OPINION OF THE COURT
Defendant moves to set aside a verdict of the jury which made: (1) an award of $6,000,000 to the estate of Maracallo for the conscious pain and suffering of Daniel Maracallo, decedent (a drowning victim), and (2) an award of $4,000,000 to Maria Maracallo, his mother, with regard to her cause of action for negligent infliction of emotional harm.
Issues Presented
In addition to the traditional postverdict motion to set aside the verdict of the jury for insufficiency and/or as contrary to the weight of the evidence and/or for excessiveness, the defendant raises several other novel legal issues, namely:
1. Does a cause of action exist: (a) for the negligent failure to provide timely information to a parent regarding a deceased or missing child, or (b) for negligence in locating the body of the missing child?
2. May the issue of damages for the alleged negligent infliction of emotional distress be bifurcated for discrete acts and
Facts
Plaintiffs decedent,
The teachers who were assigned to supervise Daniel in fact failed to learn that the decedent was missing until after everyone left the park which officially closed at 5:00 p.m. At apparently 7:00 p.m. the teachers and the other students left the vicinity of Dorney Park and returned to Bronx County without having found Daniel and without having notified his mother Maria Maracallo that he was missing. Upon returning to the Bronx at approximately 9:00 p.m., the principal and assistant principal notified Maria Maracallo that Daniel was missing. At approximately 1:00 a.m., maintenance personnel at Dorney Park discovered the body of Daniel Maracallo in the wave pool. In the intervening hours, and while decedent’s body lay at the pool’s bottom, the pool had been used by the lifeguards for relay races and other activities.
As to the cause of action for damages for pain and suffering, expert testimony was adduced which was essentially unrefuted,
For each theory of negligence, the jury was asked to consider the issues of proximate cause as well as apportionment of liability with Dorney Park, and the jury was provided with a very detailed special verdict questionnaire which clearly distinguished each issue and the alleged damages therefor. As to the mother’s cause of action for negligent infliction of emotional distress, the court charged the jury that the plaintiff could recover if, inter aha, the plaintiff established that the defendant was at fault in not taking appropriate action to timely notify plaintiff that Daniel was missing and to locate Daniel’s body. The court went on to explain that the plaintiffs claim for damages encompassed two separate theories of injury each of which involved an apportionment with Dorney Park in discrete ways. The court determined to separately charge these theories and to have the jury delineate the damages in order to preserve a proper record, both for trial and in the event of an appeal. In that regard, the court charged in part as follows:
“In this cause of action plaintiff claims that the failure to provide her with timely accurate information resulted in emotional distress to her in two discrete ways. First she claims that she sustained one form of emotional distress resulting from the period of uncertainty from the time she learned that Daniel Maracallo was missing, until the time she learned that he was in fact dead; and secondly, plaintiff claims that because the body of her son was allowed to lay in the bottom of the pool until it was discovered the following day, she has been caused to suffer additional emotional distress arising out of the recollections by her of this alleged indignity to the body*707 of her deceased son.”
As to damages for the alleged emotional injury, the court charged the jury in accordance with the language of PJI 2:284, as modified:
“If you find that plaintiff Maria Maracallo, in her individual capacity is entitled to recover from the defendant, your verdict must include damages for mental suffering, and all emotional and psychological injury resulting from the emotional distress caused by the wrongful act of the defendant.
“However, you are not to award any damages for the normal grief which [a] parent suffers as a result of the death of a child. The law does not permit recovery of damages arising out of the normal grief associated with the death of a child; and in this law suit, there is no claim by Maria Maracallo to recover any such damages resulting solely from the death of her son Daniel Maracallo. However, the plaintiff is seeking damages for the specific emotional distress which was allegedly caused by the fault of the defendant with respect to the information or lack of timely information that it provided, and with respect to the untimely discovery of Daniel Maracallo’s body. In other words Maria Maracallo can only recover damages for the heightened grief and emotional upset for these alleged wrongs, which is separate and apart from the ordinary grief and emotional upset caused to a parent by the death of a child.”
Argument
On the present motion, defendant argues, first, that plaintiff Maria Maracallo’s claim of negligent infliction of emotional distress should have been dismissed. Defendant contends that, under the facts in this case, no cause of action exists either for negligent transmission of information and/or lack of timely information to the parent regarding a missing child, or for negligent location of the body of a deceased child. The New York City Board of Education (NYCBOE) contends that any duty which might have been involved under the circumstances ran to Daniel Maracallo, and that duty was not transferable to Maria Maracallo. Defendant argues further that prior to the discovery of the body, its employees were not at fault since they provided family members with accurate information, i.e., that Danny was
Law Pertaining to Posttrial Motions
Sufficiency and Weight of the Evidence
The inherent common-law power of the court to set aside a jury verdict has been codified in New York in CPLR 4404 (a). Despite the codification of this long recognized discretionary power of the court to set aside a verdict, it has been stated that the proper standard for setting aside a jury verdict has often been found elusive and “has long defied precise definition” (Nicastro v Park,
It is axiomatic that a jury verdict is entitled to the benefit of every fair and reasonable inference which can be drawn from the evidence, and that it is the function of the jury, not the court, to make credibility determinations. It has often been observed, however, that “whether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination which is to be distinguished from the question of whether a jury verdict, as a matter of law, is supported by sufficient evidence” (Nicastro v Park, 113 AD2d, supra at 132). In addition, “[although these two inquiries may appear somewhat related, they actually involve very different standards and may well lead to disparate results” (Cohen v Hallmark Cards,
As observed in Cohen (supra), whether a jury verdict is against the weight of the evidence is a factual determination which “involves what is in large part a discretionary balancing of many factors,” whereas “[flor a court to conclude as a matter of law that a juiy verdict is not supported by sufficient evidence . . . requires a harsher and more basic assessment of the jury verdict” (Cohen v Hallmark Cards, 45 NY2d, supra at 499). The latter is a legal determination whereas the former is a factual
Minimum Sufficiency for Pain and Suffering Award
“[R] eco very for noneconomic losses such as pain and suffering . . . rests on ‘the legal fiction that money damages can compensate for a victim’s injury’. We accept this fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong” (McDougald v Garber,
To obtain the “benefit” of this legal fiction the law requires as a “prerequisite to recovery” that the victim of a tort have “cognitive awareness” (McDougald v Barber, supra at 255), and therefore the plaintiff has the “threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award of damages for pain and suffering” (Cummins v County of Onondaga,
Often when unconsciousness or death occurs shortly after a tort, it is difficult, sometimes impossible, to determine if a decedent suffered or was actually conscious of any pain. In those instances, the jury, as well as the reviewing court, must rely upon inferences drawn from sparse circumstances in order to determine the degree of consciousness. (See, e.g., Torelli v City of New York,
Excessive or Inadequate Damage Awards
The common-law standard for claimed excessiveness or inadequacy at both the trial and appellate levels was that the jury verdict could not be overturned unless the award “is so disproportionate as to shock the conscience of the court.” (See e.g., Grimaldi v Finch,
Other Relevant Damage Awards
The cases dealing with these types of noneconomic awards are either distinguishable, or too few, or too remote in time to provide meaningful guidance as to what would be considered reasonable compensation for the noneconomic damages sustained herein. (But see, Torelli v City of New York,
Discussion
As a general rule, no recovery can be had for negligent infliction of emotional distress. If the present plaintiff is permitted to recover such damages in this case, it must be because the case falls into one of the few recognized exceptions to that exacting doctrine.
In Johnson v State of New York (
“The first is the minority rule permitting recovery for emotional harm resulting from negligent transmission by a telegraph company of a message announcing death.
“The second exception permits recovery for emotional harm to a close relative resulting from negligent mishandling of a corpse. Recovery in these cases has ostensibly been grounded on a violation of the relative’s quasi-property right in the body. It has been noted, however, that in this context such a ‘property right’ is little more than a fiction; in reality the personal feelings of the survivors are being protected.” (Citations omitted and emphasis added.)
The Court in Johnson concluded that the hospital was negligent in failing to ascertain the proper next of kin when it mistakenly transmitted the death notice.
Similarly, in Smith v St. Joseph’s Hosp. (
Defendant NYCBOE contends that the plaintiff Maria Maracallo did not and cannot establish a cause of action for negligent infliction of emotional distress. Defendant argues that the decision in Lando (supra) can be distinguished on the ground that in Lando, the deceased’s body was located on the grounds of the psychiatric hospital, whereas in the present case, the NYCBOE argues, it had no ability to control the events subsequent to the drowning.
The defendant fails to recognize that its duty to the deceased was a continuing duty. In postulating that the NYCBOE had no ability to conduct a further search after Dorney Park officially closed, the NYCBOE ignores what a parent would have done under similar circumstances. In other words, the fact that the NYCBOE “delegated” its duty to locate Daniel to Dorney Park does not change the circumstance that the NYCBOE had the duty to act in the place of a reasonable parent. In the first instance, no reasonable parent would have left the park without the child, and no reasonable parent, even if barred from access to the park, would have left the area until the missing child was located. At the very least a reasonable parent would have insisted upon the assistance of local authorities to gain access to the park and for a search thereof. The decision in Lando is controlling here, and plaintiff may properly recover damages for emotional distress.
Damages for Emotional Distress
At the outset, defendant claims that the court permitted a “double” recovery for emotional distress. This claim is rejected,
Obviously, the duty of the defendant and Dorney Park, and their alleged fault during each of these discrete periods was quite different. Bifurcation allowed the jury not only to assess the damages for each distinct period but also to apportion the relative alleged fault of each entity in each period. It was the intention of this court to have the jury delineate which damages and fault related to these two distinct time periods, not only to be able to determine if the quantum of damages and apportionment were appropriate on a posttrial motion, but to preserve for appellate review a record of the jury’s deliberations in the event either of these two particular claims were found to be legally untenable or insufficient. This court does not believe that the jury could have mistakenly confounded an award of damages for each of the distinct time frames (i.e., the emotional injury during the period of uncertainty ending with knowledge of the decedent’s death vis-a-vis the emotional distress occasioned by her recollections of mishandling of the body after she learned of his death). Each of these issues was carefully explicated and delineated as separate and distinct elements of damages in the court’s charge and on the special verdict sheet. The jury apportioned fault with respect to the first period of time 85% against the defendant NYCBOE and 15% against Dorney Park, whereas with respect to negligence in locating the body, they attributed fault 30% against defendant NYCBOE and 70% against Dorney Park. The jury evidently found that the NYCBOE was in a better position to keep track of its wards,
The court notes, with respect to the first period of time, that the emotional upset suffered by plaintiff Maria Maracallo, although measured in hours, must have seemed an eternity before she learned the horrible fate of her son. As to the second period of time, while it may be difficult for a jury to determine what part of the grief and emotional shock suffered by the plaintiff was due to the negligent mishandling of decedent’s body, and what part is attributable to the noncompensable grief arising out of the loss of the child, it is clear that such an analysis must be undertaken in every case in which such recovery is properly allowed. The arduous task assigned to the jury was that of distinguishing between the normal grief, in itself implacable, associated with the loss of a child, and the emotional trauma arising from the knowledge that her son’s frail and lifeless body lay buffeted by the currents of the pool as pleasure seekers and even those entrusted with his safety frolicked in the waves. Neither the enormity or difficulty of the task, nor the impossibility of constructing a mechanism to measure with metaphysical certainty the shock to the plaintiffs system, constitutes a basis to deprive the plaintiff of a recovery when the elements of the cause of action have been satisfied by the trial evidence.
The court notes, in addition, that the lack of evidence of psychiatric treatment, while relevant perhaps as to the amount of the recovery, is not a sine qua non in a case seeking damages for negligent infliction of emotional distress. In a recent case in which the defendant sought dismissal of a cause of action seeking damages for negligent infliction of emotional distress involving the mishandling of a corpse, the court noted:
“Moreover, the fact that Anthony J. Massaro has not sought any medical treatment or psychological counseling for his alleged injuries, while relevant to the issue of damages, does not necessarily preclude his recovery. In a case such as this, ‘there exists “an*715 especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious” ’ (Johnson v State of New York,37 NY2d 378 , 382 [1975], quoting Prosser, Torts § 54, at 330 [4th ed]).” (Massaro v O’Shea Funeral Home,292 AD2d 349 , 351 [2d Dept 2002].)
Hence, while it is clear to the court that plaintiff was entitled to an award of damages, it is equally clear that the damages which were awarded were excessive. (See, Duffy v City of New York, supra [1st Dept 1991] [damages for emotional distress arising out of the negligent withholding of news of a son’s death for 18 months, reduced from $1,500,000 to $250,000].)
The court concludes that for the first period of emotional harm $500,000 represents just and fair compensation, and that for the period following that time, $250,000 would be just and fair compensation.
Damages for Conscious Pain and Suffering
In this proceeding the jury awarded $6,000,000 for conscious pain and suffering and apportioned fault 50% against NYCBOE, 2% against decedent, and 48% against Dorney Park. It is evident that plaintiff adduced sufficient evidence from which the jury could conclude that the decedent suffered a most terrible and prolonged demise over a period of approximately six minutes, during which he suffered physical pain, terror, and knowledge of his impending death. As noted above, the degree of consciousness, severity of pain, and duration of apprehension of impending death are all key elements to be considered. Although the City relies on the case of Dontas v City of New York (supra at 869 [verdict as to damages for conscious pain and suffering in favor of a 16-year-old boy who drowned was reduced from $2,000,000 to $50,000]), it was observed by the Second Department in that case that the courts were limited by the testimony of the “experts from both sides [which] indicated that a drowning victim would lose consciousness in just a few minutes.” Even apart from the terror filled period prior to going under for the last time, the evidence in this case supports a conclusion that plaintiff was conscious for a longer period of time, during which he was engaged in a death struggle to extricate himself from currents which buffeted his body and which undoubtedly terrified him and gave him a keen awareness of impending death. It is important to note that in many of the wrongful death/preimpact terror cases, which have upheld and sustained
Conclusion
The motion to set aside the verdict and for a new trial is granted only to the extent of ordering a new trial on the issue of damages unless plaintiff stipulates with regard to either or both causes of action to accept a reduction in the jury’s award of damages to the sum of $2,000,000 as to the cause of action for pain and suffering; and to the sum of $750,000 as to the cause of action for negligent infliction of emotional harm, bifurcated however, as follows: $500,000 for the first period of emotional harm, and $250,000 for the second period of emotional harm. Said reduced awards are subject to appropriate apportionment of fault in accordance with the jury’s findings. Said stipulation^) in her individual and/or representative capacity shall be filed by plaintiff within 30 days of service of a copy of this order with notice of entry. The motion in all other respects is denied. The parties are directed to select a mutually convenient date for a hearing pursuant to CPLR 4533-b, and for such other matters as may relate to the entry of judgment herein.
[Portions of opinion omitted for purposes of publication.]
Notes
. In actuality there are two plaintiffs, i.e., Maria Maracallo in her representative capacity, as administratrix of the estate of decedent with regard to the cause of action for pain and suffering, and Maria Maracallo, individually, with regard to her personal cause of action for negligent infliction of emotional harm. In this writing the word plaintiff shall be used genetically unless the context indicates otherwise.
. In McDougald v Garber (73 NY2d 246, 256 [1989]), the Court of Appeals held that it was impermissible, in assessing nonpecuniary damages, to “segregate the suffering associated with physical pain from the mental anguish [i.e., loss of enjoyment of life] that stems from the inability to engage in certain activities, and to have juries provide a separate award for each.” That type of calculus, which threatens an inflated recovery, is not at issue here; this case does not present any real danger of a duplicative award, in view of the different time frames involved in the calculation of damages for negligent infliction of emotional distress.