Gonzalez v. New York City Housing Authority

• Decision Date: 25 April 1991
• Citation: 569 N.Y.S.2d 915,572 N.E.2d 598,77 N.Y.2d 663
• Parties: , 572 N.E.2d 598 Marta GONZALEZ, Individually and as Administratrix of the Estate of Maria Freire, Deceased, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 915

569 N.Y.S.2d 915

77 N.Y.2d 663, 572 N.E.2d 598

Marta GONZALEZ, Individually and as Administratrix of the Estate of Maria Freire, Deceased, Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Appellant.

Court of Appeals of New York.

April 25, 1991.

Craig P. Murphy, Raymond T. Munsell and Richard Paul Stone, New York City, for appellant.

Brian J. Shoot and Gary S. Ehrlich, New York City, for respondent.

OPINION OF THE COURT

KAYE, Judge.

Plaintiffs--the two grown grandchildren of a woman murdered in an apartment leased from defendant, New York City Housing Authority--were awarded damages for their grandmother's wrongful death, and for her conscious pain and suffering. Contesting neither liability nor the dollar amount of the award, defendant challenges the availability of wrongful death damages on the ground that plaintiffs have not established that they suffered any "pecuniary injuries" (EPTL 5-4.3[a], and it challenges any award for conscious pain and suffering as lacking evidentiary basis. We conclude that damages for both wrongful death and conscious pain and suffering were properly allowed, and therefore affirm the Appellate Division order in plaintiff's favor. ^*

I.

Then 76 years old, decedent was murdered in March 1984 in her apartment in the Isaac Homes Housing Project at First Avenue and 92nd Street, New York City. She was discovered with her hands tied behind her back, a gag wrapped around her jaw and mouth, and her right foot tied to the leg of a bureau. An autopsy revealed fractures of her neck and eight ribs, bleeding where teeth had been knocked out, and bruises on the back of her head and hand. The cause of death was described in the autopsy report as "Asphyxia by gagging. Contusions of scalp, fractures of ribs and cervical spine." Her assailant was subsequently convicted of the murder, and of raping and robbing two other women in the building.

Decedent was survived by her daughter-in-law and two grandchildren: plaintiffs Marta Gonzalez, 21 years old at the time of the murder, and her brother Antonio Freire, then 19. Decedent had raised them both, because their father (her son) had died in 1965 and their mother (her daughter-in-law) was mentally ill; as the Appellate Division observed, decedent had for many years been a "mother" to her grandchildren. At the time of the murder, however, both plaintiffs were financially independent and they no longer lived with her. The granddaughter lived separately with her husband, and the grandson had a construction job and an apartment a few blocks away.

Although decedent had retired from her job as a housekeeper several years before the crime, she remained active. She prepared dinner every night for her daughter-in-law, who was unable to cook for herself. Marta Gonzalez went to her mother's house every day, and frequently had her meals with them. She testified that her grandmother had more patience with her mother than she did, and would help her cope with her mother's condition. Antonio Freire testified that he visited his grandmother every other day, and that she frequently prepared his meals as well.

The decedent also helped her granddaughter in other ways. The month before the crime, when her granddaughter was having marital problems, decedent permitted her to live with her for a week until she could return home. At the time of the murder, Marta Gonzalez was pregnant, and together she and her grandmother planned that the grandmother would care for the child while she returned to school.

After trial, a jury awarded plaintiffs $1,250,000 for wrongful death and $1,000,000 for conscious pain and suffering, which the trial court reduced to $100,000 and $350,000. Defendant appealed to the Appellate Division solely on the damages issues. That court unanimously affirmed the plaintiffs' award, as do we.

II.

Under the common law of England, it was not possible to maintain a damages action for wrongful death. This was the law in New York and other American jurisdictions as well (Liff v. Schildkrout, 49 N.Y.2d 622, 631-632, 427 N.Y.S.2d 746, 404 N.E.2d 1288; Moragne v. States Mar. Lines, 398 U.S. 375, 381-386, 90 S.Ct. 1772, 1777-1780, 26 L.Ed.2d 339). "The result was that it was cheaper for the defendant to kill * * * than to injure [the plaintiff], and that the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy." (Prosser and Keeton, Torts § 127, at 945 [5th ed.].)

That inequity was ameliorated in England in 1846 by passage of the Fatal Accidents Act, creating a remedy for wrongful death. New York was the first State to follow suit, and in 1847 adopted a statutory cause of action for wrongful death, now embodied in EPTL 5-4.1 (Speiser, Recovery for Wrongful Death § 1:9, at 29 [2d ed.]. The statute authorizes the personal representative of a decedent survived by distributees to maintain an action for wrongful death. Since the statute is in derogation of common law, it must of course be strictly construed (Farrar v. Brooklyn Union Gas Co., 73 N.Y.2d 802, 804, 537 N.Y.S.2d 26, 533 N.E.2d 1055; D'Andrea v. Long Is. R.R. Co., 70 N.Y.2d 683, 518 N.Y.S.2d 964, 512 N.E.2d 547, affg. for reasons stated at 117 A.D.2d 10, 501 N.Y.S.2d 891).

The measure of damages obtainable in a wrongful death action "may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought." (EPTL 5-4.3[a].) In 1862, 15 years after enactment of the statute, we held that the statutory word "pecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of value." (Tilley v. Hudson Riv. R.R. Co., 24 N.Y. 471, 476.)

While other States now permit recovery for loss of society (Sea-Land Servs. v. Gaudet, 414 U.S. 573, 587, n. 21, 94 S.Ct. 806, 816, n. 21, 39 L.Ed.2d 9 [listing jurisdictions], New York since its first wrongful death statute has steadfastly restricted recovery to "pecuniary injuries," or injuries measurable by money, and denied recovery for grief, loss of society, affection, conjugal fellowship and consortium (Liff v. Schildkrout, 49 N.Y.2d, at 633-634, 427 N.Y.S.2d 746, 404 N.E.2d 1288, supra). Thus, the essence of the cause of action for wrongful death in this State is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death (Loetsch v. New York City Omnibus Corp., 291 N.Y. 308, 310-311, 52 N.E.2d 448). Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered (Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 406 N.E.2d 1059).

The "pecuniary injuries" caused by a wage earner's death may be calculated, in part, from factors relevant to the decedent's earning potential, such as present and future earnings, potential for advancement and probability of means to support heirs, as well as factors pertaining to the decedent's age, character and condition, and the circumstances of the distributees (Parilis v. Feinstein, supra; Franchell v. Sims, 73 A.D.2d 1, 5-6, 424 N.Y.S.2d 959; Freeman v. Corbin Ave. Bus Co., 60 A.D.2d 824, 825, 401 N.Y.S.2d 224; Kraus v. Ford Motor Co., 55 A.D.2d 851, 852, 390 N.Y.S.2d 495, appeal dismissed 42 N.Y.2d 1093, 399 N.Y.S.2d 658, 369 N.E.2d 1191; Lyons v. De Vore, 48 A.D.2d 943, 944, 368 N.Y.S.2d 887, affd. 39 N.Y.2d 971, 387 N.Y.S.2d 108, 354 N.E.2d 848; Tenczar v. Milligan, 47 A.D.2d 773, 775, 365 N.Y.S.2d 272, lv. denied 36 N.Y.2d 645, 371 N.Y.S.2d 1027, 332 N.E.2d 362; Zaninovich v. American Airlines, 26 A.D.2d 155, 161, 271 N.Y.S.2d 866; Rohan, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 17B, EPTL 5-4.3, at 497-498). In the case of a decedent who was not a wage earner, "pecuniary injuries" may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance (see, De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717).

Applying these principles to the facts before us, we first conclude that plaintiffs' status as adult financially independent grandchildren does not, of itself, preclude their recovery.

While defendant asks us to restrict recovery for loss of guidance to a decedent's children, the statute defines the class entitled to recover in a wrongful death action as distributees (see, EPTL 5-4.1[1]; 5-4.4[a]. There is no question that decedent's grandchildren were her distributees, and thus that they are members of the class the Legislature intended should be permitted to maintain this action (EPTL 5-4.4[a]; 1-2.5, 4-1.1[a][6]; 1-2.10; see also, Liff v. Schildkrout, 49...