Parents testimony on damages key; discuss what childs life would have been like
A recent $1.9 million award for the wrongful death of an 8-month old baby in an auto accident is believed to be the largest verdict in Minnesota history for the death of an infant.
Late last month, a Dakota County jury handed down the award in Gu v. American Family Insurance Co., a suit brought by the family of an 8-month-old child who was struck and killed by a vehicle while her grandmother was pushing her across the street in a stroller. (The grandmother also died in the accident.)
Minneapolis attorney James G. Weinmeyer, who represented the baby’s family, did not ask the jury for $1.9 million, but told them that a $1 million verdict would be fair. He also instructed jurors that they could award more or less than that figure.
Weinmeyer told Minnesota Lawyer that “the jury really connected with the family. … I felt they understood the loss even better than I did.” The case illustrates that larger verdicts may be attained in death cases involving infants, he added.
The jury’s decision to allocate the fault 75 percent to the driver and 25 percent to the grandmother was consistent with the evidence, said Weinmeyer, adding that at trial he had attributed only about 60 to 70 percent fault to the driver.
The driver’s underinsured motorist coverage limit was $100,000; under Minnesota’s joint-and-several-liability law, the family will be able to collect the entire verdict from the insurer.
At the time of the accident, Suxian Yu and her husband, both from Beijing, were visiting family in Minnesota.
At about 7:45 p.m. on July 25, 2001, Yu pushed a stroller with her granddaughter in it across Radio Drive in Woodbury, Minn. Yu was crossing at intersection that had no stop light or stop sign; the posted speed limit was 50 miles per hour.
While crossing the intersection, Yu and the baby were hit by a vehicle driven by the defendant, a 58-year-old man. The baby was thrown from the stroller and pronounced dead at the hospital. (The grandmother also died; her estate’s claim was handled separately by a different lawyer.)
The eyewitness accounts of the accident, including the driver’s, were contradictory. Pedestrians have the right of way at uncontrolled intersections pursuant to Minn. Stat. sec.169.21.
The driver was never deposed because he died about four months after the accident of causes unrelated to the collision.
Weinmeyer was unable to demonstrate that the driver was speeding, and thus the question was whether the driver was watching for pedestrians. The driver had stated to police that he never saw the stroller, and only saw the grandmother’s shoulder when it was too late to avoid the accident. He also said he was the last in a line of about 20 cars, and was focused on the car ahead of him, according to Weinmeyer.
However, other eyewitnesses said the driver was actually first in line, and that they saw the grandmother speed walking or running across the road. One of the witnesses said that five to 10 seconds elapsed between the time he saw the stroller and the time the driver hit it.
Weinmeyer said that the witnesses had been traumatized and their testimony was confusing. Thus, the trial focused on the expert testimony about the relative negligence of the driver and the grandmother.
The driver’s insurer, American Family, had refused to offer anything on the claim because it believed the grandmother to be wholly at fault, according to Weinmeyer.
The plaintiffs called accident reconstructionist Roger Burgmeier; the insurer presented two experts — Lt. Charles Walerius from the State Highway Patrol and reconstructionist Rodney Lundgren.
The defense experts said that the grandmother was at fault for running into the traffic, but the plaintiff’s witness said both the driver and the grandmother were at fault.
Testimony on damages
The baby’s parents testified as to the damages at the trial.
The baby’s father, Houdong Yu, had left his work and was driving home when he came across the accident scene, according to Weinmeyer. Not only did he view his daughter’s and his mother-in-law’s bodies, but he also had to go home and inform his wife and father-in-law about the accident, said Weinmeyer.
“It was unbelievable,” Weinmeyer stated, noting that the testimony of the parents made a big impact on the jury.
At the time of the accident, they had one other child. By the time of trial they had had another baby. Since Sophia, the child who was killed, was only 8 months old when she died, the family’s interaction with her was necessarily limited. Instead, they talked about all of the things that they did with their other children, and would have done with Sophia had she lived. Some of the things they discussed included their children’s music and dance lessons, sports, birthday parties and holiday celebrations.
Their daughter Christina was 10 at the time of the trial, so their life with her was a kind of “mirror image” for the life that they would have had with Sophia, Weinmeyer said.
Weinmeyer read to the jury from an article that commented that there is no word in the English language, such as widow or widower, to describe a bereaved parent. In the article a woman said, “I was a loving parent who no longer had that privilege.” That was the essence of the message to the jury and the jury got it, he said, adding that “it was an intelligent and insightful jury.”
Although both parents were circumspect and reserved about their loss and their emotions, they also were very sincere and able to communicate with the jury, Weinmeyer said. Having lived in the U.S. since 1991, they spoke English very well and they were able to talk about their feelings, he added. “I could almost sense that the jury saw how painful it was for the mother and father to take the witness stand to talk about it,” he observed.
Civil Jury Instruction Guides (CIVJIG) 91.75 provides that damages in wrongful death cases are not limited to pecuniary loss, but are based on factors such as comfort, counsel, guidance, assistance or protection. The jury is asked to determine the amount of money that will fairly compensate the claimant for the losses caused by the death, but not for the claimant’s own grief and mental distress. The CIVJIG also instructs the jury to consider the amount of time the decedent and the claimant would have had together.
Also testifying about the accident was an eyewitness who was the driver of the car right behind the car involved in the accident. A neonatal intensive care nurse, she immediately got out of the car to try and save the life of the baby.
Weinmeyer called the nurse courageous for her willingness to testify voluntarily. The case got continued, but she came to both court dates, even though her brother-in-law was deathly ill at the time of the actual trial, he observed.
“How often do we see people not wanting to get involved? She could have avoided coming. She came willingly and that made all the difference,” said Weinmeyer.
The attorney for the insurer could not be reached for comment prior to deadline.