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July 15, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


This negligence action arises out of an automobile accident resulting in personal injuries to various members of the Estevez family. Jurisdiction is premised under the Federal Tort Claims Act, 28 U.S.C. § 1346 9(b), 2671-80 ("FTCA"), because the car in which plaintiffs were riding on October 11, 1996, collided with a United States postal truck. This case was tried to the court between March 1 and March 22, 1999. The following constitutes the court's findings of fact and conclusions of law.

1. The liability phase of the trial was heard on March 1 and March 2, 1999. At the conclusion of the evidence, the Court made oral findings of fact and conclusions of law on the record. See March 1 & 2 Transcript of Proceedings ("Tr.I") at 237-43. In short, the United States was found to be negligent, based on the actions of the driver of the postal truck. As a result, evidence was submitted by plaintiffs and defendant with respect to damages.

2. The Sixth and Seventh Counts of the complaint, which are the claims of plaintiffs Zobeyda Estevez and Maximo Rafael Estevez for parental loss of service, society and opportunities related to plaintiffs Joseph Rodriguez Estevez and Yaneira Estevez are dismissed. No such claims were presented administratively nor were administrative remedies exhausted, prior to the filing of this lawsuit, as required by the FTCA. See 28 U.S.C. § 2675 (a); McNeil v. United States, 508 U.S. 106, 111, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).

3. On the evening of October 11, 1996, the Estevez vehicle was driven by Pedro Estevez. Tr. I at 61-62 (Testimony of Pedro Estevez). Pedro is not a plaintiff. The passengers in his car included his aunt, Carmen, age 46, who was seated in the front passenger seat. Tr. I at 62 (Testimony of Pedro Estevez). She was wearing a seatbelt. Candida, Pedro's mother, age 56, was seated behind him in the rear seat. Id. She was not wearing a seatbelt. March 2-22 Transcript of Proceedings ("Tr.II") at 164 (Testimony of Candida Estevez). Next to her was her daughter Zobeyda, age 31, who carried her infant son Joseph on her lap. Tr. I at 62 (Testimony of Pedro Estevez); Tr. II at 247 (Testimony of Zobeyda Estevez). She wore a single seatbelt fastened around her and Joseph. Tr. II at 247 (Testimony of Zobeyda Estevez). Next to Zobeyda was her cousin Yaneira, age 13, who was riding in the rear seat without a seatbelt. Tr. I at 62 (Testimony of Pedro Estevez; Tr. II at 232-33 (Testimony of Yaneira Estevez). All of the passengers sustained injuries in the crash and were taken to the emergency room at the Jacobi Medical Center. Plaintiffs Exhibit ("PX") 8, 21a & b, 32, 35, 41.

4. The Government's liability pursuant to the FTCA is determined under New York law. 28 U.S.C. § 1346 (b). There is no precise rule for determining pain and suffering and a trier of fact is bound by a standard of reasonableness in light of all the evidence. Paley v. Brust, 21 A.D.2d 758, 250 N.Y.S.2d 356, 357 (1st Dep't 1964). Courts may award "fair and just compensation for any injuries proximately caused by the negligence of the Government's employees." Goldstein v. United States, 9 F. Supp.2d 175, 188 (E.D.N.Y. 1998). "[P]rior verdicts may guide and enlighten the court and in a sense, may constrain it." Senko v. Fonda, 53 A.D.2d 638, 384 N.Y.S.2d 849, 851 (2d Dep't 1976) (citations omitted); see also, Corbin v. Grand Union Co., No. 96 Civ. 4626 (SWK), 1997 WL 739583, at *10 (S.D.N.Y. Nov. 26, 1997) (examining New York cases to determine appropriate compensation for past and future pain and suffering).

5. "`Each passenger has an independent common-law duty to exercise reasonable care for his [or her] own safety.'" Enders v. Boggs, 178 Misc.2d 528, 679 N.Y.S.2d 561, 562 (Supt. Ct. Rensselear Co. 1998 (citing cases)). A passenger must exercise reasonable care and mitigate damages by wearing seatbelts. Diehl v. Ogorewac, 836 F. Supp. 88, 94 (E.D.N.Y. 1993); Roach v. Szatko, 244 A.D.2d 470, 664 N.Y.S.2d 101, 102 (2d Dep't 1997); Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311, 316 (2d Dep't 1982). Similarly, a passenger cannot ride in an unreasonable position, "[T]o the extent that an occupant to a motor vehicle positions herself or himself in such manner to permit or even enhance the possibility of [a] physical impact, an issue arises analogous to the situation where a seatbelt is not used." Enders, 679 N.Y.S.2d at 563.

6. Any award for future damages must account for the time value of money. Oliveri v. Delta, 849 F.2d 742, 751 (2d Cir. 1988); Metz v. United Technologies Corp., 754 F.2d 63, 68 & n. 3 (2d Cir. 1985). Accordingly, any award for future pain and suffering may be discounted to present value at an appropriate rate based on the evidence. See Oliveri, 849 F.2d at 751 & n. 8. However, the methods for accounting for time value of money vary. Ramirez v. New York City Off-Track Betting Corp., 112 F.3d 38, 41 n. 3, 42 n. 5 (2d Cir. 1997).

7. Section 5041 of the New York Civil Practice Law & Rules ("N.Y.CPLR") governs damage awards in personal injury matters. N.Y. CPLR § 5041(b) states that "[t]he court shall enter judgment in lump sum for past damages, for future damages not in excess of two hundred fifty thousand dollars, and for any damages, fees or costs payable in lump sum or otherwise under subdivisions (c) and (d) of this section." N.Y. CPLR § 5041(e) provides that when future damages in excess of $250,000 are awarded,

  [t]he court shall enter a judgment for the amount of
  the present value of an annuity contract that will
  provide for the payment of the remaining amounts of
  future damages in periodic installments. The present
  value of such contract shall be determined in
  accordance with generally accepted actuarial practices
  by applying the discount rate in effect at the time of
  the award to the full amount of the remaining future
  damages, as calculated pursuant to this subdivision.
  The period of time over which such periodic payments
  shall be made and the period of times used to
  calculate the present value of the annuity contract
  shall be the period of years determined by the trier
  of fact in arriving at the itemized verdict;
  provided, however, that the period of time over which
  such periodic payments shall be made and the period of
  time used to calculate the present value for damages
  attributable to pain and suffering shall be ten years
  of the period of time determined by the trier of
  fact, whichever is less.

8. Any award for future loss of earnings "must be discounted to reflect the fact that, even if there were no inflation, a dollar received today is worth more than the right to receive a dollar in the future." Ramirez, 112 F.3d at 41.

9. I find that any award for lost earnings need not be calculated as an after-tax net amount. I note that in cases applying federal law, the court (or the jury) must consider the effect of income tax on the estimated amount of lost wages. See Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980) (holding that it was error to exclude evidence of decedent's future taxes in case brought under Federal Employers' Liability Act); Fanetti v. Hellenic Lines Ltd., 678 F.2d 424, 431 (2d Cir. 1982) (extending principle "at least to all claims for future wages based solely on federal law").

The Federal Tort Claims Act, however, provides that

  The United States shall be liable . . . in the same
  manner and to the same extent as a private individual
  under like circumstances, but shall not be liable for
  interest prior to judgment or for punitive damages.

Thus, damages are assessed against the United States according to the law of the state where the tortious activity took place. New York law is clear that taxes are not deducted from an award of lost earnings, but rather that the gross amount of lost wages is to be awarded. See Johnson v. Manhattan & Bronx Surface Transit Operating Anthority, 71 N.Y.2d 198, 524 N.Y.S.2d 415, 419, 519 N.E.2d 326 (1988) ("without express statutory direction to the contrary, the damages component of a plaintiffs award as to lost wages . . . should be based on gross projected earnings and no deduction or consideration of after-tax net should be allowed into evidence or charged to the jury"); McKee v. Colt Electronics Co., Inc., 849 F.2d 46, 49 (2d Cir. 1988) ("it is now abundantly clear that under New York law the calculation of plaintiffs damages must be made as if taxes did not exist").

The law in this Circuit is not to the contrary. In O'Connor v. United States, 269 F.2d S78 (2d Cir. 1959), the Court of Appeals held that taxes should be considered when computing lost earning in a case of wrongful death under the FTCA. One year later, however, the Court limited this holding, clarifying that the Court in O'Connor had based its decision on the Oklahoma law of damages. McWeeney v. New York, New Haven and Hartford Railroad Co., 282 F.2d 34, 39 (2d Cir. 1960).*fn1 The instant case, of course, is governed by New York law, which, as stated above, adheres to a different rule than Oklahoma.

I note that a substantial number of courts have held that it is appropriate to deduct taxes from earnings awarded under the FTCA. See, e.g., Shaw v. United States, 741 F.2d 1202 (9th Cir. 1984); Flannery v. United States, 718 F.2d 108 (4th Cir. 1983); Harden v. United States, 688 F.2d 1025 (5th Cir. 1982); Battista v. United States, 889 F. Supp. 716 (S.D.N.Y. 1995). I do not, however, find these cases persuasive. Each of them is based on the FTC. s prohibition on assessing punitive damages against the Government. Thus, they reason that because a plaintiff would have been required to pay taxes on the income he would have received in the absence of the Government's negligence, failing to account for taxes in a damage award is equivalent to assessing noncompensatory, and thus punitive, damages against it. With the Supreme Court's holding in Molzof v. United States, 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992), however, this reasoning is no longer convincing. In Molzof, the Court held that the only "punitive damages" barred by the FTCA are those "legally considered `punitive damages' under traditional common-law principles, namely damages based on plaintiffs intentional misconduct. Id. at 312, 112 S.Ct. 711. I agree with those courts that have held that the failure to deduct taxes does not amount to "punitive damages," as the Supreme Court has now defined it. See, e.g., Palmer v. United States, 146 F.3d 361, 367 (6th Cir. 1998); Manko v. United States, 830 F.2d 831, 837 (8th Cir. 1987); Ferrarelli v. United States, 90 Civ. 4478, 1992 WL 893461, at *9-11 (E.D.N.Y. September 24, 1992).

Thus, the Government is not entitled to the deduction of taxes from the lost earnings awarded here.

10. An infant plaintiff may recover for future lost earnings. Even where the computation of future earnings of an infant plaintiff is "speculative and fraught with difficulties," the "loss of future earnings of an infant plaintiff is properly compensable." Kavanaugh v. Nussbaum, 129 A.D.2d 559, 514 N.Y.S.2d 55, 59 (2d Dep't 1987), mod. on other grounds, 71 N.Y.2d 535, 528 N.Y.S.2d 8, 523 N.E.2d 284 (1988). See also Altman v. Alpha Obstetrics and Gynecology, 255 A.D.2d 276, 679 N.Y.S.2d 642, 644 (2d Dep't 1998) (upholding award of $3,000,000 to infant plaintiff for future lost earnings considering that father had a PhD in education and brother was an honor student at Tufts and assuming that infant plaintiff would have graduated college); Sullivan v. Locastro, 178 A.D.2d a23, 577 N.Y.S.2d 631 (2d Dep't 1991); Ledogar III v. Giordano, 122 A.D.2d 834, 505 N.Y.S.2d 899, 903 (2d Dep't 1986).

Zobeyda Estevez

11. There is no dispute that Zobeyda sustained four fractured ribs and a lacerated spleen. Tr. II at 1218 (Government Summation); 956 (Testimony of Dr. Barron). She remained in the hospital for three days from October 12th through October 14th. Tr. II at 1250 (Defense Summation); PX 41. No surgery was required. Tr. II at 691 (Testimony of Zobeyda Estevez).

12. As noted earlier, Zobeyda wore a seat belt around both her and her infant son Joseph, who was seated on her lap. Tr. I at 62 (Testimony of Pedro Estevez); Tr. II at 247 (Testimony of Zobeyda Estevez). At the time of the impact, Joseph's body crushed Zobeyda's ribs and spleen. Tr. II at 957-959 (Testimony of Dr. Barron). Thus, the inherently dangerous seating arrangement, selected by Zobeyda, was surely a contributing cause of her injury. Id. at 957-59; 995-96 (Testimony of Dr. Barron). Thus, I conclude that Zobeyda is fifty percent (50%) liable for her own injuries.

13. I conclude that the total value of her past pain and suffering is $30,000. See Simone v. Crans, 891 F. Supp. 112, 113 (S.D.N.Y. 1994) ($20,000); Nelson v. State, 105 Misc.2d 107, 431 N.Y.S.2d 955 (Ct.Cl. 1980) ($16,000). When reduced by 50%, Zobeyda is awarded a total ...

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