189 A.D.2d 199 | N.Y. App. Div. | 1993
OPINION OF THE COURT
On August 21, 1988, Jane Doe, a registered nurse at Faxton Hospital in Utica, was stuck by a needle contaminated with the blood of an AIDS patient. The patient, an inmate at Mid-State Correctional Facility, was receiving medication and fluids intravenously. As he became increasingly agitated and irrational, he removed his oxygen mask and dislodged the needle leading to the Hep-Lock port on the intravenous apparatus installed on his left arm. Following a grand-mal seizure apparently induced by a lack of oxygen, the patient became even more combative. While attempting to restrain the patient, the hospital staff requested assistance from two correction officers who were present, but they refused to intervene. After Jane Doe and three of her fellow workers managed to return the patient to his hospital bed, they attempted to apply leather restraints. The patient again became very agitated. Realizing that the contaminated needle was within the patient’s grasp, one of the nurses let go of his left leg in an attempt to secure the needle. As she retrieved it, the patient’s leg jerked, bumping the nurse’s arm and driving the needle into the gloved hand of Jane Doe, who was restraining the patient. Throughout the struggle, the correction officers stood by, clear of the patient’s bed, and offered no assistance to the struggling hospital staff.
Jane Doe tested negative for HIV immediately following the incident, but, upon a retest in February of 1989, tested positive for it.
Jane Doe and her husband Joseph Doe commenced this negligence action against the State.
Past medical expenses—$1,700
Future medical expenses—$59,000
Pain and suffering to date—$750,000
Loss of wages—$43,850
Future pain and suffering—$3,500,000.
The court awarded Joseph Doe $1,016,642 in damages allocated as follows:
Past loss of consortium—$250,000
Future loss of household services—$16,642
Future loss of consortium—$750,000.
The court denied in part Jane Doe’s claim for future economic loss, without prejudice to the right of her distributees to maintain a wrongful death action for pecuniary loss subsequent to her death.
On appeal, claimants contend that the court erred in failing to make a complete award for future economic loss. In addition, they contend that CPLR article 50-B is unconstitutional and that its application under these circumstances violates the Americans with Disabilities Act of 1990 (42 USC § 12101 et seq.). The State contends in its cross appeal that the damage awards made to Jane Doe for pain and suffering and to Joseph Doe for loss of consortium are excessive, but concedes that the court erred in failing to make a complete award for Jane Doe’s future economic loss.
Although it acknowledges that the negligence in the instant case was "extreme” and the tragedy "preventable”, the State contends that the $4,250,000 aggregate award made for Jane Doe’s past ($750,000) and future ($3,500,000) pain and suffering is excessive. Relying on academic commentary, the State contends that we should scrutinize verdicts that might have been inflated by passion and sympathy and maintain their proportionality by recognizing that no amount of money can undo most injuries (see generally, Newman, Damages: A Call for Meaningful Precedents, 3 Pace L Rev 605 [1983]; Louis, Allocating Adjudicative Decision Making Authority Between The Trial And Appellate Levels: A Unified View Of The Scope of Review, The Judge/Jury Question, And Procedural Discretion, 64 NC L Rev 993 [1986]). The State proposes that $2,750,000 would reasonably compensate Jane Doe for her past and future pain and suffering and that $250,000 would fairly compensate Joseph Doe for his derivative claim.
Expert testimony adduced at trial established that the average individual infected with HIV will develop full-blown AIDS within eight to 10 years following seroconversion.
Dr. Saah further testified that there is considerable psychological and emotional pain associated with AIDS. Jane Doe’s
Based on the above, we do not find that the award made for Jane Doe’s past and future pain and suffering deviates materially from what would be reasonable compensation (see, CPLR 5501 [c]).
THE AWARD FOR JOSEPH DOE’S LOSS OF CONSORTIUM.
Claimants Jane and Joseph Doe were married in 1969 and have three children. The record supports the court’s findings that the Does are a close-knit family, sharing considerable affection and love for one another, and that Jane Doe provided a variety of services as wage-earner, homemaker, spouse and mother, of which Joseph Doe will be deprived during her suffering and upon her death from AIDS. There was testimony that they engaged in unprotected sex two or three times a week following the August 21, 1988 incident through the date that she tested HIV positive in March of 1989, and that the quality and extent of their sexual practices has now been drastically altered because of Jane Doe’s infection. The Does live with the constant fear that their continued sexual activity creates a risk of infection to Joseph Doe.
With respect to Joseph Doe’s future loss of consortium, the court noted: "Mr. Doe’s marital life in the coming five years will simply and utterly be destroyed. The worst is yet to come. For the immediate future, he will continue to have to deal with their day-to-day frustrations of not being able to talk freely, to share their lives free of inhibition. Always looming over his time with her is the impression he has that their time together is limited and any moment could be the beginning of the end of their time together * * * Mr. Doe will gradually have to suffer the experience of her slowly drifting and wasting away, providing him no more comfort or affection until the day she dies.” (155 Misc 2d 286 [partially published].)
JANE doe’s FUTURE ECONOMIC LOSS.
At trial, claimants sought to recover for Jane Doe’s future economic damages consisting of her lost wages, her impairment of earning potential, and the value of her services as a homemaker to her husband and children. Claimants’ expert, an economist, testified that, based upon specified assumptions,
The State countered by submitting the testimony of its own economist, who opined that the present value of Jane Doe’s future lost wages was $308,006, assuming a "normal” work-life expectancy until claimant was 56 years of age.
In considering Jane Doe’s claim for future economic damages, the court limited her recovery to only those damages she was expected to suffer in her lifetime. Having determined that Jane Doe faced an imminent and certain death from AIDS, the court was unwilling to make an award for the economic loss proximately caused by defendant’s negligence beyond her reasonable postinjury life expectancy; the court stated that her distributees could bring a wrongful death action upon her death. That was error.
It is well established that loss of income, including diminished future earning capacity, is a proper element of damages in a personal injury action (see, Weir v Union Ry. Co., 188 NY 416, 418). Indeed, "a tort victim suing for damages for permanent injuries is permitted to base his recovery 'on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury’ [citation omitted]” (Sea-Land Servs. v Gaudet, 414 US 573, 594).
The Court of Claims erred in limiting Jane Doe’s future economic loss to her postinjury life expectancy (see, Restatement [Second] of Torts § 924, comment c, at 524-526). Only an award based on one’s preinjury life expectancy truly reflects the injured party’s actual loss (7A Warren’s, New York Negligence, Personal Injuries, § 7.04 [1], at 416-417 [4th ed 1984]). To hold otherwise would in effect reward defendant for having successfully injured Jane Doe severely enough to shorten her life span (Rummo v Celotex Corp., 726 F Supp 426, 428 [ED NY 1989]). Thus, we conclude that, where the proof in the record permits the loss to be ascertained with reasonable certainty (see, Askey v Occidental Chem. Corp., 102 AD2d 130, 136), damages attributable to an injured person’s lost earning capacity due to injury must be awarded directly to that person during his or her lifetime utilizing a preinjury life expectancy. That rule must apply in those situations where, as here, an actual shortened life expectancy can be determined prior to death (see, Rummo v Celotex Corp., supra, at 428-429).
The court’s determination that Jane Doe’s distributees could be compensated for any such loss by bringing a wrongful death action was erroneous. It is axiomatic that her distributees could maintain an action for wrongful death only if she had a right of recovery for personal injuries at the time of her
The economic and medical proof in the record is sufficient for us to determine the amount of damages to compensate Jane Doe adequately for her future economic loss. Based on that proof, we find that Jane Doe, who was 42 years of age at the time of trial and earning approximately $30,000 annually, will likely become completely disabled from AIDS in 1996. We further find that she has a reasonable work-life expectancy as a registered nurse through the age of 58. Utilizing the calculations offered by the economists and making allowances for lost fringe benefits as a percentage of income and without any adjustment for Jane Doe’s personal consumption (but see, Milbrandt v Green Refractories Co., 79 NY2d 26, 32, n 1), we determine that the impairment of earnings and lost wage component of Jane Doe’s future economic loss is $450,000. Additionally, we determine that the value of Jane Doe’s services as a homemaker is $275,000. Thus, the judgment should be modified to provide for such an award and the matter remitted to the Court of Claims for purposes of determining the amount of the judgment to be entered pursuant to article 50-B (see, CPLR 5041 [e]).
CONSTITUTIONALITY AND APPLICABILITY OF CPLR ARTICLE 50-B.
Because the future damage awards made to both claim
Claimants contend that the periodic payment provision of article 50-B requiring future damage awards in excess of $250,000 to be paid over a period of time instead of in one lump sum deprives them of their property without due process of law. They also maintain that the failure of the article to define "discount rate” (CPLR 5041 [e]) renders it impermissibly vague and makes consistent implementation of the article impossible. We disagree. A legislative enactment is deemed to
Claimants’ contention that CPLR article 50-B is unconstitutionally vague because it fails to define the term "discount rate” also is without merit. Although the void-for-vagueness doctrine is the "first essential of due process” (Connally v General Constr. Co., 269 US 385, 391), "statutes are not automatically invalidated on the ground[s] of vagueness simply because of [a] difficulty in determining whether certain
Because we find that the term "discount rate” as used in CPLR article 50-B can be determined with reasonable certainty, we conclude that the enactment is not unconstitutionally vague (see, Foss v City of Rochester, supra, at 253). The fact that a number of trial courts have applied different discount rates in structured judgment determinations does not, in our view, render the enactment unconstitutionally vague (see, e.g., Rohring v City of Niagara Falls, 153 Misc 2d 1001; Peterson v Zuercher, 152 Misc 2d 684; Ursini v Sussman, 143 Misc 2d 727 [construing comparable provision in CPLR art 50-A]; see also, Marulli v Pro Sec. Serv., 151 Misc 2d 1077 [App Term, 2d Dept]). In providing that present value determinations are to be made "in accordance with generally accepted actuarial practices by applying the discount rate in effect at the time of the award” (CPLR 5041 [e]), the Legislature merely provided for a flexible approach to such determinations, an approach not uncommon in previous practice (see, e.g., 1 NY PJI2d 647-648). Moreover, although claimants asserted that the term "discount rate” is confusing and impossible to implement with any consistency, their economist determined that a value of 6% was appropriate.
We reject claimants’ contention that application of article 50-B to their award violates the Americans with Disabilities Act. We note at the outset that article 50-B applies to all tort victims and not only to those suffering from a disability enumerated in the Act. In addition, the Act was intended to prevent discrimination by reason of such a disability in employment, the provision of public services and public accommodation, and access to buildings and transportation (see, 42 USC § 12101 [a] [3]; §§ 12111-12117 [employment], 12131-12165 [public services], 12181-12189 [public accommodations]; HR Rep No. 485 [I], 101st Cong, 2d Sess, reprinted in 1990 US Code Cong & Admin News 268-269). Assuming, arguendo, that the Act applies to a situation such as presented by this case,
Accordingly, the judgment should be modified to provide Jane Doe with an award for all her future economic loss (impairment of earnings and lost wages of $450,000 and services as a homemaker of $275,000) and the matter remitted to the Court of Claims for purposes of determining the amount of the judgment to be entered pursuant to article 50-B.
Pine, J. P., Boomer, Davis and Boehm, JJ., concur.
Judgment unanimously modified, on the law and facts, and as modified, affirmed, without costs, and matter remitted to Court of Claims for further proceedings in accordance with the opinion by Fallon, J.
. Joseph Doe asserted a claim in his own right alleging that the State’s negligence had exposed him to a risk of HIV contamination. Having determined that the State owed no duty of care to Joseph Doe, the Court of Claims dismissed the claim thereby limiting his recovery to his derivative
. The State’s cross appeal is limited to issues related to the court’s damage award, liability having been conceded.
. Seroconversion occurs when the blood first tests positive for HIV.
. Claimants’ economist assumed that Jane Doe was 42 years of age, that she had been married 20 years, that she and her husband had three dependent children then aged 18, 15 and 10 years, that her 1991 earnings were $29,616, that Jane Doe would cease working in 1996 due to disability from AIDS and that Jane Doe had a work-life expectancy from 18 to 24 years.
. The State’s economist also assumed for purposes of his computation that Jane Doe would cease working altogether in 1996.
. For purposes of making the calculation required by CPLR 5041 (e), we find, as did the Court of Claims, that the award is intended to compensate Jane Doe for a period of 5.5 years. There is no need to adjust our award for Jane Doe’s impairment of earnings and lost wages to reflect those damages awarded by the court through her anticipated date of death; our award is intended to compensate her from that date forward throughout the remainder of what we have determined to be her reasonable life expectancy had the injury not occurred.
. The amended judgment merely segregates the components of the future payments to be made to Jane Doe into those that were intended to compensate her for future pain and suffering and medical expenses, which terminate upon the death of the judgment creditor (see, CPLR 5045 [a]), from the award made for her future lost wages through the date of death, which do not. Concerning the latter payments, CPLR 5045 (b) provides where pertinent that "[t]he portion of any periodic payment allocable to loss of future earnings shall not be reduced or terminated by reason of the death of the judgment creditor, but shall be paid to persons to whom the judgment creditor owed a duty of support immediately prior to his death to the extent that such duty of support exists under applicable law at the time of the death of the judgment creditor”.
. The Court of Claims did not decide either application. The court’s entry of judgment pursuant to article 50-B constitutes implicit denial of them.
. For the same reason, we reject claimants’ contention that article 50-B deprives Jane Doe’s distributees of property without due process of law because it fails to ensure that any unpaid future economic loss accruing upon her death will go to the same individuals who would have had a statutory cause of action for wrongful death to recover for their pecuniary loss (see, EPTL 5-4.4). As was noted in Montgomery v Daniels (supra), the Legislature may alter or abolish existing rules of recovery provided it acts reasonably. In the event that Jane Doe dies prior to payment of all the periodic payments allocated to loss of future earnings, Joseph Doe, their children or "any party in interest” may apply to the Court of Claims to modify the judgment to award and apportion future payments (CPLR 5045