## Facts

- Sixteen-year-old Robert Gary was riding his bicycle when he was struck and killed by an automobile driven by David Schwartz.
- The automobile was owned by David Schwartz’s mother, the defendant in the action.
- Barbara Gary, Robert’s mother, sued for wrongful death and related damages as a statutory distributee.
- Evidence at trial described Robert as a good young man with plans to attend college and then dental school.
- Robert left his mother and a younger brother; Robert’s father died of a heart attack about four months before trial.
- After a multi-day jury trial, the jury returned a verdict for the plaintiff awarding $2,510.40 in special damages (including funeral and related expenses) and $98,000 in general damages for wrongful death (pecuniary loss).
- The defendant moved to set aside the verdict, arguing the damages were excessive and not supported by the proof given the rule that wrongful-death recovery is limited to pecuniary injuries.

## Issues

1. Whether the jury’s $98,000 wrongful-death award for a 16-year-old decedent should be set aside as excessive where New York law limits recovery to pecuniary loss to the distributees.

## Decision

- The court denied the defendant’s motion to set aside the verdict.
- The court left the jury’s award intact: $2,510.40 in special damages and $98,000 in general wrongful-death damages.

## Legal Principles

- In New York wrongful-death actions, damages are limited to pecuniary injuries suffered by the statutory distributees; recovery is not permitted for grief, mental suffering, or loss of companionship.
- A jury may evaluate pecuniary loss from the death of a minor by considering the child’s age, health, character, habits, ability, and probable future prospects, including evidence bearing on education and likely earning capacity.
- When the decedent is a child, the fact-finder may consider the value of the child’s likely future financial contributions and services to the distributees, and may also account for the costs the parent would have incurred in raising and supporting the child.
- Review of a jury’s damage award on a post-trial motion is limited; the court will not disturb the verdict merely because a different sum could also be justified, and will set it aside only where the amount is outside a reasonable range under the proof and the governing measure of damages.
- A trial court may uphold a substantial award where the evidence supports a rational finding of future pecuniary benefit to the distributees over the decedent’s expected lifetime, even though such calculations involve estimation.

## Conclusion

In *Gary v. Schwartz*, the Supreme Court, Nassau County, refused to set aside a jury’s wrongful-death award to a mother for the death of her 16-year-old son, holding that although New York law restricts wrongful-death recovery to pecuniary loss (and bars awards for grief or loss of companionship), the evidence of the boy’s character and future educational and career plans supported the jury’s assessment of future economic value to the distributees, making the $98,000 general-damages award (plus special damages) permissible and not excessive.


Gary v. Schwartz, 339 N.Y.S.2d 39 (1972)