Leonard P. Cummins, As Successor Administrator of the Estate of Karen Ann
Cummins, Deceased, Appellant, v. County of Onondaga, Respondent, et al.,
Defendant
84 N.Y.2d 322, 642 N.E.2d 1071, 618 N.Y.S.2d 615 (1994).
October 25, 1994
4 No. 159 (1994 NY Int. 161) Decided October 25, 1994
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Robert E. Lahm, for appellant.
Joanna Gozzi, for respondent.
BELLACOSA, J.:
The action is for wrongful death and conscious pain and suffering, but
the appeal relates exclusively to whether there was any line of
reasoning which could support the jury's damage verdict for conscious
pain and suffering. The Appellate Division affirmed the trial court's
order setting aside the pain and suffering award, with two Justices
dissenting to uphold the jury verdict. We agree with the lower courts
that plaintiff's evidence here failed to meet the minimum legal
threshold and affirm the order of the Appellate Division.
On the night of January 24, 1988, decedent was killed in a single-car
accident when she lost control of her car, causing it to veer off a
county road, flip over and come to rest upside down in a pond of water
adjacent to the roadway. The Onondaga County Medical Examiner
determined drowning and hypothermia as the causes of death. Decedent's
estate representatives sued the County. Liability was asserted based
on the County's failure to provide adequate or proper design of the
highway, adequate posting and lighting and maintenance of the roadway.
The jury found the County negligent in failing to install a guardrail
beside the road and determined that decedent was 50% at fault. The
jury awarded decedent's estate $63,700 for the wrongful death
pecuniary loss and $400,000 for her pain and suffering. On the
County's motion to set aside the verdict, the trial court granted
judgment notwithstanding the verdict and vacated the conscious pain
and suffering award as a matter of law. The Appellate Division
affirmed, stating that "(t)here was no evidence presented by plaintiff
at trial from which the jury could infer the decedent was conscious"
(198 AD2d 875, 875). We agree.
SNIPPETS:
The action is for wrongful death and conscious pain and suffering, but the appeal relates
The Appellate Division affirmed the trial court's order setting aside the pain and suffering
We agree with the lower courts that plaintiff's evidence here failed to meet the minimum
On the night of January 24, 1988, decedent was killed in a single-car accident when she lost
Decedent's estate representatives sued the County.
On the County's motion to set aside the verdict, the trial court granted judgment
The Appellate Division affirmed, stating that "here was no evidence presented by plaintiff at
Plaintiffs have the threshold burden of proving consciousness for at least some period of
Corp., 56 NY2d 573, 574-575; see also, McDougald v Garber, 73 NY2d 246).
Police officers, who arrived at the scene within minutes after the rollover accident,
Plaintiff additionally urges in support of this appeal that we apply the doctrine of
That would have to be weighed carefully in an appropriate case, because availability and
Chief Judge Kaye and Judges Simons, Titone, Smith, Levine and Ciparick concur.
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