## Facts

- On April 30, 1966, an automobile driven by Mary Heym, with her daughter Marilyn Heym as a passenger, collided at a Pennsylvania intersection with a car driven by Ronald Glasser, an employee of the U.S. Department of the Army acting within the scope of his employment.
- Marilyn was about 20 years old and suffered catastrophic, permanent injuries, including severe neurological damage and the loss of an arm, leaving her incompetent and in need of continuous care.
- Evidence showed substantial non-economic harm, including ongoing pain, awareness while unable to communicate, frequent falls without protective reflexes, pain related to her arm and prosthesis, and emotional distress tied to uncontrollable outbursts and functional losses.
- Before the crash, Marilyn had completed two years of a four-year commercial art program, excelled in art, and planned to work as a commercial artist; evidence estimated her earning capacity through age 65 at approximately $125,000.
- Medical proof indicated Marilyn would likely live out a long life expectancy (about 54.7 additional years) and would require personalized institutional care for life, making future care costs a major component of claimed damages.
- Alvin H. Frankel, appointed as guardian of Marilyn’s estate after she was adjudicated incompetent, sued the United States under the Federal Tort Claims Act (FTCA) for Marilyn’s injuries and economic losses; Herbert Heym and Mary Heym also sought recovery for related losses and expenses.
- Separately, Frankel sued Mary Heym in a diversity action for Marilyn’s injuries; Mary impleaded the United States as a third-party defendant. The actions were consolidated and tried to the court without a jury, with Pennsylvania substantive law controlling.
- The Government denied liability, raised contributory negligence by Mary Heym, counterclaimed against her for damage to its vehicle, argued that any award for future care must be discounted to present worth, and proposed a trust-fund arrangement instead of a lump-sum judgment.
- Plaintiffs argued that future institutional-care costs should reflect inflation and should not be reduced to present worth.

## Issues

1. Were Mary Heym and the Government driver concurrently negligent, and did that negligence cause Marilyn’s injuries?
2. Does the mother-driver’s negligence bar or reduce Marilyn’s recovery against the United States in an FTCA action applying Pennsylvania law?
3. Must future institutional-care costs and other future pecuniary losses be reduced to present value, and may the court add an inflation factor to those projections?
4. May or should the court structure future-care damages as a trust fund (or other controlled disbursement) rather than entering a lump-sum money judgment?
5. How should damages and reimbursements be allocated between Marilyn’s guardian and her parents, including recovery of expenses incurred while Marilyn was a minor?

## Decision

- The court found both Mary Heym and the Government’s driver negligent, and found their negligence was a concurrent cause of the collision and Marilyn’s injuries.
- The court held Marilyn’s claim was not barred by her mother’s contributory negligence; the parent’s fault was not imputed to Marilyn to defeat her recovery against the United States.
- The court awarded damages for Marilyn’s destroyed earning capacity and for pain and suffering, based on the evidence of her pre-injury prospects and her post-injury condition.
- The court awarded future hospitalization and institutional-care damages in a lump sum, rejecting the Government’s request that the court create a trust fund as part of the judgment.
- The court reduced future pecuniary losses, including future institutional-care costs and future earnings loss, to present value, and rejected adding a separate inflation component as too speculative for the award calculation under the governing law.
- The court allocated recovery so that Marilyn’s father could recover expenses incurred on Marilyn’s behalf during her minority (before she reached 21), while the guardian recovered future damages for Marilyn’s benefit.

## Legal Principles

- Under the FTCA, the United States is liable for the negligence of federal employees acting within the scope of employment to the same extent a private person would be liable under the forum state’s substantive tort law.
- In Pennsylvania personal-injury law, future pecuniary losses (such as future medical and institutional-care costs and future earning-capacity loss) are awarded as a present lump sum reduced to present worth.
- Courts may decline to incorporate explicit inflation projections into future-damages awards when the evidentiary basis is uncertain and the governing measure is present value.
- A federal court entering an FTCA judgment generally enters a money judgment; absent statutory authorization, it does not convert a tort award into a court-controlled trust or periodic-payment scheme as part of the judgment.
- A parent’s negligence is not automatically attributed to an injured child to bar the child’s recovery from a concurrently negligent tortfeasor.
- Expenses incurred for an injured child during minority may be recoverable by the parent who bears those costs, while post-majority losses and future-care damages belong to the injured person (or a guardian acting for an incompetent adult).

## Conclusion

Frankel v. United States held that concurrent negligence by a Government driver and a parent-driver did not bar recovery for the catastrophically injured daughter, and that under Pennsylvania law the proper remedy was a lump-sum FTCA money judgment awarding lost earning capacity, pain and suffering, and lifetime institutional-care costs reduced to present value, without a separate inflation increase and without a court-imposed trust structure.


Frankel v. United States, 321 F. Supp. 1331 (1970)