This claim for the wrongful death of an eight-year-old girl and for physical
injuries sustained by her eleven-year-old brother arises from a two-vehicle
accident that occurred on October 23, 1994. By interlocutory decision signed on
April 16, 2000, this Court found that the 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 (
, Geanes v State of New York
, Claim No. 93725, Unreported
Decision of O'Rourke, J. [filed 5/18/2000]). This decision pertains solely to
the question of damages.
Trial testimony established that on October 23, 1994, infant Randy Geanes, who
appears as a claimant here by his guardian James Geanes, was eleven years old
and was a passenger in a vehicle driven by Scott Johnson, his aunt's
fiancé. Randy was seated in the rear of the car directly behind the
front passenger seat and adjacent to the window, and his eight-year-old sister,
Sophia, was seated in between his legs. Three other children were seated to
Randy's left. A collision occurred, causing the death of Sophia and serious
physical injuries to Randy.
Claim for Damages for Personal Injuries Sustained by Randy
Randy Geanes, through his guardian James Geanes, seeks damages for multiple
fractures, pain and suffering and emotional distress that he suffered as a
result of the accident. Randy was born on August 30, 1983 (
, Exh. 13). On the date of his trial testimony, Randy was 17 years
old and had a life expectancy of 58.1 years. According to Randy, prior to this
accident, he led an active life, engaging in sports such as basketball and
swimming, and other recreation.
Since their mother passed away in 1993, Randy and Sophia had been living in
Poughkeepsie, New York with their aunt, Debra
and Debra's children. Derrick, the younger brother of Randy and Sophia, was
living with other relatives at the time. On the date of the accident, Randy was
attending the fourth grade and Sophia was attending first grade in a school in
Poughkeepsie. Trial testimony established that Sophia and Randy shared a close
relationship. Randy testified that he and Sophia "got along very well" and that
he liked being her older brother. He recalled that they played tag, hide and
seek and other sports together.
Randy does not have any memory about the accident, although he remembered
entering the car at home with the other occupants before the crash and the
seating arrangements in the vehicle. He testified that his first memory after
the accident is of waking up in the hospital. He recalled that he felt pain all
over his body and did not know what had happened. He testified that he felt the
greatest pain in his legs and also felt significant pain in his right shoulder
area. He also recalled that his right arm was in a sling and that pins had been
placed in both thighs for traction.
Randy testified that he remained in the hospital between three weeks to a month
and was unable to walk during that entire time. According to Randy, while in
the hospital, he had pain in his legs, ankles and arm, and complained to his
nurses about the pain. Nurses' notes document episodes during the period from
October 25, 1994 through November 9, 1994 when Randy cried and exhibited anxiety
and fear about upcoming medical procedures and about the loss of his loved ones
, Exh. 2).
Uncontroverted trial proof establishes that while hospitalized, Randy was
placed in a full body cast or spica cast which spanned from the center of his
chest to the bottom of both feet. The cast had openings to permit use of a
Upon his discharge from the hospital in November of 1994, Randy first resided
with his father and uncle, James Geanes, in Brooklyn. He then lived with a
family friend, Helen Dickerson, for a short period and then with Helen's
daughter, Lashonda Langs, in Waterbury, Connecticut until the summer of 1996,
when he moved to Virginia with his uncle, James Geanes. The testimony of Randy,
Lashonda Langs and James Geanes establishes that during the four-month period
that he wore the cast, Randy could not bend, was unable to walk, and had to be
carried and washed by his caregivers. Their testimony also establishes that he
suffered great indignity when going to the bathroom in the cast.
Trial proof establishes that although Randy was absent from school from October
1994 through May 1995 as a result of the accident, he did not have to repeat any
grades and was promoted (
, Exh. 5, Note dated 6/15/95). Randy's testimony that the removal of
the spica cast was painful because he had not moved his legs for four months was
corroborated by Lashonda Langs and James Geanes, who testified that they
accompanied Randy during that procedure and observed the boy wrenching in pain.
Randy also testified that after the cast was removed, his body was sore and he
was unable to move his legs. He testified that he used a wheelchair for
approximately one month after the cast was removed, then used crutches for a
period of time and later a cane during ambulation. He recalled that he attended
Waterbury Hospital for physical therapy, which was initially painful until his
legs got stronger. Medical Records admitted into evidence at trial indicate that
Randy's physical therapy commenced on March 28, 1995 and that he was discharged
from the program on June 29, 1995 with instructions to continue a home-exercise
, Exh. 6).
Trial testimony established that Randy spent the summer of 1995 in Virginia at
the home of his Uncle James and moved there permanently in the summer of 1996.
Randy recalled at trial that during his summer visit to Virginia and during the
1995-1996 school year he could not play sports. Randy's father, who was also
living in Virginia with James Geanes and Randy, died in July of 1996. At the
time of trial, Randy was still living in Virginia with his Uncle James Geanes,
who became Randy's legal guardian after Randy's father died
Randy received individual therapy for depression resulting from the deaths of
his mother and sister at the Child Guidance Clinic of Greater Waterbury
beginning on May 16, 1995 (
, Exh.7). Randy testified that he discussed his feelings of loss with
the therapists and indicated that he had dreams about the accident, which
continue to date.
With respect to his present physical condition, Randy testified that he now
"feels good" and that his legs bother him in certain weather conditions and if
he plays sports vigorously. Randy testified that he plays sports more
cautiously than in the past and will no longer play football because he fears
breaking his legs. Randy also testified that when he walks, he has a slight
limp. Randy is now in the eleventh
grade and hopes to enter the military after high school.
On cross-examination, Randy conceded that he rides a bicycle, attends gym class
in school and does not have any limitations imposed by doctors on his activity.
In response to Court questioning, Randy testified that he is not presently
visiting any doctors in connection with injuries sustained in the accident at
James Geanes, Randy's uncle and legal guardian, testified that he visited Randy
in the hospital while Randy was in traction, and recalled that he was initially
disoriented and in pain. Mr. Geanes confirmed that Randy lived with him for
approximately one month after Randy's release from the hospital and again in
Virginia in during the summer of 1995 and from July 1996 to the present.
Mr. Geanes testified that he is familiar with Randy's present physical
condition and agreed that Randy engages in sports, although he plays cautiously.
He also noted that he has observed a limp when Randy walks. He testified that
presently Randy does not complain much, but remains sensitive about the loss of
family members. He acknowledged that Randy does not visit any doctors for
complaints in connection with the injuries sustained in this accident.
Lashonda Langs, who cared for Randy at her home in Waterbury Connecticut from
January 1995 through July of 1996, confirmed that Randy was immobilized in a
spica cast during part of the time that she cared for him. According to Ms.
Langs, after the spica cast was removed Randy's body was covered in scales in
all previously-covered areas, and she placed him in a tub of warm water and
scraped off the dead skin. Ms. Langs testified that she took Randy to a
therapist in Waterbury because he was having bad dreams and would wake up during
the night crying. She testified that the bad dreams persisted for approximately
one year. According to Ms. Langs, the last time she saw Randy on a regular
basis was in 1996, and at that time he had a limp.
Dr. George L. Steiner, a Board-Certified orthopedic surgeon who is licensed to
practice in New York (
, Exh. 16) conducted a physical examination of Randy on August 9,
2000, and reviewed Randy's medical records from St. Francis Hospital,
Westchester Medical Center and Waterbury's Physical Therapy Department, as well
as x-rays and CAT scans of Randy's pelvis, femurs, ankles and chest and their
accompanying reports. Dr. Steiner's report was admitted into evidence as
Exhibit 15 and he opined at trial to a reasonable degree of medical certainty
that the October 23, 1994 accident was the proximate cause of the following
injuries that Randy sustained:
1. Ankle Injury:
Dr. Steiner identified a fracture of the growth plate in Randy's right ankle on
an x-ray taken at Westchester Medical Center (
, Exh. 4). He referred to the fracture as a "Salter II" fracture
based on a classification system developed by Dr. Salter (see
, Exh. 15,
p. 5), which he explained is a fracture through the metaphysis or long bone just
above the growth plate. He testified that a Salter II fracture is a painful
condition because it involves the periosteum, which is thick in children and
painful when disturbed.
Upon examination of Randy's ankle on August 9, 2000, Dr. Steiner found no
significant abnormality, and concluded that the ankle had healed properly. With
respect to a prognosis for Randy's ankle, Dr. Steiner explained that fractures
of the growth plate often result in a tilt in the ankle which can lead to
arthritic changes and pain. He explained that treatment for that condition can
include medication, braces and shoe wedges, and if those fail, ankle fusion
through surgery. According to Dr. Steiner, Randy's ankle fracture was the site
that was most likely to result in arthritic changes.
On cross-examination, however, Dr. Steiner conceded that he had no objective
evidence to indicate that Randy's ankle had healed with a tilt because he had no
recent x-ray films of the ankle to study. He could not say to a reasonable
degree of medical certainty that Randy would suffer such a tilt and concomitant
arthritic consequences. He also agreed that no arthritic changes were evident
in Randy's ankle joint on the date of his examination of Randy. He could only
say that a certain percentage of people with an ankle injury such as that
sustained by Randy will develop arthritis; he could not determine if Randy would
fall within that percentage.
Dr. Steiner next identified a fracture of the anterior column of Randy's pelvis
on a CAT scan from Westchester Medical Center dated October 24, 1994 (
, Exh. 4). He explained that such a fracture is ordinarily painful
because nerves that run along the outer sheath of the bone get torn and are
stimulated. According to Dr. Steiner, a fracture of the pelvis is typically
treated with immobilization, rather than surgery, in children.
Dr. Steiner also identified fractures in both of Randy's femurs from various
x-rays. He testified that the fracture in the right femur was located in the
upper part of the femur and was angular and that the fracture in the left femur
was lower. Referring to an x-ray dated November 9, 1994, Dr. Steiner testified
that the femur bones were not aligned and identified holes in the femur bones
where traction pins had been removed.
Referring to his August 9, 2000 physical examination of Randy, Dr. Steiner
testified that he found that the left side of Randy's pelvis was approximately
one inch higher than the right, based on a visual inspection of Randy in a
standing position with his knees locked. Dr. Steiner testified that he found a
1.5cm differential in his measurement of the two femur bones, which he believed
was responsible for the tilted pelvis. While Dr. Steiner found that the range of
motion of Randy's hip joints were generally good, he found limitations of
flexion and extension in the right hip in comparison with the left. It was Dr.
Steiner's medical opinion that the flexion deficit was not due to the pelvic
bone fracture but rather was due to femur fracture because corrective growth in
the femur had not compensated for the bone loss accompanying the fracture. Dr.
Steiner opined to a reasonable degree of medical certainty that the limitation
of motion in the hip that he observed in August of 2000 will be permanent
because Randy was 17 at the time and will likely have only little more growth.
He further opined that the consequence of that permanency is that Randy might
require a shoe lift to equalize the legs. He testified, however, that despite
the discrepancy in leg lengths, Randy would be functional and it should not
cause Randy pain. Without recent x-rays of the femurs, the doctor could not say
with a reasonable probability that Randy would develop future arthritic problems
or hip or back pain.
Dr. Steiner opined that Randy could overcome any weakness he may experience as
a result of the multiple fractures with exercise. On cross-examination, Dr.
Steiner reiterated that the only permanent injuries Randy sustained were a leg
length discrepancy of 1.5 cm and accompanying hip tilt, as well as deficits in
flexion and extension in the right hip. Dr. Steiner explained that the flexion
and extension deficits would cause Randy to experience some limitations in his
ability to play sports and run. Dr. Steiner testified that although he did not
find that Randy walked with a limp, he did not perform a gait analysis and
explained that the leg shortening could be compensated for by the hip tilt. He
also agreed that if family members noticed a limp after Randy engaged in sports
it would be a result of this accident. Dr. Steiner further testified that he
did not think that Randy would be disqualified from military service based on
4. Clavicle Fracture:
According to Dr. Steiner, a chest x-ray dated October 23, 1994 from Westchester
Medical Center revealed a fracture of the right collar bone. Dr. Steiner
testified that when he examined Randy on August 9, 2000, he found that Randy
exhibited normal range of motion in the shoulders and had no tenderness at the
clavicle, which indicated to the doctor that the fracture had properly healed.
The Court finds from the foregoing proof that Randy sustained fractures of the
clavicle, right ankle, pelvis and both femurs in the October 23, 1994 accident.
Randy's past pain and suffering and the limitation of his enjoyment of life
during the period immediately after the accident, during the four-month period
that he wore the spica cast, during physical therapy and thereafter when he was
required to walk with crutches and later a cane is well-documented on this
record. The Court thus awards claimant Randy Geanes $300,000 in past pain and
suffering. The Court further finds that Randy has sustained permanent injury in
the form of a leg length discrepancy of 1.5 cm, a hip tilt, and reduced flexion
and extension in the hip area which will have some impact on his future ability
to engage in sports. Thus, the Court awards claimant Randy Geanes $50,000 in
Wrongful Death Claim:
Claimant James Geanes, as Administrator of the estate of Sophia Geanes (
, Exh. 14), seeks damages stemming from the child's wrongful death.
Sophia Geanes, who was born on November 13, 1986, was one month shy of her
eighth birthday at the time of her death and at that time had a life expectancy
of 71.5 years (see
, Pattern Jury Instructions, Table A, Life Expectancy
Tables). Under Estates, Powers and Trusts Law (EPTL) § 5-4.3(a), damages
for wrongful death are limited to "fair and just compensation for the
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.
, 51 NY2d 242). Thus, neither the grief suffered by survivors nor the
loss of the decedent's companionship are compensable (see
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
, 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 fact that the decedent is "a child of tender years"and the
concomitant "absence of dollars and cents proof of pecuniary loss does not
relegate the distributees to recovery of nominal damages only" (Parilis v
, 49 NY2d 984, 985, supra
The record here establishes that at the time of her death decedent Sophia
Geanes was approximately eight years old, attended the first grade, and actively
engaged in sports and recreation with her eleven-year-old brother, Randy, with
whom she shared a very close bond. While the proof of Sophia's aptitude and
accomplishments is sparse, the record lacks any indication that she was limited
in ability or potential in any way. With respect to her distributees, the proof
elicited at trial also establishes that in addition to Randy, Sophia had a
second brother, Derrick, who was approximately three at the time of the accident
, Exhs. 2, 7). The record further reveals that, due to the death of
their parents, Derrick and Randy are Sophia's sole
The fact that Sophia would not have had a duty to support her two brothers
during her lifetime does not preclude the Court from finding a pecuniary loss to
the boys. Indeed, the Courts have repeatedly awarded damages to parents and
siblings as a result of the death of a minor child where the decedent had no
legal duty to support the survivors (
, Donofrio v Montalbano
, 240 AD2d 617; Cassar v
Central Hudson Gas & Elec. Corp.
, 134 AD2d 672).
Here, the Court finds that the children shared a close bond, which was rendered
more significant because they were orphaned, and thus it is more probable than
not that Sophia would have voluntarily contributed money and gifts to her
brothers over the course of her expected lifetime. Based on the foregoing proof,
the Court finds that an award of $100,000 will fairly and justly compensate
Sophia's two distributees for the pecuniary loss associated with her wrongful
, Meredith v City of New York
, 220 AD2d 563, Cassar v
Central Hudson Gas & Elec. Corp.
, 134 AD2d 672, supra
Court also awards the estate $3,300 to cover funeral and burial expenses
, Exh.10). However, the Court declines to award damages for Sophia's
pain and suffering since the record is devoid of proof that Sophia was conscious
or experiencing pain during the time period between the collision and the
pronouncement of her death within one half hour of the accident (Exh. 12).
As a final matter, the Court declines to award Randy Geanes damages for
psychological injuries stemming from the accident. The Court finds from the
trial proof that Randy's emotional disturbance and need for therapy did not stem
from the physical injuries that he sustained in the accident, but rather from
grief over the loss of family members, including his sister Sophia, which is a
non-compensable loss in a wrongful death action (
, EPTL 5-4.3).
Accordingly, the Court awards claimant Randy Geanes $350,000, with appropriate
interest from the date of the liability decision, for personal injuries and
awards the estate of Sophia Geanes $103,300, with appropriate interest from the
date of death. All trial motions not heretofore decided are deemed
LET JUDGMENT BE ENTERED ACCORDINGLY.