Greedy Trial Lawyer
Severe Emotional Distress - $5 Million For Each Child Of Mother Killed In Crash
Category: Seeing Clearly Now
So-called non-economic damages are often the target for those who wish to put a cap on damages. The argument is made that economic losses deserve full compensation, but the emotional impact of an injury or death is not as real or worthy of full compensation. If you want to know what severe emotional distress looks like when a mother is killed in a bloody automobile crash read these excerpts from a recent NJ appellate court decision in the case of BORYSZEWSKI v. BURKE, A-2071-02T2 (N.J.Super. 9-27-2005). The court concludes each of these children deserved the full verdict of $5 Million determined by the jury.
The accident occurred at about 5:50 p.m. on August 5, 1998. Annette Boryszewski was driving her family’s 1998 Plymouth Grand Voyager, a minivan, on Route 280 westbound in East Orange. Her three sons — Matthew, age fourteen; Brian, age eleven; and Timothy, age seven — were riding in the Voyager with her. Brian was in the front passenger seat, Matthew was seated in the second row behind the front passenger’s seat, and Timothy was seated in the second row behind the driver.
At the same time, defendant Cody Burke was driving his Jeep Wrangler in the far left lane of Route 280 eastbound. The left front tire came off Burke’s vehicle, bounced over the median divider, hit a vehicle on the westbound side of the highway, bounced again several times, and then crashed into the windshield and windshield header of the Boryszewski vehicle. The tire shattered the windshield and crushed the roof downward, fracturing Annette’s skull and killing her....
Our review of the record in the light of the arguments advanced by the parties and prevailing principles of law discloses a compelling picture of the severe suffering required by law to support the boys’ emotional distress claims. The proofs provided a reasonable basis for validating the first jury’s verdicts in those regards.
All three boys had vivid recollections of the accident — their terror in seeing and hearing the tire hit the minivan and shatter the windshield, experiencing the minivan careening out of control before it stopped at the highway divider, hearing their mother scream, and seeing their mother collapsed and covered in blood and glass.
Matthew, at age fourteen the oldest of the three boys, did his best to safeguard his family. He was engaged and pro-active. He shut the minivan’s ignition off even as the vehicle was moving, he removed his brothers from the vehicle, he stopped passing motorists to borrow cell phones to call for help, and he asked for assistance in removing seats from the minivan in order to make it easier for the ambulance crew to remove his mother. He also attempted to minister to his mother, but he could not find a pulse, she was bleeding profusely, and she was not breathing.
Annette’s injuries, which all three boys observed, were gruesome, and the interior of the minivan was blood-soaked. At the second trial, State Trooper Robert Babitz described his observations of Annette’s condition at the accident scene. He stated that Annette was non-responsive to voice stimulus, and had no pulse. He observed “severe trauma” to Annette’s head, as well as blood and “brain matter” all over the seat and in the area of the dashboard. (Tr. 9/5/02 p. 53)
At the hospital after the accident, the boys’ father, Witold, informed them of their mother’s death. The children screamed and cried, and Witold did his best to comfort them.
Witold sought psychological treatment for all three sons to help them deal with the trauma of the accident and the pain of losing their mother. At first, Brian and Timothy attended sessions at a church-run hospice program in Jersey City, while Matthew participated in a counseling program offered through his school. Thereafter, the boys pursued counseling with separate psychologists in Livingston, ultimately all choosing to seek treatment exclusively with Dr. Jeffrey Greenberg. At the time of both the first and second trials, all three boys continued to see Greenberg.
Each of the three boys suffered emotionally as a result of the accident. For example, each boy expressed fears relating to driving. Timothy, in particular, afterwards, always wanted to sit in the back seat of the family vehicle, and he became hyper-vigilant about his father and brothers wearing their seatbelts. Matthew also was particularly affected by fears of driving because he was close to driving age at the time of the accident. He feared driving near trucks, he tried to avoid main roads, and, while on the highway, he tried always to drive in the left lane, away from traffic.
The boys also suffered from nightmares, and, in the immediate aftermath of the accident, sought comfort by sleeping with their father. Timothy, who was just seven years old at the time of the accident, was visibly despondent and frightened. He would wake up screaming and crying at night, describing nightmares of the accident and of his mother behind the wheel covered in blood. He also cried often and sought unusual physical closeness to his father, asking Witold not to leave him at home, and questioning where Witold was going and when he would be back.
Matthew was the first to stop sleeping with his father. Soon thereafter, Brian returned to his own bed as well. Timothy, however, continued to sleep with his father for several years after the accident. Moreover, at the time of both trials, the boys continued to suffer from nightmares and flashbacks, albeit with diminishing frequency.
Overall, the record would support a conclusion that the two older boys, Matthew and Brian, were not less distressed, but were rather more stoic in their grief than the youngest brother, Timothy. Matthew and Brian were reluctant to show their emotions, and they attempted to deal with their losses without assistance from others. Consistent with their stoicism, Matthew and Brian had fewer sessions with Greenberg than did Timothy, and they were less open with Greenberg than Timothy was.
From all appearances, Matthew attempted to deal with his sorrow by remaining busy. Before the accident, he had been involved with extracurricular activities. He became even more involved after the accident. He joined every program that time allowed — scouts, volunteering at church, drama and music programs at school, and student government. Matthew also maintained his good academic performance.
After the accident, Brian became withdrawn, quiet, and more serious then he had been before. Initially, he had stopped participating in some of his favored extracurricular activities; however, he quickly rebounded and began participating in extracurricular activities again, particularly after the family moved. Moreover, like Matthew, Brian maintained his good academic performance.
Dr. Greenberg opined that, at the date of both trials, each of the three boys continued to suffer from a low-grade depression and post-traumatic stress disorder (PTSD) resulting from the experience of the accident and from witnessing his mother’s death. Greenberg stated that his diagnosis of delayed-onset PTSD did not occur until August 2001 because the boys only began reporting flashbacks around that time, as they experienced the stresses of moving and the upcoming trial.
Greenberg also opined that the diagnoses of depression and PTSD placed each boy at greater risk of engaging in self-destructive behavior as he grew older, as a means by which to dull his pain. Greenberg stated that the possibility of self-destructive behavior was a particular concern for Matthew, given his avoidance of his emotions. In this regard, at the second trial, Greenberg opined that Matthew appeared, already, to be exhibiting signs of relationship/attachment difficulties. In particular, Greenberg found it unusual that, at the age of eighteen, Matthew was not developing romantic relationships with girls, or even close relationships with male friends.
Of the three boys, however, Greenberg was most concerned for Brian’s mental and emotional well-being. Greenberg stated that Brian was a quiet and withdrawn child who held all of his feelings inside. He also stated there was a sadness and a sense of lethargy that was evident from Brian’s appearance; however, Brian was very reluctant to reveal his emotions.
Timothy, on the other hand, was the most emotional of the three boys, and he was the most expressive regarding his suffering. At the first trial, Greenberg described how, during his initial sessions, Timothy would cry to the point that his whole body would shake; he would describe his nightmares, and talk about how sad he was and how much he missed his mother. At both trials, however, Greenberg noted that Timothy’s depression symptoms had abated over time.
Like his brother Brian, in the immediate aftermath of the accident Timothy stopped participating in extracurricular activities he had previously enjoyed. Eventually, however, Timothy resumed such activities, particularly after the family moved. Moreover, like both of his brothers, Timothy maintained his good academic performance notwithstanding the accident.
In terms of more permanent changes, prior to the accident, Timothy was an outgoing, outspoken child. After the accident, he became more withdrawn and lonely. Witold also found it unusual that, since the accident, Timothy tended to make friends with single-parent children. Timothy told Witold that he related better to these children, and he found it easier to talk to them.
Viewing the proofs in the light most supportive of the first jury’s verdict, the evidence reflected that Matthew and Brian were simply more stoic in their suffering than was Timothy. The evidence clearly showed that for some period of time after the accident, all three boys suffered intense grief; they were devastated by the loss of their mother and haunted by scenes of the accident and their mother’s injuries. This rings true. By all accounts, each boy had a very close relationship with his mother. Moreover, the accident scene was bloody, gory, and so horrible as to be unquestionably traumatic for all those present. The boys witnessed their mother’s skull crushed, with large amounts of blood and brain matter splattered around the interior of the vehicle in which they were traveling.
Even though each boy suffered differently, all suffered profoundly, sufficient to satisfy the legal standard for “severe emotional distress.” See Buckley v. Trenton Sav. Fund. Soc’y, 111 N.J. 355, 366-67 (1988) (establishing the “severe emotional distress” standard for claims of intentional infliction of emotional distress); Portee v. Jaffee, 84 N.J. 88, 101 (1980) (establishing “severe emotional distress” standard for indirect injury/bystander claims) (applied in Dunphy v. Gregor, 136 N.J. 99 (1994)); Lascurain, supra, 349 N.J. Super. at 282 (direct injury claims require same level of severe emotional distress regardless of whether infliction of emotional distress was negligent or intentional).
The legal definition of “severe emotional distress” has been expressed in many different ways. For example, in the context of Portee claims of indirect injury advanced by bystanders, the Supreme Court has stated that “severe emotional distress” is distress that is “so severe that it resulted in physical manifestations or . . . destroyed [the plaintiff’s] basic emotional security,” Carey, supra, 132 N.J. at 62, or, alternatively, emotional distress that affects the plaintiff’s “mental and emotional stability,” Portee, supra, 84 N.J. at 100-01. See generally Howard H. Kestin, The Bystander’s Cause of Action for Emotional Injury: Reflections on the Relational Eligibility Standard, 26 Seton Hall L. Rev. 512 (1996).
In the context of direct claims for intentional infliction of emotional distress, the Court has stated that the distress must be “‘so severe that no reasonable man could be expected to endure it.’” Buckley, supra, 111 N.J. at 366-67 (quoting Restatement (Second) of Torts, § 46 comment j (1965)). Alternatively, the Court has stated that “[s]evere emotional distress means any type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so, including . . . post-traumatic stress disorder.” Taylor v. Metzger, 152 N.J. 490, 515 (1998) (quoting Poole v. Copland, Inc., 481 S.E.2d 88, 93 (N.C. Ct.
App. 1997), rev’d in part, 498 S.E.2d 602 (N.C. 1998)).
Recently, describing the standard for negligent or intentional infliction of emotional distress, we stated in dictum that the distress must be “severe and substantial . . . not merely transitory but rather [having] a discernible effect on the plaintiff’s ability to function normally, either physically or psychologically, on a daily basis.” Tarr v. Bob Ciasulli’s Mack Auto Mall, Inc., 360 N.J. Super. 265, 271 (App. Div.), aff’d in part, rev’d in part, 181 N.J. 70 (2004). It is not necessary that the plaintiff suffer physical manifestations of the emotional distress, although “accompanying physical manifestations are relevant both in proving that the emotional distress was severe and substantial and in assessing the quantum of damages.” Id. at 271, n. 1.
Matthew, Brian, and Timothy sought two types of emotional distress damages. First, they sought damages for the “direct” emotional distress they suffered as a result of being in the accident. Second, they sought damages for the “indirect” or “bystander” emotional distress they suffered as a result of witnessing their mother’s death. See, e.g., Carey, supra, 132 N.J. at 55-62 (discussing distinction between direct and indirect emotional distress); Lascurain v. City of Newark, 349 N.J. Super. 251, 277-78 (App. Div. 2002) (same). As to both types of emotional distress damages — direct and indirect — the legal standard is the same. To recover, the boys were required to establish that they suffered “severe emotional distress.” The record in this matter fully supports the conclusion that they did.
Notwithstanding that the quality and extent of each boy’s suffering was unique and individualized, each was traumatized in two separate ways, suffering two distinct severe emotional distress injuries. The jury was clearly instructed about the separate components of the emotional distress damages it might find, but the interrogatories it was called upon to answer did not ask for separate verdicts as to each child regarding the monetary value of each of the two types of severe emotional distress he had suffered, i.e., on the one hand, from the trauma of being a direct victim of defendants’ breaches of duty as a participant in the accident; and, on the other hand, from the independent trauma of witnessing his mother’s gruesome death. We cannot divine from the record how the jury may have assessed these separate injuries in responding affirmatively to the interrogatory regarding each boy’s emotional distress damages, which asked whether he had “suffer[ed] severe emotional distress as a result of being in this accident and witnessing his mother’s death.” (Emphasis supplied).
The jury was required to make a complex evaluation and assessment as to each of the boys. Each child’s journey from the unquestionably horrible double trauma of the common event to emotional health was unique and ongoing. Because we cannot know from the record how the jury may have assessed the particularized values of each child’s exposure to the two events calling for compensation, or the individualized effects of the two traumas upon them, or the special ways each dealt with the event and the process of recovery, we cannot reach a principled conclusion that the equivalence of the jury’s total award of damages to each child was anything more than a coincidence. It may well be that the separate evaluations and assessments to which the parties were entitled in respect of each child, individually, resulted in the same bottom-line figure for each notwithstanding that the weight of the discrete pertinent factors comprising each verdict might have been very different. On the face of the record, we can discern nothing excessive in a five million dollar verdict for any of the boys as recompense for the horrors of the day, the recovery process from the emotional injuries he experienced, and such lasting effects as the jury may have found were visited upon him. We cannot assume, therefore, that a five million dollar verdict for each of the boys was untoward, and can only conclude the first trial judge exceeded his discretion in so ruling. We have determined, accordingly, that the first trial judge erred in setting aside the damage awards for severe emotional distress, and that those verdicts must be reinstated and judgment entered upon them.
Having reached the foregoing conclusion that the first jury’s verdicts on damages for severe emotional distress must be restored, the remaining arguments advanced by plaintiffs regarding errors on the part of the second trial judge in retrying those damage issues are rendered moot
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