LaMendola v. New York State Thruway Authority

7 Misc. 3d 388, 788 N.Y.S.2d 808
CourtNew York Court of Claims
DecidedNovember 1, 2004
DocketClaim No. 93132; Claim No. 93133
StatusPublished

This text of 7 Misc. 3d 388 (LaMendola v. New York State Thruway Authority) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LaMendola v. New York State Thruway Authority, 7 Misc. 3d 388, 788 N.Y.S.2d 808 (N.Y. Super. Ct. 2004).

Opinion

OPINION OF THE COURT

Renée Forgensi Minarik, J.

On October 5, 1995, in the Town of Lancaster, Paul LaMendola Sr. lost control of his 1991 Lincoln and slid into an unoccupied dump truck parked on the right shoulder of the westbound side of the New York State Thruway. The crash killed Mr. LaMendola, his wife Deborah, and two of their four children, Nicholas and Chesa. The two youngest children, Lauren and Paul Jr., were injured in the crash, but survived. In a decision filed June 30, 2000, the Honorable John P Lane determined that defendant’s negligence was the proximate cause of the accident and that defendant was 100% liable for damages. This decision addresses the damages portion of this claim.

Claimants request damages for pain and suffering for Paul Sr. and Deborah LaMendola, Nicholas LaMendola and Chesa LaMendola; damages for the wrongful death of Paul Sr. and Deborah LaMendola, Nicholas LaMendola and Chesa LaMendola; and damages for the personal injuries sustained by Lauren LaMendola and Paul LaMendola Jr. In addition, claimants have requested a damages award for Marie LaMendola Cannizzaro, Paul Sr.’s daughter from a prior marriage, for the loss of her father and half siblings.

Introduction

It became clear to me within the first two days of trial that this would be no ordinary battle of fact and law, but instead would be an odyssey into the emotions, disappointments and destruction of what were once solid familial relationships. The backdrop to this case is not so much the horrendous auto accident as much as it is the story of two children who covet precious little original memories of their once intact nuclear family, memories that have melded with the memories that other people possess of Lauren’s and Paul Jr.’s parents and siblings. Justice can be achieved and their memories preserved without sorting out from whence these memories came; the attorneys in this trial have provided ample objective evidence regarding what Lauren’s and Paul Jr.’s lives were like before the accident and what their lives have been like since the accident.

With the benefit of testimony from well-qualified experts on both sides, friends, family, caregivers and educators, I estab[390]*390lished damages for the more commonly recognized categories of damages. Those figures, and a thorough discussion of those categories, can be found in the full text of the decision which, along with other Court of Claims decisions, is available through the Court of Claims Web site at <www.nyscourtofclaims.state.ny.us.>

In this edited version of the decision I address only the issue of my award of damages for loss of advocacy as separate and distinct from an award for loss of nurture and guidance. •

Lauren

Lauren was treated by three different health care professionals after the accident. The first and most brief term of treatment terminated when she was removed from her first custodial arrangement. The second health care professional, a developmental psychologist, treated her for less than two years. He observed a discrepancy between her IQ, which was in the above average range, and her academic performance, which was poor; Lauren tested at the second-grade level while in the third grade. He opined that it takes an incredible amount of nurture and guidance to help a child develop the skills and attitude necessary to close such an educational gap, as well as a tremendous amount of advocacy, with teachers and the school system, and maybe even health care professionals where necessary. The witness believed Lauren was not getting the nurturing, guidance and advocacy she needed. Biological parents would have a difficult time with such a task, but they would most likely have a bond with their child that would keep them from giving up. An intact and functioning family could make the difference in such a situation. However, it is a very difficult thing to expect another adult to shoulder this burden, especially with a child that is openly hostile.

Lauren was next treated by a licensed psychologist and her term of treatment was approximately one year. The doctor testified that Lauren misses a loving and nurturing support person. She was unable to get along with the rest of her family or make friends. She was also doing poorly in school and was not performing many age-appropriate self-care activities such as brushing her teeth and bathing. Unfortunately, even if Lauren had gotten to the point where she could accept her guardians in a parental role, they may not have been capable of filling this void as, by this time, they were “burned out” and overwhelmed by the situation themselves.

Several months into the therapy, the doctor concluded that Lauren was not getting past her grief over losing her family. [391]*391The conditions that normally allow an individual to do that were not present in her life following the accident. What would be a significant stressor for even an adult, a serious motor vehicle accident with fatalities, was, for Lauren, followed by a change in homes and schools. Such changes are, in and of themselves, significant stressors for any seven year old, even with the help and support of biological parents. Throughout all of this, Lauren lacked a connection with a nurturing parent figure that could help her cope and work through her grief.

Up to this point in her life, Lauren had three potential mother figures, all of whom left her in one way or another. The doctor opined that this fact was a significant reason for Lauren’s anger and feelings of rejection, as well as her inability to accept any guidance or nurture from anyone, except perhaps her maternal grandmother.

I find that the accident had an unquestionable impact on Lauren. The exhibits related to her therapy sessions all reference, on at least one occasion, a description of the accident. Lauren talked about the accident more often early on in the process (see exhibit 80C). The next event with an even greater degree of impact upon Lauren is the loss of her family, in particular, her mother. Finally, the most stressful events occurring postaccident were the changes in Lauren’s home environment. The claimants’ expert’s evaluation of Lauren in 1998 led him to conclude that Lauren possessed a stubborn and defiant demeanor. He diagnosed her with an adjustment disorder with disturbance of mood and conduct, a specific diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (4th ed 1994), requiring the existence of a life stressor causing the disturbance of conduct and mood. The symptoms can be present for six months or until the stressor is removed. Here, the initial stressor was the fatal motor vehicle accident. This was followed by the loss of her parents, then drastic changes in her living arrangements. Neither of these last two stressors have abated.

Testimony and records indicate that, before the accident, Lauren did not have any diagnosable disorder, nor did she require therapy or counseling. My own review of the evidence suggests that Lauren needed a lot of attention, applied inconsistent effort to her school work, was stubborn and frustrated easily (exhibit 86). I agree with claimants’ expert on this point. The fact that Lauren was stubborn and willful was not surprising given the biological family dynamics: four children, two of whom are handicapped, created stress. Parents would have less quality [392]*392time to spend with each child because their time together would have predominately been limit-setting and discipline.

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Bluebook (online)
7 Misc. 3d 388, 788 N.Y.S.2d 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamendola-v-new-york-state-thruway-authority-nyclaimsct-2004.