, and Upke was 65% at fault in the happening of theaccident.
"In evaluating the legal sufficiency of the evidence, a court must determine whether there isany valid line of reasoning and permissible inferences which could possibly lead a rational[person] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Sydnor v Home Depot U.S.A., Inc., 74AD3d 1185, 1187 [2010] [internal quotation marks omitted]; see Fekry v New York City Tr. Auth.,75 AD3d 616, 617 [2010]). Here, a rational person could have concluded that both driversfailed to use reasonable care, and to "see that which [they] should have seen" as they approachedand entered the intersection (Barbieri vVokoun, 72 AD3d 853, 856 [2010]; see Shea v Judson, 283 NY 393, 398[1940]; Blasso v Parente, 79 AD3d923, 925 [2010]; Nuziale v PaperTransp. of Green Bay Inc., 39 AD3d 833, 835 [2007]; Siegel v Sweeney, 266AD2d 200, 201-202 [1999]).
"[A] jury verdict should not be set aside as contrary to the weight of the evidence unless thejury could not have reached the verdict by any fair interpretation of the evidence. Whether a juryverdict should be set aside as contrary to the weight of the evidence does not involve a questionof law, but rather requires a discretionary balancing of many factors" (Fekry v New York CityTr. Auth., 75 AD3d at 617 [citations omitted]; see Cohen v Hallmark Cards, 45NY2d 493, 498-499 [1978]; Sydnor v Home Depot U.S.A., Inc., 74 AD3d at 1187). Weaccord deference to the credibility determinations of the factfinders, "who had the opportunity tosee and hear the witnesses" (Fekry v New York City Tr. Auth., 75 AD3d at 617; see Bertelle v New York City Tr.Auth., 19 AD3d 343 [2005]). Moreover, the "jury's apportionment of fault should not beset aside unless it could not have been reached based upon a fair interpretation of the evidence"(Sydnor v Home Depot U.S.A., Inc., 74 AD3d at 1187). Here, the jury's verdict wassupported by a fair interpretation of the evidence.
Contrary to the contentions of the municipal defendants, they were not entitled to a juryinstruction on the emergency doctrine merely based upon Malloy's testimony that he did not seeUpke's vehicle in the intersection until a split second before the collision. Here, the plaintiffswere not seeking to hold any of the municipal defendants responsible for actions Malloy tookafter the alleged emergency situation arose (see Jablonski v Jakaitis, 85 AD3d 969, 970 [2011]). Rather, theyclaimed that Malloy failed to use reasonable care as he approached the intersection. In otherwords, he failed to "see that which he should have seen" (Barbieri v Vokoun, 72 AD3d at856; see Blasso v Parente, 79 AD3d at 925; Nuziale v Paper Transp. of Green BayInc., 39 AD3d at 835), and he should have anticipated the alleged emergency situation byexercising reasonable care to look out for any other vehicles entering, or already in, theintersection (see Hart v Town of N. Castle, 305 AD2d 543, 544 [2003]; Mead vMarino, 205 AD2d 669, 669-670 [1994]). Under these circumstances, the municipaldefendants were not entitled to a jury charge on the emergency doctrine (see Jablonski v[*3]Jakaitis, 85 AD3d at 970; Hart v Town of N.Castle, 305 AD2d at 544; Mead v Marino, 205 AD2d at 669-670; cf. Kuci vManhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923, 924 [1996]).
The municipal defendants also contend that the admission of certain testimony about theso-called Smith method of driving, which is sometimes used to train operators of large vehicles,and subsequent references to the Smith method improperly imposed a higher standard of care onMalloy than the standard imposed by law. References to manuals or instructions like the Smithmethod are admissible as evidence of whether reasonable care was exercised if "they do notimpose a higher standard of care than that which is imposed by law" (Conrad v County ofWestchester, 259 AD2d 724, 725 [1999]). Here, the reference to the Smith method did nomore than emphasize the common-law standard of care. That method, as described at trial,simply requires that drivers see what there is to be seen before proceeding through an intersection(see Barbieri v Vokoun, 72 AD3d at 856), and "exercise reasonable care notwithstandingthe invitation to proceed by the green light" (Siegel v Sweeney, 266 AD2d at 201; seeNuziale v Paper Transp. of Green Bay Inc., 39 AD3d at 835).
Contrary to the contentions of both the municipal defendants and Upke, the trial courtproperly admitted the decedent's tax returns into evidence to prove damages for loss of financialsupport (see Deans v Jamaica Hosp.Med. Ctr., 64 AD3d 742, 744 [2009]; L. Smirlock Realty Corp. v Tit. Guar. Co.,97 AD2d 208, 239 [1983], mod 63 NY2d 955 [1984]; cf. People v Matthews, 16 AD3d135, 137 [2005]).
The defendants also challenge the awards for certain items of damages as excessive. Contraryto the defendants' contentions, the damages awarded for the decedent's conscious past pain andsuffering did not deviate materially from what would be reasonable compensation (see Gersten v Boos, 57 AD3d 475,477 [2008]; Bennett v Henry, 39AD3d 575, 576 [2007]). With respect to the calculation of past and future loss of thedecedent's financial support and household services for the infant plaintiff, the plaintiffs adducedthe testimony of an expert witness, and the defendants did not refute that testimony by presentingtheir own expert witness or otherwise. The plaintiffs' evidence established past and future loss ofthe decedent's financial support with reasonable certainty, and the damages awards in thesecategories did not deviate materially from what would be reasonable compensation (see Calov Perez, 211 AD2d 607, 608 [1995]; Allen v New York City Tr. Auth., 148 AD2d563 [1989]; cf. Klos v New York City Tr. Auth., 240 AD2d 635, 637-638 [1997]). Inlight of the evidence, inter alia, regarding the special, lifetime needs of the disabled infantplaintiff, which were projected to continue throughout his adulthood, the damages awards forpast and future loss of the decedent's household services were "reasonably certain to be incurredand necessitated" (Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 NY2d 311,321 [1997]; see generally De Long v County of Erie, 60 NY2d 296, 307 [1983]; Presler v Compson Tennis ClubAssoc., 27 AD3d 1096, 1097 [2006]), and did not deviate materially from what wouldbe reasonable compensation (cf. Kihl vPfeffer, 47 AD3d 154, 161 [2007]; Allen v New York City Tr. Auth., 148 AD2dat 563). Further, the damages awarded for past and future loss of parental care and guidance didnot deviate materially from what would be reasonable compensation (see Bogen v State of New York, 5AD3d 521 [2004]; Adderley v City of New York, 304 AD2d 485, 486 [2003];Zygmunt v Berkowitz, 301 AD2d 593, 594 [2003]; Paccione v Greenberg, 256AD2d 559, 561 [1998]). Moreover, contrary to the defendants' contentions, damages for loss ofhousehold services are not duplicative of damages for loss of parental care and guidance; thesetypes of losses are separate and distinct (see Gonzalez v New York City Hous. Auth., 77NY2d 663, 668 [1991]; Klos v New York City Tr. Auth., 240 AD2d at 638; Kiker vNassau County, 175 AD2d 99, 102 [1991]), and here the plaintiffs offered evidence insupport of both (see Allen v New York City Tr. Auth., 148 AD2d at 563; cf. Merola v Catholic Med. Ctr. ofBrooklyn & Queens, Inc., 24 AD3d 629, 631 [2005]; Zygmunt v Berkowitz, 301AD2d at 594).
The parties' remaining contentions are unpreserved for appellate review or without merit.Angiolillo, J.P., Florio, Chambers and Hall, JJ., concur.