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Maracallo v. Board of Education of the City of New York12/22/2003
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Edited for Publication
Defendant moves to set aside a verdict of the jury which made: (1) an award of $6,000,000 to the Estate of Maracallo for the conscious pain and suffering of Daniel Maracallo, decedent (a drowning victim) and (2) an award of $4,000,000 to Maria Maracallo, his mother with regard to her cause of action for negligent infliction of emotional harm.
ISSUES PRESENTED
In addition to the traditional post verdict motion to set aside the verdict of the jury for insufficiency and/or as contrary to the weight of the evidence and/or for excessiveness, the defendant raises several other novel legal issues, namely:
1. Does a cause of action exist:
a) for the negligent failure to provide timely information to a parent regarding a deceased or missing child?; or,
(b) for negligence in locating the body of the missing child?;
2. May the issue of damages for the alleged negligent infliction of emotional distress be bifurcated for discreet acts and periods of time when the issues are submitted to the jury for determination and evaluation?
FACTS
Plaintiff's decedent, Daniel Maracallo, then 14 years old, died by drowning in an amusement park's wave pool while on an eighth grade school field trip at Dorney Park and Wildwater Kingdom (hereinafter "Dorney Park") in Allentown, Pennsylvania. The drowning occurred at approximately 3:30 p.m. on the 15th day of June 1994. The decedent's teachers, employees of the defendant, admittedly relied entirely upon Dorney Park's lifeguards and did not personally supervise the pool area or take any other special precautions for pool safety, but instead wandered about Dorney Park while their students were permitted to use the pool area. While the record is not altogether pellucid, there was evidence from which a jury could conclude that Daniel's friends reported that he had possibly drowned or was in trouble, but that the lifeguards negligently did not observe him, and that they dismissed the students' pleas in the mistaken belief that Daniel had been rescued when in fact another youth, who coincidentally had also encountered difficulty, had been rescued.
The teachers who were assigned to supervise Daniel in fact failed to learn that the decedent was missing until after everyone left the park which officially closed at 5:00 p.m. At apparently 7 p.m the teachers and the other students left the vicinity of Dorney Park and returned to Bronx County without having found Daniel and without having notified his mother Maria Maracallo that he was missing. Upon returning to the Bronx at approximately 9:00 p.m., the principal and assistant principal notified Maria Maracallo that Daniel was missing. At approximately 1:00 a.m., maintenance personnel at Dorney Park discovered the body of Daniel Maracallo in the wave pool. In the intervening hours, and while decedent's body lay at the pool's bottom, the pool had been used by the lifeguards for relay races and other activities.
As to the cause of action for damages for pain and suffering, expert testimony was adduced which was essentially unrefuted, and which if accepted by the jury as true, would establish that Daniel Maracallo likely survived (after finally going under for the second time) for a terror filled period of six to seven minutes during which he was in a conscious state with an awareness of impending death. This period of six to seven terror filled minutes was in addition to, and followed the period of fright and panic which took place as Maracallo, in the words of the exp
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