Opinion
January 31, 1992
Appeal from the Supreme Court, Wayne County, Strobridge, J.
Present — Boomer, J.P., Pine, Balio, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs, motion granted and new trial granted on the issue of damages. Memorandum: On August 12, 1989, 19-year-old Lori Brown was fatally injured in an automobile accident. An action was commenced by her mother, as administratrix of the goods, chattels and credits of decedent, to recover damages for her wrongful death. Prior to trial, defendant admitted liability and the case was presented to the jury on the sole issue of damages. The jury returned a verdict of $6,000 for wrongful death, in addition to the stipulated funeral expenses of $3,712.50. Plaintiff appeals from Supreme Court's order denying her motion to set aside the verdict as inadequate. The sole issue raised is whether the jury's award for the pecuniary loss suffered on account of decedent's death (see, EPTL 5-4.3), "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]). We believe that it does.
The proof presented at the trial demonstrated that at the time of her death decedent resided in her parents' home. Her parents, Douglas and Vivian, were 41 and 42 years of age at the time of the trial. She had attended high school through the 11th grade. Thereafter, she enrolled in a nurse's aide training course. She successfully completed that course and was certified as a nurse's aide. Except for occasional short periods of time, she remained steadily employed as a nurse's aide. The testimony showed that decedent maintained a close and loving relationship with her parents and performed various household chores for them. When she was employed and lived in their home she regularly contributed $25 each week to her parents. The proof further showed that decedent provided care and assistance to her mother when she was incapacitated due to illness.
In a wrongful death action, the amount of recovery is measured by the "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (EPTL 5-4.3 [a]). "Such damages are limited to loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death" (Parilis v. Feinstein, 49 N.Y.2d 984, 985). A determination of what is "fair and just compensation" is complex and requires consideration of a variety of factors including the decedent's age, sex, relationship to the person seeking recovery, earning capacity, life expectancy, health and intelligence, and the number and circumstances of her distributees (see, Nussbaum v. Gibstein, 138 A.D.2d 193, 210, revd on other grounds 73 N.Y.2d 912; see generally, Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 668). "Where parents are the plaintiff beneficiaries the pecuniary injuries include loss of their child's services * * * not limited to the decedent's minority" (Franchell v. Sims, 73 A.D.2d 1, 5).
Upon the application of the foregoing principles to this case, we find that the damage award made by the jury "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]). Accordingly, the order should be reversed and a new trial granted on the issue of damages (see, Eisleben v. Torchia-Reile, 178 A.D.2d 940).