| Motelson v Ford Motor Co. |
| 2012 NY Slip Op 08702 [101 AD3d 957] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Elissa Motelson et al., Respondents, v Ford MotorCompany et al., Appellants. (Action No. 1.) Michael J. Motelson et al., Respondents, v FordMotor Company et al., Appellants. (Action No. 2.) |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Joanna M. Toppingand John M. Flannery of counsel), for appellant Ford Motor Credit Company. Allen L. Rothenberg (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac,Michael H. Zhu, and Marc J. Rothenberg], of counsel), for respondents in action No. 1. Kelner & Kelner, New York, N.Y. (Gerard K. Ryan, Jr., of counsel), for respondents inaction No. 2.
In two related actions to recover damages for wrongful death and personal injuries, etc.,incurred in a motor vehicle accident, (1) the defendant Ford Motor Company appeals, and thedefendant Ford Motor Credit Company separately appeals, from stated portions of an amendedorder of the Supreme Court, Richmond County (Maltese, J.), dated March 26, 2009, which, interalia, denied those branches of their respective motions which were pursuant to CPLR 4404 to setaside the jury verdict in favor of the plaintiffs in action No. 2 and against them and for judgmentas a matter of law or, alternatively, to set aside the jury verdict in favor of the plaintiffs in actionNo. 2 and against them as contrary to the weight of the evidence and for a new trial, and grantedthat branch of the cross motion of the plaintiffs in action No. 1 which was to set aside the juryverdict in favor of the defendants and against the plaintiffs in action No. 1, and (2) the defendantFord Motor Company appeals, and the defendant Ford Motor Credit Company separatelyappeals, from an order and judgment (one paper) of the same court dated June 17, 2009, which,inter alia, upon the amended order dated March 26, 2009, and upon the jury verdicts, and uponthe stipulations of the plaintiffs in action No. 2 to reduce the verdicts in their favor with respectto damages, is in favor of Michael J. Motelson, as Administrator of the Estate of StevenMotelson, in the principal sum of $1,327,000, is in favor of Enid Motelson in the principal sumof $3,673,000, and directed a new trial [*2]in action No. 1 on theissue of damages only.
Ordered that the appeals from so much of the amended order as denied those branches of theappellants' respective motions which were pursuant to CPLR 4404 to set aside the jury verdict infavor of the plaintiffs in action No. 2 and against them and for judgment as a matter of law or,alternatively, to set aside the jury verdict in favor of the plaintiffs in action No. 2 and againstthem as contrary to the weight of the evidence and for a new trial, are dismissed; and it is further,
Ordered that the amended order is reversed insofar as reviewed, on the law, without costs ordisbursements, and that branch of the cross motion of the plaintiffs in action No. 1 which was toset aside the jury verdict in favor of the defendants and against the plaintiffs in action No. 1 isdenied; and it is further,
Ordered that the order and judgment is modified, on the law, on the facts, and in the exerciseof discretion, (1) by deleting the sixth and seventh decretal paragraphs thereof, directing a newtrial in action No. 1 on the issue of damages only, and substituting therefor a provision directingthe entry of a judgment dismissing the complaint in action No. 1 in its entirety, and (2) bydeleting the second, fifth, and eighth decretal paragraphs thereof, awarding Enid Motelsondamages in the principal sum of $3,673,000 and costs in action No. 2; as so modified, the orderand judgment is affirmed, without costs or disbursements, and the matter is remitted to theSupreme Court, Richmond County, for a new trial with respect to damages for Enid Motelson'seconomic loss only, unless within 30 days after service upon her of a copy of this decision andorder, she shall serve and file in the Office of the Clerk of the Supreme Court, Richmond County,a written stipulation consenting to further reduce the verdict in her favor on the issue of damagesfor her economic loss from the principal sum of $3,673,000, to the principal sum of $674,599; inthe event that Enid Motelson so stipulates, then the order and judgment, as so modified, reduced,and amended, is affirmed, without costs or disbursements, and the matter is remitted to theSupreme Court, Richmond County, for the entry of a judgment in action No. 1.
The appeals from so much of the intermediate amended order as denied those branches of theappellants' respective motions which were pursuant to CPLR 4404 to set aside the jury verdict infavor of the plaintiffs in action No. 2 and against them and for judgment as a matter of law or,alternatively, to set aside the jury verdict in favor of the plaintiffs in action No. 2 and againstthem as contrary to the weight of the evidence and for a new trial, must be dismissed, because theright of direct appeal therefrom terminated with the entry of judgment in action No. 2 (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeals from that portionof the amended order are brought up for review and have been considered on the appeals fromthe order and judgment (see CPLR 5501 [a] [1]).
On July 1, 2000, the plaintiffs' decedent, Steven Motelson, was driving a 1998 Ford Explorersports utility vehicle, manufactured by Ford Motor Company (hereinafter Ford), owned by FordMotor Credit Company (hereinafter Ford Credit), and leased to Steven Motelson's business,Dome Property Management, Inc. Steven Motelson's son, Gary Motelson, his grandsons BrianMotelson and Evan Motelson, and a third party, Mitchell Slepian, were passengers in the vehicle.While driving on Route 17, the vehicle accelerated, swerved, and rolled over 3¾ times. Asa result of the accident, Steven Motelson and Brian Motelson died, and the remaining passengerssustained serious injuries.
Gary Motelson and his wife Elissa Motelson, individually and as administrators of the estateof Brian Motelson, and parents and natural guardians of Evan Motelson, commenced action No.1 against Ford and Ford Credit. During the pendency of the instant appeal, Gary Motelson died,and Elissa Motelson was substituted for him. Michael J. Motelson, as administrator of the estateof Steven Motelson, and Steven Motelson's wife, Enid Motelson, individually, commencedaction No. 2 against Ford and Ford Credit. The Motelsons alleged, inter alia, that (1) the speedcontrol cable of the vehicle was defectively designed, causing the vehicle to accelerateunexpectedly, (2) the seat belts were defectively designed, and (3) the roof support system was[*3]defectively designed, causing the roof to collapse on StevenMotelson's head and causing his death. After trial, the jury found that Evan Motelson and BrianMotelson were not wearing their seatbelts, the front seatbelt system was not defective, and thespeed control cable system was not defective. Those findings are not at issue on these appeals.However, the jury found that the roof support system, although reasonably fit for the ordinarypurposes for which it was used, was defectively designed, that Ford was negligent in designing,inspecting, and testing it, and that the defect was "a substantial factor in causing StevenMotelson's injury and death."
With respect to damages, the jury found that 100% of the injuries of Brian Motelson andEvan Motelson were attributable to the fact that they were not wearing seatbelts and, therefore,Brian's estate and Evan were not entitled to recover any damages. The jury awarded no damagesto Gary Motelson, and no damages to his wife, Elissa Motelson, on her derivative claim.However, Michael J. Motelson, as administrator of the estate of Steven Motelson, was awardedthe principal sum of $1,500,000 for loss of earnings, and Enid Motelson was awarded theprincipal sum of $5,000,000 for economic loss.
The defendants separately moved, inter alia, pursuant to CPLR 4404 to set aside the juryverdict in favor of the plaintiffs in action No. 2 and against them and for judgment as a matter oflaw or, alternatively, to set aside the jury verdict in favor of the plaintiffs in action No. 2 andagainst them as contrary to the weight of the evidence and for a new trial. Gary Motelson, ElissaMotelson, and Evan Motelson, as plaintiffs in action No. 1, cross-moved to set aside the juryverdict in favor of the defendants and against them in action No. 1, inter alia, on the ground thatGary Motelson and Evan Motelson suffered emotional distress because they were in StevenMotelson's zone of danger. The Supreme Court concluded that the plaintiffs established liabilityfor Steven Motelson's wrongful death based upon a design defect in the roof of the vehicle andbased upon the "second collision doctrine," under which a plaintiff must prove that "the injurieswere more severe than they would have been had the product been properly designed." TheSupreme Court concluded that the award in the principal sum of $1,500,000 for lost earnings wasexcessive because the plaintiffs' economic expert estimated that lost earnings amounted only to$1,327,000. Based upon evidence that Steven Motelson intended to expand his business, theSupreme Court further concluded that the award of $5,000,000 to Enid Motelson for economicloss resulting from Steven Motelson's death was not excessive. However, the award for economicloss was reduced by $1,327,000 to $3,673,000, to avoid duplication. The Supreme Court furtherconcluded that Gary Motelson and Evan Motelson suffered psychiatric injury because they werein Steven Motelson's zone of danger when the roof of the vehicle caused Steven Motelson's fatalhead injuries and, therefore, that Gary Motelson, Elissa Motelson, and Evan Motelson wereentitled to damages. The plaintiffs in action No. 2 stipulated to accept a reduced award in theprincipal sums of $1,327,000 for lost earnings and $3,673,000 for economic loss other than lostearnings.
The jury's finding that there was a design defect in the roof of the vehicle, which caused theroof to buckle during the crash and caused Steven Motelson's death, was supported by legallysufficient evidence and the weight of credible evidence (see Adams v Genie Indus., Inc., 14 NY3d 535, 543-544 [2010];Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Godfrey v G.E. Capital Auto Lease, Inc., 89 AD3d 471, 477[2011]; Nicastro v Park, 113 AD2d 129, 135 [1985]) based, inter alia, on evidence of asafer and feasible design (see Adams v Genie Indus., Inc., 14 NY3d at 543-544), which"would have avoided" Steven Motelson's life-threatening injuries (Burgos v Lutz, 128AD2d 496, 497 [1987]; see Garcia v Rivera, 160 AD2d 274, 276-277 [1990]). Contraryto the defendants' contention, the jury's verdict sustaining that cause of action was notinconsistent with its rejection of a breach of warranty cause of action based upon whether theroof was fit for the ordinary purposes for which such system is used (see UCC 2-314 [2][c]). The verdict sheet and the jury instructions directed the jury to consider these causes ofaction as separate and distinct, and authorized the jury to reach contrary conclusions on those twocauses of action. Under the particular circumstances of this case, the jury could have concludedthat the roof was fit for ordinary purposes but not crashworthy due to a design defect (seeLarsen v General Motors Corp., 391 F2d 495, 500-501 [8th Cir 1968]; Bradley v Earl B. Feiden, Inc., 8 NY3d265, 273-274 [2007]).
In addition, the jury's finding that Steven Motelson was not negligent is not [*4]inconsistent with its finding that the speed control cable system wasnot defectively designed. The issue of whether there was a design defect in the speed controlcable system was not "inextricably interwoven" with the issue of whether Steven Motelson wasat fault in the happening of the accident (see Pavlou v City of New York, 8 NY3d 961, 963 [2007]). Theplaintiffs bore the burden of proving that the speed control cable system was defectivelydesigned, while the defendants bore the burden of proving Steven Motelson's comparativenegligence (see CPLR 1412; PJI3d 1:60). The jury found that the cause of the vehiclerolling onto the median was not proven.
The issue of whether Gary Motelson and Evan Motelson suffered emotional distress becausethey were placed in Steven Motelson's zone of danger (see Bovsun v Sanperi, 61 NY2d219, 230-231 [1984]) was not submitted to the jury. The jury was instructed that, if it found thatthe plaintiffs were entitled to recover from the defendants, it "must also include in [the] verdictdamages for any mental suffering; emotional, psychological injuries. These are subsumed. . . into the pain and suffering questions" (see PJI3d 2:284). However, noseparate causes of action sounding in infliction of emotional distress or zone-of-danger damagesresulting from Steven Motelson's injuries and death were submitted to the jury. The verdict sheetasked whether the negligent design of the roof was "a substantial factor in causing StevenMotelson's injuries and death," and not whether that defect caused injuries to any other plaintiff.Therefore, the Supreme Court should not have ruled that they were entitled to damages on thattheory (see Pavel Yutsis Physician, P.C.v Staten Is. Univ. Hosp., 47 AD3d 781 [2008]).
With respect to damages for Steven Motelson's wrongful death, EPTL 5-4.3 (a) definesdamages to be awarded for wrongful death as "such sum" which the factfinder "deems to be fairand just compensation for the pecuniary injuries resulting from the decedent's death to thepersons for whose benefit the action is brought." The persons for whom a wrongful death actionis brought are the distributees of the decedent (see DeLuca v Gallo, 287 AD2d 222, 225[2001]), who in this case were Steven Motelson's wife, Enid Motelson, and his adult children.The jury awarded wrongful death damages to Enid Motelson, but not to the adult children. Sincedamages for wrongful death are limited to pecuniary loss, damages for loss of society, affection,conjugal fellowship and consortium are not recoverable. However, pecuniary loss consisting ofloss of support, voluntary assistance, and possible inheritance and other incidental expenses, isrecoverable (see Gonzalez v New York City Hous. Auth., 77 NY2d 663, 667 [1991]).
The defendants do not contest that the plaintiffs established lost earnings of $1,327,000, and$174,599 for loss of services, for a total of $1,501,599 in damages. The calculation of damagesfor loss of inheritance is generally a question of fact for the jury, and does not require "dollarsand cents proof" (Parilis v Feinstein, 49 NY2d 984, 985 [1980]). The award may bebased upon the decedent's age, character, earning capacity, life expectancy, and the circumstancesof the distributees (see Facilla v New York City Health & Hosps. Corp., 221 AD2d 498[1995]). Under all of the circumstances adduced at the trial, an award to Enid Motelson in theprincipal sum of $674,599 for economic loss, consisting of $174,599 for loss of services, and anadditional $500,000 for loss of inheritance, constitutes reasonable compensation (seeCPLR 5501).
The parties' remaining contentions are either without merit (see Wengenroth v Formula Equip. Leasing,Inc., 11 AD3d 677, 680 [2004]; Winckel v Atlantic Rentals & Sales, 159 AD2d124, 129 [1990]; cf. Starobin v Niagara Mach. & Tool Works Corp., 172 AD2d 64, 65[1991]; Bickram v Case I.H, 712 F Supp 18, 22 [ED NY 1989]), or not properly beforethis Court. Florio, J.P., Leventhal, Austin and Roman, JJ., concur.