New York State Court of Claims

New York State Court of Claims

ROYAL v. THE STATE OF NEW YORK, #2001-017-003, Claim No. 94071


This decision addresses the amount of damages awarded for the wrongful death of decedent Debra Royal, who was primary caretaker for her two sons, aged 12 and 9 at the time of the accident, and for physical and emotional injuries sustained by the two boys.

Case Information

ANTHONY L. ROYAL, as Administrator of the Estate of DEBRA ROYAL, Deceased, MAURICE A. ROYAL and MICHAEL A. ROYAL, infants under the age of 14 years, by ANTHONY L. ROYAL, their father and natural guardian
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Panken, Besterman, Winer, Becker & Sherman, LLPBy: Kenneth B. Becker, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
New City

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for wrongful death and personal injuries which was filed on May 22, 1996 arises from a two-vehicle accident that occurred on October 23, 1994 and resulted in the death of decedent Debra Royal and injury to her two infant sons, Maurice A. and Michael A. Royal. By interlocutory decision signed on May 31, 2000, this Court found that this accident was caused solely by the negligence of the State of New York in its maintenance of a portion of Route 9 in Poughkeepsie, New York (
see, Royal v State of New York, Claim No. 94071, Liability Decision of O'Rourke, J. [filed 6-9-00]). Anthony Royal, as administrator of the Estate of Debra Royal (see, Exh. 9) and guardian of the two boys (see, Exh. 10), now seeks damages for the wrongful death of Ms. Royal and for the boys' injuries, and this decision pertains solely to the question of damages.
Under Estates, Powers and Trusts Law (EPTL) § 5-4.3(a), damages for wrongful death are limited to "fair and just compensation for the
pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (emphasis supplied). The Courts of this State have strictly adhered to the statutory restriction that recovery be limited to pecuniary or economic losses (see, Carrick v Central Gen. Hosp., 51 NY2d 242). Thus, neither the grief suffered by survivors nor the loss of the decedent's companionship are compensable (see, Turano Practice Commentaries, McKinney's Consol Laws of NY, Book 17B, EPTL §5-4.3, p. 439; PJI 2:320). In fashioning a wrongful death award in accordance with the statute, the Court may consider evidence of the "reasonable expectancy"of financial support, gifts, and inheritance that would have inured to those on whose behalf the claim was filed had the decedent lived (Loetsch v New York City Omnibus Corp., 291 NY 308; see also, Parilis v Feinstein, 49 NY2d 984; Regan v Long Island Rail Road Co., 128 AD2d 511, 513). Factors traditionally considered by the courts include "the age, health and life expectancy of the decedent at the time of the injury; the decedent's future earning capacity and potential for career advancement; and the number, age and health of the decedent's distributees" (Johnson v Manhattan & Bronx Tr. Operating Auth., 71 NY2d 198, 203-204). The value of the decedent's past and future lost earnings may be measured by his or her gross income at the time of death (id.). Reasonable funeral expenses may also be recovered in the suit (see, EPTL §5-4.3[a]).
Where, as here, the claim is filed on behalf of the decedent's children, pecuniary injuries may also include the loss of parental nurture and care and the loss of physical, moral and intellectual training that could have been expected from the parent, had he or she been alive (
Kenavan v City of New York, 120 AD2d 24, aff'd 70 NY2d 558; Plotkin v New York City Health & Hosps. Corp., 221 AD2d 425). In the State of New York, a parent has a legal duty to support his or her children until the child reaches the age of 21 (see, Social Services Law §101[1]).
The proof elicited at trial establishes that decedent Debra Royal was born on October 24, 1962 (
see, Exh. 8) and at the time of her death had a life expectancy of 48.1 years (see Pattern Jury Instructions, Appendix A, Table 6-3, p. 1359). The testimony of Ms. Royal's fiancee, Scott Johnson, revealed that Ms. Royal was divorced from the father of her two sons Maurice and Michael and that she was the primary caregiver with respect to those children at the time of her death. The record depicts Ms. Royal as an active, healthy, devoted mother who created a nurturing and structured home environment for her sons, provided them with shelter, food, clothing, gifts and recreation and performed all of the household services that would normally be expected of the guardian of infant children. Mr. Johnson estimated that the decedent spent between $100 and $200 per week on food for the household. Trial testimony also establishes that Ms. Royal attended church with her children, steadfastly assisted them with their homework and disciplined them as needed. The Court thus finds from the foregoing that Maurice and Michael have suffered the loss of their mother's nurture and care and her established course of intellectual, moral and physical guidance, which undoubtedly would have continued until the boys respectively reached the age of majority. The Court finds that the value of such loss is $450,000 for Maurice, who was twelve at the time of Ms. Royal's death, and $600,000 for Michael, who was nine (see, Garcia v New York City Health and Hosps. Corp., 230 AD2d 766 [award for loss of parental guidance for son reduced from $1,200,000 to $800,000 and award to daughter reduced from $1,500,000 to $850,000]; see also, Klos v New York City Transit Auth., 240 AD2d 635 [award of $1,000,000 for loss of parental guidance per child reduced to $250,000 per child]). Based on the trial testimony of the two boys which establishes that they were emotionally devastated in the midst of their critical formative years by the loss of their mother, who was actively involved in the boys' education and moral development at the time of her death, the Court apportions two-thirds of those respective sums as past damages and attributes the remaining third to future damages.
With respect to the decedent's earning potential, Ms. Royal's employment records indicate that she received a GED diploma and had an interest in attending college (
see, Exh. 4). Brian Cardinal, who is employed at the Taconic Developmental Disabilities Services Office as the Director of Human Resources Services, reviewed the decedent's employment records (see, Exh. 4), and testified that after completing a competitive civil service exam, Ms. Royal was hired by Wassaic Developmental Center on September 29, 1994 -- approximately one month prior to her death -- as a Developmental Aide Trainee. Mr. Cardinal explained that the starting salary for the Grade-7 position was $18,902 per year, and that after successful completion of a one-year probationary term Ms. Royal could have advanced to a Grade 9 in the Civil Service grading system with a concomitant increase in salary. According to Mr. Cardinal, Ms. Royal also received fringe benefits, including health insurance, retirement benefits, sick leave, vacation pay and personal leave. He noted that she contributed approximately $60 per month for family health insurance coverage in 1994, which constituted 10% of the cost of that benefit to her employer.
The Court finds from the proof depicting a close relationship between the mother and boys and from the support that Ms. Royal historically provided to them that the two minors had a reasonable expectation of financial assistance and support from the decedent that would have continued until their respective twenty-first birthdays. Unfortunately, claimants have failed to present the Court with any proof to establish how much of Ms. Royal's annual earnings and fringe benefits would have been allocated to her personal consumption and how much would have been available to benefit her two children. The record is similarly devoid of any estimate of the decedent's work-life expectancy and claimants have made the Court's task in fixing damages in this regard unnecessarily difficult.

However, the Court finds that an injustice would be served if these children were denied recovery for the lost support that the decedent undoubtedly would have provided them until they respectively reached the age of majority. Thus, based on common experience, and relying for guidance on the Child Support Standards Act (
see, Domestic Relations Law §240[1-b]), which fixes the support requirement for two minor children at 25% of the parent's annual income (Domestic Relations Law §240[1-b][3][ii]), the Court finds that the children here have suffered the past loss of 25% of the decedent's income of approximately $19,000, or $4,750 per year, for the approximately six years between the decedent's death on October 23, 1994 and the date of this damages trial on September 29, 2000, which amounts to $28,116. The Court further finds that the boys have suffered the future loss of $4,750 per year from the date of this trial on September 29, 2000 until July 15, 2003 when the older son, Maurice, reaches the age of 21 for a total of $13,266. The Court finds that after the date that decedent would no longer have been legally obligated to support Maurice, Michael could reasonably have expected to benefit from approximately 17% of his mother's annual income (see, Domestic Relations Law § 240[1-b][3][i]) for his support. Thus, the Court finds that Michael is entitled to $3,230 per year from July 15, 2003 until October 15, 2006, when he reaches the age of majority, for a total of $10,530. Since the record fails to provide the Court with a sufficient basis upon which to fix future damages beyond those dates with respect to lost financial support or inheritance, no such awards have been made.
As a final matter in the wrongful death action, the uncontroverted proof at trial establishes that the funeral expense was $2,970 (Exh. 5). The parties agreed at trial that the bill for burial expense of $2,140 (Exh. 6) included the burial of Sophia Geanes, who was also killed in the accident, and thus that half of the burial bill or $1,070 is attributable to Ms. Royal. The Court finds that the aforementioned expenses which total $3,210 were reasonably incurred by the estate and that those sums are awardable as damages.

Claimants Maurice and Michael Royal, by their father as guardian, have each filed claims for damages stemming from the personal injuries they suffered in the accident at issue. Maurice testified at trial that he saw a car heading towards theirs and braced himself for the accident. He testified that he lost consciousness and had a stomach ache after the accident and was taken to Vassar Brothers Hospital. Medical Records of his hospital visit (Exh. 2) indicate that he was diagnosed with a mild muscular strain after the motor vehicle accident and that he had "no treatable injuries" (Exh. 2, p. 2). The Court awards Maurice $500 for the muscular strain.

Michael Royal testified at trial that he sustained a sprained ankle and received stitches for a chin laceration at Vassar Brothers Hospital after the accident. Medical records concerning Michael's treatment were admitted into evidence as Exhibit 2A and reveal that Michael complained of pain in his lower right leg and chin. While the diagnosis of ankle "sprain" is not substantiated by the medical records, the record documents leg pain and chin injury, and the Court finds that Michael is entitled to an award of $1,000 for the physical injuries he sustained in the accident.

Although both Maurice and Michael seek damages for emotional injuries following the accident, their trial testimony indicates that their emotional problems stemmed from the grief they experienced as a result of the loss of their mother, which is a non-recoverable non-pecuniary loss under the wrongful death statute (
see, EPTL 5-4.3). The Court further notes that to the extent that the boys were anguished because of the loss of their mother's care, such damages have been accounted for in the Court's award for loss of parental nurture and guidance. In any event, claimants have not established by expert proof, or otherwise, that the emotional injuries sustained by the boys stemmed from witnessing the fatal injuries to their mother (cf., Bovsun v Sanperi, 61 NY2d 219).
Accordingly, claimants are entitled to a total award of $1,105,952 for damages for wrongful death, with the following breakdown:

PAST DAMAGES: (Wrongful Death)
Loss of nurture (Maurice) $300,000
Loss of nurture (Michael) 400,000

Loss of support (Michael & Maurice) 28,116
Funeral expenses 2,970
Burial expenses

TOTAL: $732,156

FUTURE DAMAGES: (Wrongful Death)
Loss of nurture (Maurice) $150,000
Loss of nurture (Michael) 200,000

Loss of support (Michael & Maurice) 13,266

Loss of support (Michael)
TOTAL: $373,796

With respect to the claims for personal injuries sustained by the boys, Maurice is awarded $500 and Michael is awarded $1,000, with interest from the date of this Court's decision on liability -- May 31, 2000.

The Chief Clerk is directed to stay the entry of judgment in accordance with this decision until a hearing is held pursuant to CPLR Article 50-B. The parties are directed to contact the Court to schedule said hearing. All trial motions not heretofore decided are deemed denied.

February 14, 2001
New City, New York

Judge of the Court of Claims