In May, 2010, the Appellate Division, First Department, declared that the trial court properly set aside a jury award for $3 million for conscious pain and suffering of the decedent in a wrongful death matter.
The facts of the case, Ferguson v. City of New York, are not spelled out in the appeal, however, it is clear that a man was fatally shot in the head, by accident, by Officer Rivera, whose conduct "was in complete disregard of police procedure".
Both sides of the case appealed certain aspects of the jury award, and/or what the trial court did with it, pursuant to post-trial motions.
The trial court struck the $3 m. award for "conscious pain and suffering" because plaintiff failed to show the decedent's consciousness for at least some period of time following the accident. Case law was cited which supported the trial court's ruling: "Plaintiff failed to present any evidence that the decedent was conscious or had any cognitive awareness after he was shot in the head, which caused his nearly instantaneous death"; "A record that shows practically instantaneous death will not support an award for conscious pain and suffering".
The plaintiff's attorneys clearly tried to preserve the award, however, neither the trial court nor the appellate bench agreed with the arguments made: "Plaintiff's conjecture, surmise and speculation that the decedent was consciously suffering is not enough to sustain the claim" and there was no evidence which showed that the decedent experienced fear of impending death when the officer first grabbed him. "There was no evidence that the decedent was aware that Rivera had drawn his weapon, or that the gun was only inches from his head before he was shot".