The opinion of the court was delivered by: STEWART
At the completion of the trial in this action on January 21, 1986, we indicated to counsel that a date for closing arguments to the court would be set for sometime in the near future. However, after reviewing the record, we concluded that closing arguments would not be useful and issued our decision, dated March 18, 1986. We overlooked the fact that plaintiffs' counsel had not submitted any post-trial brief, although defense counsel had done so.
Plaintiffs have now filed a motion "for revision of the Court's memorandum decision and order and for a new trial on certain of the issues." Thereafter, we heard oral argument on the motion, which gave plaintiffs' counsel the opportunity (which he quite properly took advantage of) to in effect deliver his closing argument. Taking into account this argument and the briefs submitted by the parties on the motion, we supplement our prior decision as follows.
Plaintiffs' principal contention is that damages should have been awarded for loss of the normal pursuits and pleasures of life, which they contend is an item of damages separate and distinct from pain and suffering. Plaintiffs also contend that the damages awarded in our decision were inadequate.
Plaintiffs' complaint sets forth two causes of action--one for Neil Rufino's pain and suffering and the other for Anna Rufino's loss of consortium. The complaint does not include a cause of action for loss of the normal pursuits and pleasures of life. However, plaintiffs rely onKorek v. United States, 734 F.2d 923, 929 (2d Cir. 1984) in contending that "all elements of damages" should be considered here. As plaintiffs point out, loss of normal pursuits and pleasures of life has been recognized as a proper element of damages, separate and distinct from pain and suffering.See, e.g., Shaw v. United States, 741 F.2d 1202, 1208 (9th Cir. 1984);Thompson v. National Railroad Passenger Corp., 621 F.2d 814, 824 (6th Cir.),cert. denied, 449 U.S. 1035, 66 L. Ed. 2d 497, 101 S. Ct. 611 (1980);Lebrecht v. Bethlehem Steel Corp., 402 F.2d 585, 592 (2d Cir. 1968). Defendant, on the other hand, relies onFlannery v. United States, 718 F.2d 108, 111 (4th Cir. 1983),cert. denied, 467 U.S. 1226, 104 S. Ct. 2679, 81 L. Ed. 2d 874 (1984), in arguing that damages for loss of enjoyment of life may not be awarded here.
In any event, we conclude that on the facts of this case, plaintiff Neil Rufino is not entitled to an award for loss of the pursuits and pleasures of life. Plaintiff is in a comatose condition with no cognitive awareness.
The cases cited to us by the plaintiffs with respect to this issue uniformly involve a plaintiff with the mental capability of understanding and appreciating those "pursuits and pleasures" and the resulting loss thereof. Here however, we have found that this plaintiff has no such capability. Consequently, we are not persuaded that he is entitled in this respect to a separate award in addition to that for "pain and suffering."
We are persuaded, however, that the damages to be awarded for loss of services, past and future, should be increased. Accordingly, our award in this respect is increased by $ 25,000 to $ 100,000.
In making our awards of damages, we have taken into account the probable life expectancy of the parties; in this respect, as plaintiffs' counsel has conceded, Neil Rufino's life expectancy is obviously less than that of a man ni good health. We have also discounted the awards to their present value.
Accordingly, we reaffirm our award of $ 75,000 for the pain and suffering endured by Neil Rufino and award Anna Rufino $ 100,000 for loss of consortium. Plaintiffs may submit a judgment.