to its guests from criminal acts of third parties. See Jacqueline S. v. City of New York, 81 N.Y.2d 288, 598 N.Y.S.2d 160, 163, 614 N.E.2d 723 (N.Y. 1993) ("the past experience relied on to establish foreseeability [need not] be of criminal activity at the exact location where plaintiff was harmed or . . . of the same type of criminal conduct to which plaintiff was subjected"); Splawn, 603 N.Y.S.2d at 42-43 ("there is no requirement that the criminal conduct be of the same type as that to which plaintiff was subjected to establish foreseeability . . . , and indeed burglary is a willful act from which physical injury can reasonably be said to be a probable consequence").
The jury's findings that defendant acted unreasonably in proportion to the risk of injury and that its negligence proximately caused plaintiff to suffer injuries are also well supported by the evidence. The jury could have reasonably found that defendant was negligent in at least three respects: the failures of the security guard; the improper functioning of the self-closing hinges on the door to plaintiff's room; and the deficient lighting.
The security guard saw -- and ignored -- the apparent rapist just a few minutes before the rape occurred.
The security guard was not wearing a uniform. He had received no training from defendant and had not even been provided with the Holiday Inn security manual. He took no action with respect to the man on the stairs. When he saw the man, he gave absolutely no thought to whether he should approach the man, even though it was 1:30 a.m. and there was no apparent reason for the man to be walking down the stairs. If the security guard had been wearing a uniform, or if he had approached the man to identify himself as a hotel employee, or if he had inquired as to whether the man was a guest or whether he needed any assistance, the man might have been induced to leave. Alternatively, the security guard could have simply stood and watched the man for a few moments to see what he did. Instead, the security guard ignored him completely and returned to the front desk area, where he remained for about an hour. At the very least, the security guard should have considered whether to take any action. Indeed, a reasonable security guard would have spoken to the man unobtrusively to identify himself as a hotel employee (if he were not already readily identifiable as such) and to inquire whether the man needed assistance or was a guest. As plaintiff's security expert testified, a prudent innkeeper seeks to deter crime by taking affirmative measures.
In addition, plaintiff's lock expert testified that the self-closing hinges on the door to plaintiff's room were not functioning properly. One hinge was missing a pin. The other was not set properly. Consequently, the door did not close by itself, as it should have, when plaintiff went to the car. Nor did it close when she re-entered the room to retrieve the additional money. The jury could have found that if the hinges had been properly maintained and were working properly, the door would have closed by itself and the intruder would not have been able to enter the room.
Finally, plaintiff's lighting expert testified that the lighting was inadequate and uneven. The jury could have reasonably found that the assailant was able to hide in the dark spots and that he would have been detected by plaintiff had the lighting been brighter and more even. In addition, the jury could have reasonably concluded that it was unreasonable for defendant not to have improved the lighting when it was aware of the prior incidents of crime. The jury also could have concluded that proper lighting in itself would have acted as a deterrent, as an intruder would have been more likely to hesitate to commit a criminal act if he knew he could be plainly seen.
When all three of these factors are taken together -- the failures of the security guard, the defective self-closing hinges, and the inadequate lighting -- the jury's finding of 60% negligence on the part of defendant is completely justified. Cf. Garzilli, 419 F. Supp. at 1212 (although sliding glass doors to motel room gave the appearance of being locked, they could be opened from the outside with little difficulty); Jacqueline S., 598 N.Y.S.2d at 161, 163 (question of fact existed for trial as to whether landowner's failure to provide locks on doors constituted actionable negligence); Pantages, 589 N.Y.S.2d at 427 (plaintiff was carried into motel by her assailants in full view of the clerk on duty).
2. Damages for Pain and Suffering
Defendant argues that the jury's awards of $ 750,000 for past pain and suffering and $ 600,000 for future pain and suffering are excessive. I disagree. The jury's pain and suffering awards are firmly supported by the record and are well in line with verdicts approved in similar cases.
The standard of review of a jury's award of damages in a diversity case based on New York law tried in a federal district court was the subject of an opinion issued by the United States Supreme Court just two days ago. In Gasperini v. Center for Humanities, Inc., 116 S. Ct. 2211, 1996 U.S. LEXIS 4051, 1996 WL 340789, 135 L. Ed. 2d 659 (1996), the Court held that in reviewing the excessiveness or inadequacy of a jury's award of damages in a diversity case governed by New York law, a federal district court is to apply C.P.L.R. § 5501(c) (McKinney 1995). That section provides in part as follows:
In reviewing a money judgment . . . in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.
C.P.L.R. § 5501(c) (McKinney 1995) (emphasis added).
Although section 5501(c) is phrased as an instruction to the Appellate Division, as the Supreme Court confirmed in Gasperini, trial judges must apply it as well. 1996 WL 340789, at *9.
To determine whether a jury verdict "deviates materially from what would be reasonable compensation," New York courts compare the award to verdicts approved in similar cases. Gasperini, 1996 WL 340789, at *6 (citing Leon v. J & M Peppe Realty Corp., 190 A.D.2d 400, 596 N.Y.S.2d 380, 389 (1st Dep't 1993), and Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625, 626 (4th Dep't 1993)); see also Consorti, 72 F.3d at 1013. Here, the jury's award of a total of $ 1.35 million for pain and suffering, which must be reduced 40% by the jury's findings on comparative fault, is comparable to other awards in similar cases where guests at a hotel or motel were sexually assaulted. Garzilli, 419 F. Supp. at 1211 ($ 2.5 million in compensatory damages, including lost wages); Splawn, 603 N.Y.S.2d at 42 ($ 1.8 million for past pain and suffering and $ 200,000 for future pain and suffering); Pantages, 589 N.Y.S.2d at 427 ($ 1.5 million for past pain and suffering and $ 375,000 for future pain and suffering, reduced by jury's finding of 50% contributory negligence).
Moreover, on the facts of this case, the jury's award of $ 750,000 for past pain and suffering surely does not "deviate materially from what would be reasonable compensation." Plaintiff was viciously raped at knife point three times by a stranger who repeatedly threatened to kill her. She was held captive and was sodomized for an hour-and-a-half. At the time, she was only 21 years old. As a consequence, she suffered extensive psychological damage and found herself "playing" the rape "over and over again in her head." Although she slept excessively to try to escape from her memories, she suffered from frightening nightmares. She developed a tic or twitch. Tragically, she became a different person, a person who lost, to a great extent, the ability to enjoy life.
Likewise, the jury's award of $ 600,000 for future pain and suffering is reasonable and is well supported by the evidence. Although plaintiff has shown improvement, the jury was entitled to find from the evidence in the record that plaintiff's problems will continue into the future and that the memories of the attack will always remain with her. The jury heard plaintiff testify and observed her for approximately five days. It heard that plaintiff is likely to continue to suffer significantly in the future and, indeed, in some respects for the rest of her life.
The Second Circuit recently observed in Consorti as follows:
While the law seeks by reasonable compensation to make a plaintiff whole, we must recognize that compensation for suffering can be accomplished only in a symbolic and arbitrary fashion. . . . Money awards do not make one whole; they do not alleviate pain. . . .
72 F.3d at 1009. Here, I doubt that the jury's award will make plaintiff whole or alleviate her pain. The jury's award, however, is a reasonable, if symbolic, effort to do so.
In sum, the jury's award of $ 1.35 million for past and future pain and suffering is sustained.
3. Damages for Future Psychological Counseling
Defendant's argument that the jury's award of $ 150,000 for future psychological counseling is excessive is more compelling. Indeed, as plaintiff's counsel concedes, at a rate of $ 120 per session, assuming one session per week, the jury's award of $ 150,000 would provide for future psychological counseling for more than 24 years.
Defendant suggests that the award for future psychological counseling should be reduced to $ 1,920 -- the cost of weekly sessions at $ 120 per session for four months (or sixteen weeks).
As noted above, under the "deviates materially" standard of section 5501(c), courts should compare the amount of the jury's award with verdicts approved in similar cases. For purposes of evaluating the jury's award for future psychological counseling, however, it is difficult to find comparable cases because so many different factors will affect the extent to which future psychological treatment will be required, including: the nature and severity of the injury suffered, plaintiff's age, the progress made to date, the cost of counseling, and the prognosis. In fact, research has not disclosed a New York case with facts sufficiently similar to the facts of this case to provide a meaningful basis of comparison. Cf. Meredith v. City of New York, 220 A.D.2d 563, 632 N.Y.S.2d 812, 813 (reducing award for past and future psychological injury from $ 1 million to $ 700,000 for mother of deceased four year-old child); Stackhouse v. New York City Health & Hosp. Corp., 179 A.D.2d 357, 577 N.Y.S.2d 833, 834 (1st Dep't 1992) (upholding award of $ 116,000 for future psychological counseling for infant injured at birth); Knight v. Long Island College Hospital, 106 A.D.2d 371, 482 N.Y.S.2d 503, 504 (2d Dep't 1984) (vacating $ 1 million award for future physical and psychological injury to injured infant). Moreover, other cases involving sexual assault have not separated out future psychological counseling as a separate item of damages but have instead folded such damages into a general compensatory damages award.
Accordingly, my evaluation of the propriety of the jury's award of $ 150,000 in damages for future psychological counseling must be limited to an evaluation of the evidence in this case. Based on this evidence, the jury's award of $ 150,000 deviates materially from what would be reasonable compensation for future psychological counseling. Defendant's proposed award of $ 1,920, however, is inadequate and also deviates materially from what would be reasonable.
Defendant relies heavily on Dr. Driscoll's testimony that plaintiff would need "continued support for her PTSD for several more months at least." (Driscoll Tr. 64-65). Defendant suggests that any award for future psychological counseling must be limited to "several" -- or four -- months. The jury, however, was not bound by this testimony, even though Dr. Driscoll was plaintiff's own witness. On the basis of the evidence in the record, the jury was entitled to find that plaintiff would need much more than just "several more months" of additional psychological counseling to fully recover from the incident.
First, Dr. Driscoll qualified her estimate or assumption of "several more months" with the words "at least." Moreover, Dr. Driscoll had not treated plaintiff for several months. In the interim, plaintiff had undergone a difficult transition to a new therapist and the trial itself was a traumatic experience. Dr. Driscoll also acknowledged that plaintiff would "always" have certain difficulties. Dr. Driscoll testified, for example, that "traveling will always be difficult for [the plaintiff]" and that plaintiff "will always have more anxiety towards strangers." Dr. Driscoll further testified that, despite the progress that she had made, plaintiff would always be "vulnerable" to a relapse "were she to experience another trauma."
The jury also heard testimony that plaintiff and her boyfriend are planning on moving to Texas after they are married next year. The jury could have reasonably concluded that leaving her family in Ohio, traveling to a new state (where she would undoubtedly meet many strangers), and starting a marital relationship would cause plaintiff to have difficulties that would require counseling.
Finally, the jury was presented with extensive evidence, reviewed above, of the profound changes in plaintiff's personality and her ability to enjoy life. The jury could have reasonably found that the difficulties that accompanied these profound changes would necessitate years of further psychological counseling for a person who was only 23 years old at the time of trial. Indeed, the rape trauma expert who testified at trial indicated that plaintiff's psychological problems would remain with her "for quite a long time."
Given the extensive evidence concerning plaintiff's need for future psychological counseling, defendant's argument that the award for future psychological counseling should be reduced to the cost of weekly sessions for four months is without merit. On the other hand, even taking the evidence in the light most favorable to plaintiff, the jury could not have reasonably concluded that plaintiff's injuries would require her to attend weekly counseling sessions for the next 24 years. Indeed, at the time of trial, plaintiff was receiving psychological counseling somewhat sporadically and, for much of her treatment with Dr. Driscoll, she received counseling only every other week.
For these reasons, the jury's award of $ 150,000 for future psychological counseling is excessive. A more reasonable conclusion, based on all the evidence presented at trial, construed in the light most favorable to plaintiff, is that plaintiff will need psychological counseling every other week for ten years. At $ 120 per session, the cost of plaintiff's future psychological counseling will be $ 31,200. Accordingly, I will order a new trial limited solely to the issue of the amount of damages for future psychological counseling unless plaintiff accepts a remittitur reducing the award for such damages to $ 31,200.
For the foregoing reasons, defendant's motion for a new trial or for judgment as a matter of law is denied, except to the extent that a new trial will be ordered solely on the amount of damages for future psychological counseling unless plaintiff agrees to a reduction of the award for such damages to $ 31,200. Counsel for the plaintiff is to inform the Court of her decision regarding the remittitur by July 8, 1996. If plaintiff accepts the remittitur, judgment will be entered in favor of plaintiff in the amount of $ 838,049.08 -- which is 60% of $ 1,396,748.47, the sum of $ 750,000 for past pain and suffering, $ 600,000 for future pain and suffering, $ 6,417 for lost wages, $ 9,131.47 for other expenses and losses, and $ 31,200 for future psychological counseling. The judgment shall also include costs in favor of plaintiff.
Dated: New York, New York
June 26, 1996
United States District Judge