I read in the newspaper that The City of New York offered to settle the wrongful death claim of Eric Garner for $5,000,000 which offer was promptly turned down by his surviving, allegedly estranged, wife—apparently against the advice of her attorney. This news brings to mind a whole slew of misconceptions the public and the press have about wrongful death claims. The bottom line is that Mrs. Garner should take the money as a gift and that the City of New York and Mayor DeBlasio should hang their collective heads in shame for the injustice of offering to hand over that outrageous, extralegal sum of money. It particularly disturbs me as an attorney who has represented the families of people wrongfully killed; as an attorney who has had the extremely emotional and difficult task of explaining to those families that the law does not allow for payment based upon how much they will miss their loved one or how angry and upset they are about what happened.
The fact of the matter is that other than pain and suffering between the time of the injury and death, and some minor damages such as funeral expenses and any hospital expenses, the damages in a wrongful death case are basically economic damages that are calculated by a qualified, expert economist. Every lawyer has heard in law school that, from a damages stand point, it is much cheaper to negligently kill someone than to severely injure them.
One of many cases I have handled over the years serves to illustrate the point. I was hired by the parents of a woman, about thirty years old, who was severely mentally handicapped since birth. She functioned at about the mental level of a third grader. She was cared for by her parents who owned an apple orchard and she was the apple of her father’s eye (no pun intended). While riding in a car with her mother, a person ran a stop light at a high rate of speed and the woman was killed instantly. Try as I might I could not get the damages much past $150,000. The only thing the woman could do from an employment standpoint was to help bag apples to sell at the family apple stand. An economist could not get very high numbers for what her estate would have potentially been worth and frankly, the figure of $150,000 also included the cost of defense.
I remember sitting in my office with this poor man who was her father, suffering from tremendous grief and anger resulting from the loss of his beloved daughter, and trying to explain that the amount of money did not represent even a fraction of what his daughter was worth to him—but it was the only amount that the law allows for the economic loss of a person.. Acting through his wife, we were finally able to get the case settled.
I have been in a similar situation with the parents of an 18 year old girl who was killed in an auto accident eight hours after her graduation from high school—having to explain to these poor parents, whose daughter was never able to use her full music scholarship to college, that the economic damages allowed by law did not exceed $250,000.
A simplistic way to explain damages in a wrongful death action is that the law allows for the present value of support that children would have received from the decedent as well as the present value of the estate that the person could reasonably be expected to accumulate in his lifetime. It does not allow for the mental suffering of children, spouses or parents. Barring punitive damages it does not allow for punishment of the negligent party.
All of which brings me back to the case of Mr. Eric Garner. The first thing I recently read in the press about his wrongful death case was that Mr. Gardner had a baby daughter by a woman not his wife, and the newspaper referred to her as ”the million dollar baby”—or words to that effect. I read, almost daily, the misinformation that the press puts out about how the law and the courts work. Do they not consult attorneys before they misinform and antagonize their readers? My question is, how on earth do you get a million dollars’ worth of damages in the case of a man who apparently was unemployable—who made his living selling illegal cigarettes on the street—who had a lengthy arrest record? It is mathematically impossible to get to that sort of number.
Was this an attempt to settle the case on the basis of politics? This would entail making a gift outside of what the law prescribes out of some sort of guilt or recompense for the atrocious miscreants some misguided people believe are members of the New York Police Department. I fully expected the City to throw away some money for political sake. Then I saw the figure of $5,000,000. That is beyond any kind of guilt payment. But the really amazing part of the story is that the wife turned it down! She must trust someone more than her own lawyer. To which I say—halleluiah! Maybe the City will actually get some guts and take the case to a jury. Even a runaway jury could not get away with $5,000,000. We will see how this all plays out. My guess is that City Hall will try to do anything to keep the peace.
So why am I angry besides the obvious, that the City of New York gives away huge sums of money that the law does not require it to? I am angry because this is a slap in the face to those parents, spouses and children who have lost loved ones but did not have a “political case”. And I say that out of a realistic look at the legal valuation of damages. Is the City of New York so afraid of an uprising which some of its citizens may cause, that it is willing to give away money provided by the hard working Taxpayers of New York— out of the deep pockets of the City that only exist as a result the efforts of the everyday people who live and work here? The unfortunate answer to that question is probably… yes.