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Conscious Pain and Suffering Damages in Case Involving Death at Scene of Bus Accident

Posted by: at 5:09 PM on December 9th, 2014

Lourdes Fernandez was 68 years old on July 2, 2008 when, at about 1:30 p.m., she was crossing Madison Street near its intersection with Jackson Street in Manhattan. She was struck by a left turning bus and died at the scene.

After impact, the bus driver continued on his route for 45 minutes – unaware he had even struck Ms. Fernandez – until he received a phone call from the transit authority command center instructing him to pull over immediately, discharge his passengers and wait for an investigation.

Lourdes’ son, Roberto Santana, as administrator of his mother’s estate, sued the bus driver and the city’s transit authority as the owner of the bus) alleging that the driver was negligent because his mother was in the crosswalk, she was struck by the front of the bus and the driver admitted he never saw her. 

At trial, engineering experts for both sides testified as well as a physician for the plaintiff.

The defendants’ expert opined that Ms. Fernandez fell or collapsed, hit her knee and slid underneath the right side of the bus before she was run over by the right wheel.

The plaintiff’s experts opined that Ms. Fernandez was struck in the crosswalk by the front of the bus, knocked to the ground and then rolled underneath the bus until she was fatally run over by a rear wheel of the bus. 

The plantiff’s expert physician, Howard Schwartz, M.D., an internist with a particular background in hospital risk management (who had testified as an expert 24 times concerning the reconstruction of how accidents occurred based on the injuries sustained) opined that 15-25 seconds passed from the moment Ms. Fernandez was aware of the bus coming at her to the moment of loss of consciousness and death.

Schwartz also stated that Ms. Fernandez was struck by the front of the bus and that she was aware she was about to be hit.  The doctor then opined that, after impact, Ms. Fernandez was rolling under the bus which ran over her right pelvis and chest, cracked her ribs, tore her aorta, fractured her spine and, finally, killed her when the wheel ran over and crushed her head.

Oddly enough, the bus was equipped with cameras but no video of the incident was ever provided.  The director of the city’s bus camera project testified that the system was not working properly and he was unable to retrieve the surveillance records.

In the end, the jury believed the plaintiff’s experts and found the bus driver was fully at fault and there was no comparative negligence.

The jurors then awarded pre-death conscious pain and suffering damages in the sum of $750,000 broken down as follows:

                        $250,000 for fear of impending death, plus

                        $500,000 for physical injuries

Defendants appealed and the damages award was reduced to $375,000.

For more than 40 years, the attorneys at LDM&M have been helping people across Wisconsin win the money they deserve for injuries, pain and suffering.  Call them for a free consultation and personal meeting.