In the matter In re 91st Street Crane Collapse Litigation, New York’s Appellate Division, First Department, has reduced by a total of $60 million two separate jury awards related to a fatal crane failure which occurred in 2008. The case involved the crane collapse at a construction site at 33 East 91st Street in Manhattan. The accident left two men dead. Despite the significant reduction, the awards are still considered to be trailblazing, especially in the area of pre-impact terror damages.

The two matters were initially consolidated and presided over by Judge Manuel Mendez in the Supreme Court of New York, New York County. In January 2016, the jury awarded the family of Donald Leo Jr., who fell 200 feet to his death during the collapse, $39.5 million. The award included $7.5 million for pre-impact terror, $8 million for his conscious pain and suffering, and $24 million in punitive damages. The jury awarded the family of Ramadan Kurtaj, who was crushed on the ground by the crane, $55.5 million. This included $7.5 million for pre-impact terror, $24 million for conscious pain and suffering, and $24 million in punitive damages.

On September 12, the First Department categorized the awards as being “excessive” and reduced the awards to the families of Leo and Kurtaj to $16 million and $19 million, respectively. However, the court notably left in place still significant awards for “pre-terror damages” ($2.5 million and $2 million to Leo and Kurtaj, respectively).

The area of pre-impact terror is an evolving area of law as a recoverable component of conscious pain and suffering damages. (see e.g. Donofrio v. Montalbano, 240 A.D.2d 617 [2d Dep’t 1997]). “Damages for pre-impact terror are designed to compensate the decedent’s estate for the fear the decedent experienced during the interval between the moment the decedent appreciated the danger resulting in the decedent’s death and the moment the decedent sustained a physical injury as a result of the danger.” See NY PJI 2:320, Comment, Caveat 3; see also McKenna v. Reale, 137 A.D.3d 1533, 1535 (3d Dep’t 2016). There must be some evidence that the decedent perceived the likelihood of grave injury or death before the impact, and suffered emotional distress as a result. See Keenan v. Molloy, 137 A.D.3d 868 (2d Dep’t 2016). The First Department found several facts that both plaintiffs endured “inconceivable pre-impact terror.” Lang v. Bouju, 245 A.D.2d 1000, 1001 (3d Dep’t 1997). Leo was in the glass cab at the top of the crane when it collapsed. He fell with the crane for 200 feet and witnesses described looks of sheer panic and fear in his face. As for Kurtaj, a medical expert found defensive injuries to his forearm, leading to a conclusion that he was aware the crane was collapsing and tried to protect himself.

Thus, although the First Department found the amounts awarded by the Supreme Court jury for pre-impact terror “materially deviat[ed] from reasonable compensation,” the court still found that the record indicates that each plaintiff “endured a period of pre-impact terror.” Even with the reduction, this is the largest verdict for pre-terror damages at the New York state appellate level.

Despite the significant pre-terror damages precedent this matter sets, the case is also a strong indicator that pre-impact terror requires a legitimate evidentiary showing of fear on the part of the decedent. The First Department went through some length to highlight that there was clear evidence that both Leo and Kurtaj underwent terror during the crane collapse. As such, this case stands for the notion that a plaintiff cannot make a general claim to pre-impact terror. There must be an actual evidentiary showing prior to an award. Whether the court will permit circumstantial inference to support the claim remains to be seen.

It is also important to note that pre-impact terror damages are not just relevant in construction-related matters. Pre-impact terror can occur in a number of different matters, such as motor-vehicle accidents, product liability actions, or any matter where there is a sequence of time between the victim cognitively understanding (and fearing) the approaching impact and the impact itself.