ACCIDENT-VICTIM PEDESTRIAN KILLED BY CAR NEVER REGAINED CONSCIOUSNESS SO CAN'T SUE FOR "CONSCIOUS PAIN AND SUFFERING"
Supreme Court, Appellate Division, Second Department, New York.
Case: Ul Haque v. Daddazio
Date: May 10, 2011.
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; accident injury Brooklyn lawyer)
Comment: When an accident victim dies as a result of his or her accident, there are potentially two legal claims that can be brought. First is "conscious pain and suffering," which belongs to the Estate. Second is "wrongful death," which is for the benefit of the deceased accident victim's heirs.
The plaintiff's decedent died in an accident when she tried to cross a highway in upstate New York on foot. She was hit by defendant's car; there was neither a crosswalk or intersection where she crossed.
A summary judgment motion was made, to try to throw out the accident victim's lawsuit on paper.
The lower court granted summary judgment and threw out plaintiff's entire complaint. In response to a later motion by plaintiff, the court then reconsidered its position, and reinstated the accident victim's cause of action seeking to recover damages for conscious pain and suffering.
The appeals court stated the rule as follows:
"[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering"
The appeals court then pointed out that, in support of that branch of her motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering, the defendant submitted the decedent's medical records which showed that the decedent was rendered unconscious immediately following the accident and remained so until her death eight hours later.
In response to defendant's showing that the deceased accident victim was never conscious after the accident, "the plaintiff failed to raise a triable issue of fact." The plaintiff never showed that the deceased pedestrian "experienced any level of cognitive awareness following the accident."
The appeals court found: The Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue his opposition to that branch of the defendant's prior motion which was for summary judgment dismissing the cause of action to recover damages for conscious pain and suffering.
Thus, the plaintiff offered no new evidence to warrant the lower court even reconsidering its prior decision to throw out the accident victim's entire case.
Holding: "A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented."
Case dismissed.
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