170 A.D.2d 321 | N.Y. App. Div. | 1991
Judgment, Supreme Court, Bronx County (Hansel L. McGee, J.), entered August 15, 1989, incorporating a jury verdict which awarded $1,000,000 for decedent’s pain and suffering and $110,000 for plaintiff’s pecuniary loss (both sums reduced by 25%, the amount of negligence attributed to decedent), plus $7,664.03 in stipulated medical expenses, unanimously modified on the law, facts and the exercise of discretion, without costs, and remanded for a new trial unless the plaintiff stipulates, within twenty days of the date of entry of the order herein, to reduction of the gross award for pain and suffering to $300,000, and $100,000 for plaintiff’s pecuniary loss, with all other elements of the verdict to be sustained, in which case the judgment, as so modified, is affirmed, without costs.
We agree that defendants voluntarily assumed a special duty (Florence v Goldberg, 44 NY2d 189; cf., Bonner v City of New York, 73 NY2d 930) to protect plaintiff’s decedent, a student of JHS 123, from a neighborhood bully who was often seen on school grounds, and who had threatened decedent with harm; the evidence further supported the verdict with respect to defendants’ breach of that duty, proximately resulting in the fatality. However, there is considerable doubt as to whether and to what extent decedent experienced any conscious pain and suffering throughout the nineteen days between injury and death (Cook v Erwin, 30 AD2d 579, 580), during which time he remained in varying degrees of coma (Blunt v Zinni, 32 AD2d 882, 883, affd 27 NY2d 521; Alfieri v Cabot Corp., 17 AD2d 455, affd 13 NY2d 1027). Even relatively brief periods of consciousness would not warrant the kind of award plaintiff received here (see, Parilis v Feinstein, 71 AD2d 617, affd 49 NY2d 984), especially where the injured party lapsed into coma almost immediately after injury (Tenczar v Milligan, 47 AD2d 773, lv denied 36 NY2d 645). Concur— Murphy, P. J., Carro, Kupferman, Asch and Kassal, JJ.
