Trial Magazine

Pre-impact or pre-death terror damages are often overlooked, particularly, but not only, in wrongful death actions.¹ A plaintiff who falls from a height (such as from an unsafe scaffold, a broken terrace railing, or a collapsing construction crane); who loses control of a car due to an automobile manufacturing defect; who is stuck inside a falling elevator; who is hit by an oncoming vehicle; who survives a plane crash; or who is attacked by an assailant suffers pre-impact terror damages, even if that traumatic event isn’t fatal.

Pre-impact and pre-death terror damages include the emotional and physical pain that the plaintiff suffers which begin immediately when the plaintiff becomes aware of the danger of grave injury or death. The emotional damages are mental distress, high anxiety, fear, hopelessness, and helplessness that then manifest as physical pain to the body—a racing heart, the inability to breathe, and profuse sweating.

Pre-impact and pre-death terror damages is an area that is still developing.² Two aviation cases, arising from the same 1979 American Airlines crash, are recognized as seminal on the subject. Two passengers, Shu-Ren Lin and Lloyd Shatkin, were killed in the same crash; there were no survivors to testify at trial. The court sustained Lin’s pre-impact and pre-death terror damages; it specifically cited to the trial evidence that Lin was seated on the left side of the plane and was in a position to observe the engine and a portion of the left wing fall off the plane.³ Therefore, the court said, the jury could properly infer that Lin recognized he was in grave danger.⁴

However, just a few months before, the same appellate court found that Shatkin did not suffer pre-impact or pre-death terror damages because he was sitting on the right side of the plane and did not make the same observations as Lin and thus did not know that he was in grave danger. Shatkin, the court said, was killed instantly and, unlike in Lin’s case, no evidence was presented at trial to support Shatkin’s pre-impact or ­pre-death terror damages.⁵

Are we to believe that Shatkin did not experience the same pre-impact or pre-death terror as Lin did as their plane was fatally crashing? Did he not feel the plane lose altitude and ­nose-dive? These two cases demonstrate the importance of establishing a very specific factual foundation to provide the jury with the evidentiary basis to award pre-impact or pre-death terror damages.

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The proof required to sustain an award of pre-impact or pre-death terror damages is that the plaintiff or the decedent was aware of the danger of injury or death.

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Gathering Evidence

Whether pre-impact or pre-terror damages are available as a separate item of damages, or whether these damages are considered part of or included in pain and suffering damages, they often are underdeveloped, or worse, ignored. This is particularly true when the time between the fatal event and death is short. The proof required to sustain an award of pre-impact or pre-death terror damages is that the plaintiff or the decedent was aware of the danger of injury or death.

Start the damages clock. Get the 911 call logs to set a “start” time for damages. Remember that 911 calls are made after the traumatic event, so use these calls to approximate the time of the incident that resulted in your client’s injuries. If the person was killed in the incident, use that start time and work backward to make a time line that includes the official time of death. Medical records and official death transcripts are the most reliable sources for time of death, not a pronouncement by a firefighter, a police officer, or emergency medical services personnel.

Use police and agency investigations to find witnesses. Examine all statements taken by the police and by any agency involved in the investigation of the traumatic event. Identify the names and addresses of potential witnesses and then interview them for details about the incident. You also should review the pleadings, statements, and deposition testimony of any plaintiffs in other cases arising from the same event to find out what they saw or heard. Ask these witnesses what they saw immediately before the injury or death occurred. Did they detect terror, fear, or panic in the face, voice, or movements of the person? What frightening noises did they hear that would have alerted the plaintiff or decedent of impending danger?

In a 2008 New York City crane collapse case I handled, seven witnesses (four workers, two property damage plaintiffs, and a witness interviewed by the police) testified at trial about their observations of the decedent, Donald Leo, as the crane he was operating collapsed to the ground from a height of 13 stories.⁶ These witnesses testified that they saw Leo in his full-vision glass cab, struggling with the crane’s controls, moving from side to side, trying to brace himself for the impact, his face “in a panic”; “looking scared”; “bracing himself for the fall”; and “panicked, desperately trying to gain control of the crane’s movements with his instruments.” The witness whom police ­interviewed on the night of the collapse saw Leo put his hands together and look up, as if in prayer. Together, these witnesses gave powerful evidence of Leo’s pre-impact and pre-death terror.

In this joint wrongful death trial, another witness testified that he heard the decedent, Ramadan Kurtaj, who was killed at the ground level, yelling “run, run” to his coworkers. His screams were sufficient to demonstrate the pre-impact and pre-death terror he experienced while trapped in a ditch as the crane collapsed onto him.⁷

Review police and agency records for details. Examine the fire department and police records carefully to determine the time at which and location from which these first responders dispatched. What did they do to assess the scene, and how did they find the person? Did they have to rescue multiple people? Did they establish a plan of action or set up a command station? How long did this take, and what specific conditions did they face at the scene? What backup or special equipment did they have to wait for to extract the person, and what kind of debris and rubble had to be moved? Was there a risk of fire, gas leak, explosion, or other threats that had to be assessed and resolved before or during the rescue efforts? Was visibility reduced due to smoke, weather, or other conditions, and did this impede discovery and rescue?

Evidence from agency investigations also can be useful. Recently, two Boeing 737 MAX airplanes crashed within five months of each other; in both crashes, the entire crew and all the passengers were killed.⁸ These planes have since been grounded worldwide. In the first crash, the recovered cockpit voice recording of the copilot in the last moments of the flight was dramatic: “God is great,” followed by a prayer asking for a miracle.⁹ This is dramatic evidence of the copilot’s pre-impact and pre-death terror damages.

Review all photos of the incident. Carefully look at every photograph. In one case, a man installing safety devices on a church roof suffered an electrical shock to his hand.¹⁰ As a result, he was thrown from his ladder, fell through the scaffolding and ceiling, and then fell another 150 feet before bouncing off a wooden pew onto a marble floor, where he bled to death.

The case was settled in private mediation where the attorney for the man’s wife showed the mediator a photograph of the decedent, on the floor, surrounded in his own blood. This photograph revealed a distinct pattern of blood in the shape of the man’s elbow that repeated for the length of 16–18 inches, demonstrating not only that the man was alive after hitting the marble floor but that he was trying to move and maybe to get up. After a 10-hour mediation, the case was settled and included pre-impact and ­pre-death terror damages.

Interview friends and family. Find out whether any family or friends went to the scene of the incident. If so, did any potential witnesses speak to them about what they observed? Even if the witnesses did not make observations about the decedent during the fatal event, they might provide evidence of conscious pain and suffering. In that case, ask family and friends how they got to the scene and what they observed once arriving. Ask how long it took to get to the scene and whether any traffic or weather conditions extended their arrival time. Were there delays caused by rush-hour traffic, construction along their route, or police activity at the scene? Ask family and friends what they observed when they arrived at the scene that would demonstrate at least the person’s minimal awareness. Did the injuries the person suffered interfere with his or her ability to communicate? Did anyone make an excited utterance about the decedent being alive?

These inquiries may not always yield dramatic results, but you likely will find a witness who heard something or who provides another piece of evidence that will help to prove the existence and extent of pre-impact and pre-death terror damages or that will further support the claim for pain and suffering.

Making the Claim

If your jurisdiction allows a separate claim for pre-impact or pre-death damages, make it as a specific, separate, and additional claim to the physical injury damages.¹¹ Use language such as: “in addition to the excruciating physical pain and suffering the decedent suffered as a result of the above-described physical injuries, the decedent suffered the horrific and intense agony of pre-impact and ­pre-death terror, together with the physical effects of this fear, anxiety, and terror on his or her body.”

Every jurisdiction requires the particulars of your damages claims. Even if your jurisdiction does not specifically allow a separate claim for pre-impact or pre-death damages, you can still use language—more than just the typical or cursory references to mental and emotional damages—that will allow you to make this claim an integral part of your damages. After you specify the physical injuries that you are claiming, include language such as: “The decedent suffered excruciating physical, mental, and emotional pain and suffering prior to death, including the fear, anxiety, and terror from the time he or she was aware of grave harm or death, and during the period he or she sustained the injuries that resulted in death.”

When the plaintiff does not die, use this language: “The plaintiff suffered excruciating physical, mental, and emotional pain and suffering as a result of the defendants’ negligence, including the fear, anxiety, and terror that the plaintiff suffered from the time the plaintiff was aware of grave harm and the time he or she ultimately suffered these injuries.”

Emphasize the character and nature of the terror. Avoid basing a claim for terror damages solely on the amount of time that the decedent experienced the terror. It’s important to emphasize that these damages must be based primarily on the nature of each decedent’s terror in facing death.

In the crane collapse case described earlier, the jury awarded the deceased crane operator, Leo, $7.5 million for pre-impact and pre-death terror and $8 million for conscious pain and suffering.¹² The trial court denied the defendants’ motion to reduce the verdict, citing the specific trial evidence that supported the damages verdict.¹³ The jury awarded Kurtaj, the worker killed at ground level, $7.5 million for pre-impact terror and $24 million for conscious pain and suffering. Although the appellate court reduced those damages to $2.5 million and $5 million for Leo, and $2 million and $8 million for Kurtaj, it noted that “the evidence supported the jury’s findings that Leo and Kurtaj both endured inconceivable pre-impact terror.”¹⁴

Demonstrate what the plaintiff physically experienced. To build a compelling claim for terror damages, you must prove the plaintiff or decedent experienced conscious pain and suffering due to the incident. If the person was killed in the incident, focus on the excruciating nature of the injuries and the pain and suffering he or she experienced before being pronounced dead.

The defense will argue—often without proof—that the decedent was immediately rendered unconscious. To counter this, have your medical expert testify in detail about what happened physically and mentally to the decedent when faced with the potential for grave danger or death. Review the autopsy report and look at the specific injuries the decedent endured. Ask the expert what the injury was that resulted in death—all the other injuries that preceded the fatal injury caused the decedent excruciating pain and suffering before death. Use these injuries to build a better picture of what the decedent experienced.

Explain ‘perception-reaction time.’ This is generally understood to mean the time it takes someone to see, feel, or hear something; recognize it as danger; decide what action to take; and then take that action—that is, react to protect from that danger. An average person’s reaction time can be as short as 0.7 seconds.¹⁵ Age and physical condition may affect that time, but knowledge, training, and experience shorten that time dramatically.

Use the decedent’s experience and, if applicable, training as a crane operator, airline pilot, or truck driver to show jurors that this person had special knowledge that would make him or her instantly aware of the impending danger of injury and death. But also keep in mind that licensed drivers and motorcyclists have general knowledge of the danger of serious injury and death presented by a vehicle speeding toward them or crossing over a divider. For example, an appellate court sustained an award of pre-impact damages for a motorcyclist’s estate because “the record supports plaintiff’s claim for damages for pre-impact terror embodied in the observations of a witness who saw a surprised look on decedent’s face just prior to impact.”¹⁶

Counter the biomechanical expert’s testimony. Only a consciously aware person can recognize and react to danger. The defense likely will use a biomechanical witness to argue a delayed “realization” of the danger by presenting an inaccurate perception-reaction time. The defense will allege that the decedent’s perception-reaction was much longer than it was, and therefore, that he or she did not immediately realize the danger. This is how the defense tries to minimize the amount of time during which the decedent experienced terror.

The decedent’s reaction time should not be based on a general study but rather it must be supported by the trial record. Review the biomechanical expert’s disclosure and make sure it includes a specific ­perception-reaction time. If it does not, move to preclude the testimony or for a more fulsome and specific disclosure together with the facts on which the defense’s perception-reaction time is based.

If your jurisdiction permits deposing the defense biomechanical witness, use that deposition to discredit this expert. Show that the expert does not have the proper education and experience to testify about the plaintiff/decedent’s perception-reaction time. Home in on what facts and witness statements this expert reviewed and relied on. At the conclusion of the deposition, ask whether the expert witness relied on any other facts in forming his or her opinion. But don’t reveal to the witness what facts in the record you have analyzed that the witness has not.

Once you have the deposition transcript, consider a motion in limine to preclude all or part of the defense biomechanical expert’s testimony based on the lack of foundation for the witness’s opinion. That is, the witness’s expert opinion cannot be based on general studies or the witness’s knowledge, training, or experience alone—the opinion must be based on the specific evidence in your case.

This issue comes up in many police misconduct cases: If the police officer’s reaction time is slow, the officer is said to have acted ­reasonably and assessed the situation before shooting. If it is fast, the officer felt his or her life was threatened and shot immediately. Automobile cases are another fertile ground for manipulating perception-reaction time.

If you are before a judge who is inclined to deny a Frye/Daubert hearing, ask for an offer of proof at trial to demonstrate to the court that the biomechanical expert’s opinions as to the decedent’s perception-reaction time are not based on the requisite factual foundation. An example in the crane collapse case described earlier is the lengthy perception-reaction time that the defense biomechanical witness assigned to Leo.¹⁷ This was belied by the witnesses’ testimony about the fear they saw in Leo’s face, his struggling with the controls and bracing himself—evidence of a conscious person reacting to a perceived danger. Leo’s experience as a tower crane operator made him instantly aware that there was a problem with the crane. As an experienced crane operator, he knew the likely outcome of plunging 13 stories when the crane collapsed.

If the judge will not permit an offer of proof outside the jury’s presence, voir dire the defense biomechanical expert in front of the jury. Challenge the expert’s qualifications and run through every fact that the expert doesn’t know or failed to review. Describe each witness statement, incident report, incident investigation, photograph, and deposition that the expert overlooked. Do all of this in ­addition to standard expert ­cross-examination techniques to discredit the witness. If all else fails, move to strike the testimony based on a lack of foundation to form the basis for the expert’s opinion.

To support pre-impact or pre-death terror damages claims in jurisdictions that permit them, you’ll need to establish a strong factual foundation. In jurisdictions where these damages are not specifically permitted, you will need to firm up the facts and think outside the box.

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Bernadette Panzella is an attorney in New York City. She can be reached at BernadettePanzellaPC@yahoo.com.

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Notes

1. Robert Vilensky, Recovery for Pre-Impact Terror and Fear of Impending Death “Overlooked and Underrated,” 63 N.Y. St. B.J. 11 (1991).

2. For more historical background on these damages, see Christine Nierenz, “Why Aren’t the Pilots Doing Something?”: A Look at the Approaches Courts Use to Handle Claims for Pre-Impact Terror in Airplane Disasters, 47 Drake L. Rev. 343, 347–371 (1999); Kathleen Turezyn, When Circumstances Provide a Guarantee of Genuineness: Permitting Recovery for Pre-Impact Emotional Distress, 28 B.C. L. Rev. 881 (1987). 

3. Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 53 (2d Cir. 1984).

4. Id.

5. Shatkin v. McDonnell Douglas Corp., 727 F.2d 202, 206–07 (2d Cir. 1984).

6. In re 91st St. Crane Collapse Litig., 154 A.D.3d 139, 153–54 (N.Y. App. Div. 2017).

7. Id.

8. Lion Air Flight 610 crashed on Oct. 29, 2018, and Ethiopian Airlines Flight 302 crashed on March 10, 2019.

9. Gwyn Topham, Lion Air Pilots Were Looking at Handbook When Plane Crashed, The Guardian (March 20, 2019), https://www.theguardian.com/world/2019/mar/20/lion-air-pilots-were-looking-at-handbook-when-plane-crashed.

10. Est. of Zdybel (Aug. 2015, New York, N.Y.) (Further information available from author on request).

11. For outstanding practical guidance on making claims in death actions and the evidence required to prove damages in death actions, including the evidence that is required to prove pre-impact and pre-death terror damages, see 24 Am. Jur. 3d Proof of Facts §337 (Westlaw March 2019 update); 22A Am. Jur. 2d Death §§195, 196 (Westlaw Feb. 2019 update); 25 Am. Jur. 3d Proof of Facts 251 (Westlaw March 2019 update); 23 Am. Jur. 2d Proof of Facts 1 (Westlaw April 2019 update). For actions in New York, see N.Y. Pattern Jury Instr. Civil 2:320 (Westlaw Dec. 2018 update) (Caveat 3 specifically addresses recovery for the decedent’s pre-impact terror); Francis P. Bensel et al., N.Y. Practice Series: Pers. Injury Practice in N.Y. §3:347, §§3:342–345 (Westlaw Dec. 2018 update).

12. In re 91st St. Crane Collapse Litig., 154 A.D. 3d at 143.

13. Trial Order, Leo v. Lomma, 2015 WL 6607489, No. 117294/2008 (N.Y. Sup. Ct. Oct. 27, 2015) (on file with author). 

14. In re 91st St. Crane Collapse Litig., 154 A.D. 3d at 153; see also Robert S. Kelner & Gail S. Kelner, Pre-Impact Terror and Conscious Pain and Suffering in Wrongful Death Cases, N.Y. L.J. (Sept. 25, 2017) (on file with author). (“In deciding the pre-impact terror awards, the [court] did not discuss the specific time over which the decedents experienced their unimaginable terror before sustaining fatal injuries. The human suffering was not reduced to seconds or minutes, and a calculation based on the time of suffering was a significant aspect of the decision analyzing pre-impact terror.”)

15. For example, see Marc Green, “How Long Does It Take to Stop?” Methodological Analysis of Driver Perception-Brake Times, 2 Trans. Human Factors 195–216 (2000).

16. Boston v. Dunham, 274 A.D.2d 708, 711 (N.Y. App. Div. 2000).

17. Defs.’ Am. Supp. CPLR 3101(d) Disclosure re: Ronald Fijalkowski, Leo, 2015 WL 6607489.