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The Rogak Report: 02 Dec 2004 ** Wrongful Death - Pain And Suffering **

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  • Lawrence Rogak
    A FEW SECONDS OF PAIN AND SUFFERING BEFORE DEATH IS NOT ENOUGH TO SUPPORT A CAUSE OF ACTION Rosenblatt v. Dini, NYLJ 12/02/04, (Supreme Court, Queens County)
    Message 1 of 1 , Dec 2, 2004
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      A FEW SECONDS OF PAIN AND SUFFERING BEFORE DEATH IS NOT ENOUGH TO
      SUPPORT A CAUSE OF ACTION

      Rosenblatt v. Dini, NYLJ 12/02/04, (Supreme Court, Queens County)
      (Rosengarten, j)

      Shortly before noon on December 1, 2000, defendant Louis Dini was
      operating a car owned by defendant, Elrac, Inc., on Richmond Terrace
      in Staten Island when he encountered Zhang selling merchandise on the
      roadside. Dini stopped his car, rolled down the front passenger
      window, and asked the decedent if he had any CDs for sale. Zhang
      handed him some CDs through the open window on the passenger side of
      the car. During the course of the transaction, there was an
      altercation and Dini stepped on the gas while Zhang was leaning into
      the car through the side window with his upper torso inside the car.
      The car struck a utility pole, almost immediately, and turned over.
      Zhang was thrown to the ground and declared dead at the scene. Dini
      was arrested and indicted for manslaughter, second degree based upon
      a finding of reckless conduct. He pleaded guilty to criminally
      negligent homicide and was sentenced to six months imprisonment and
      five years probation.

      Defendant Elrac, Inc. and Dini moved for summary judgment dismissing
      the cause of action for conscious pain and suffering of the decedent,
      Pei Zhang. "All the evidence shows that Zhang was rendered
      unconscious by the impact and was probably dead when his body landed
      on the ground. Several witnesses... observed the decedent lying on
      the ground... [and] they all agreed, that he did not move, moan or
      cry out and that he appeared to be lifeless,"stated the Court.

      "In the absence of direct or circumstantial evidence, a claim for
      conscious pain and suffering must be dismissed,"held the Court. "Mere
      conjecture, surmise or speculation is not enough to sustain such a
      claim. There is also no evidence that Zhang was aware of the danger,
      as is required to support a finding of pre-impact terror." One of the
      eyewitnesses "saw Dini's car pass by with Zhang hanging out of the
      window and saw the car turn over, throwing Zhang to the ground. When
      deposed, this witness did not indicate that she heard the decedent
      cry out at anytime."

      Plaintiff relied upon the "conclusory assertion of a forensic
      expert... to the effect that Zhang experienced conscious pain and
      suffering from 11 to 13 seconds before the moment of impact. This is
      not sufficient to establish pre-impact terror and defeat summary
      judgment."

      Accordingly, plaintiff's cause of action for conscious pain and
      suffering were dismissed.

      Comment:

      Another issue in the decision was whether Elrac could be vicariously
      liable for Dini's reckless actions which caused Zhang's death.

      Elrac, the rental car company, claimed that Dini's conviction for
      criminally negligent homicide relieved it of all liability for Dini's
      actions, as they were intentional. The Court held that Dini's
      criminal conviction estops him from relitigating the issue of his
      negligence in this civil action. However, Dini asserted the
      affirmative defense that the culpable conduct of decedent Zhang
      contributed to Dini's motivation for committing criminally negligent
      homicide. He claimed that Zhang lunged at him and attempted to snatch
      a gold necklace he was wearing around his neck. In response, Dini
      said he stepped on the gas, expecting that Zhang would drop out of
      the car. Instead, Zhang grabbed at the steering wheel, causing the
      car to veer and strike a utility pole on the side of the roadway.

      The Court held that in order for the criminal conviction of defendant
      Dini to have estoppel effect on the issue of liability, it must be
      established that the identical issue in this action was necessarily
      decided in the criminal action since "estoppel extends only to
      questions distinctly put in issue and directly determined in the
      criminal prosecution." Self-defense and provocation are not
      available as defenses to criminally negligent homicide, since
      reckless conduct cannot be in self-defense. Therefore, Dini's
      criminal conviction did not determine the issue of whether the
      decedent's culpable conduct contributed to his death. Accordingly,
      summary judgment for the plaintiff on liability was granted with a
      trial to be held to determine the respective percentages of liability
      of defendant Dini and decedent Zhang.

      As for Elrac, "it failed to come forward with any evidence that Louis
      Dini acted with the intention to injure or kill Pei Zhang, as is
      required to sustain the affirmative defense that it bears no
      responsibility for Dini's conduct." Instead, Dini's testimony that he
      believed Zhang would drop out of the car when he stepped on the gas,
      combined with his indictment and conviction of "non-intentional
      crimes, demonstrates that defendant Dini did not intend to injure or
      kill Zhang. Therefore, defendant Elrac, Inc., is vicariously liable
      for the acts of defendant, Louis Dini, that caused the death of Pei
      Zhang."

      Larry Rogak
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