SMITH V. WHITAKER, 734 A.2d 243 (1999) CASE BRIEF

SMITH V. WHITAKER

734 A.2d 243 (1999)

NATURE OF THE CASE: Whitaker (D) sought review of punitive damages award, on issue of availability of punitive damages under Survivor's Act, N.J. Stat. Ann. 2A:15-3, whether evidence of plaintiff's conscious pain and suffering is necessary to sustain cause of action under Act.

FACTS: Robbins was killed when her 1979 Lincoln Town Car was hit by a 36,000-pound oil truck owned by Coastal Oil Company of New York (D1) and driven by D. D was unable to stop the truck as he approached the intersection even though he was 'standing' on the brakes. The truck crossed the intersection, struck Robbins's automobile, and 'overtopped' it. Robbins did not appear to be breathing and she appeared to be unconscious. Robbins was transported to a nearby hospital, where she was pronounced dead. Smith (P) the nominal plaintiff and executor of Robbins's estate, filed an action against Ds under the Wrongful Death Act and the Survivor's Act. P claimed that the truck had been 'improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order.' P alleged direct pecuniary loss for support and maintenance, funeral expenses, pain and suffering and loss of enjoyment of life (hedonic damages). In addition, P sought punitive damages, alleging that defendants' negligent maintenance of the vehicle was 'willful, wanton, and with knowledge of a high degree of probable harm to others.' Over P's objection, the trial court dismissed P's damage claim 'with respect to the pain and suffering,' finding that evidence of conscious pain and suffering was required to present to the jury the issue of compensatory damages under the Survivor's Act. P simply had no evidence that Robbins survived the accident for any amount of time. It dismissed P's damages claim for hedonic damages, because 'hedonic damages would have to be based on the victim's own loss of enjoyment' and were therefore not available in this case. The court ruled that P's claim for punitive damages could go forward in the second phase of the trial. The jury returned a unanimous verdict finding defendants liable for $44,117 under wrongful death and survivor actions. The trial court then tried the punitive damages claims. D1 had been cited for numerous safety violations on the truck, including two 'out-of-service' conditions that indicated the vehicle would not be considered safe to operate until those conditions were corrected. There was no evidence that the necessary repairs were made. The jury found D1 liable for punitive damages in the amount of $1,250,000. The Appellate Division affirmed, concluding that P's punitive damages claims were sustainable even in the absence of an underlying award of compensatory damages. D appealed.

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LEGAL ANALYSIS:

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