Death by Drowning Results in Lawsuit
Mr. Bohdan Vitenko was swimming laps at the Lyons swimming facility in Staten Island which is owned and operated by the New York City Parks Department. During training, Mr. Bohdan and his companions attempted to swim the entire length of the Olympic-sized pool underwater without breathing, and then to maintain their breath under water for as long as possible. During this exercise Mr. Vitenko lost consciousness in three and a half feet of water and unfortunately died. His companion, Mr. Jonathan Proce was also transported to Richmond University Medical Center and was later pronounced dead. The medical term for such drowning cases is referred to as “shallow water blackout” and it is proven that this can happen to even fittest and healthiest of athletes. Ms. Malvina Vitenko, Bohdan's sole distribute and his mother filed a lawsuit against the city for wrongful death and negligence, alleging that the city was negligent in failing to provide an adequate number of lifeguards or provide them with the necessary training. She contended that as a direct consequence of city’s negligence, she lost her 21 year old son. Mr. Proce’s case was settled for an amount of $600,000.
The Lawsuit
During the jury trial, Ms. Malvina Vitenko alleged that her son’s death was wrongful as a result of the City’s negligence to provide training to their lifeguards to deal with cases of shallow water blackouts. She also contended that they failed to assign the adequate number of lifeguards to the lap swimming session, and the assigned lifeguards on the date of the accidents were negligent in performing their duties. The jury allocated 70% of the liability to the city and 30% to Ms. Vitenko and determined that Ms. Vitenko was entitled to receive pecuniary damages in the amount of $1,490,000, ($440,000 in the past six years and $1,050,000 in the future fifteen years). $40,000 was also awarded towards funeral and burial expenses. The matter was then transferred for trial on damages.
The trial judge ruled that the awards were excessive and reduced the total damages to $518,000 ($308,000 past, $210,000 future). The judge also reduced the future period of years from fifteen to three. The reduction was based on Ms. Vitenko and her husband’s testimonies that Bohdan was primarily a full time student at John Jay College who aspired to enter law enforcement. They testified that Bohdan assisted with the family business, did not file tax returns, or contribute to household expenses, and was listed as a dependent on their tax returns. The trial judge also noted the lack of evidence showing Bohdan's potential future contributions to the household, deeming his employment and educational credentials insufficient to justify a 15-year monetary loss claim. Ms. Vitenko appealed this judgment.
The Appeal
In Vitenko vs. City of New York, the Appellate Court reviewed the evidence and testimonies and held that the amount for future pecuniary loss should have been reduced only to $400,000 as opposed to $210,000 under challenge. The liability verdict was upheld but the appellate court determined that the trial judge's damages reduction was excessive. The panel determined that the appropriate pecuniary damages award is $708,000, ($308,000 in past damages and $400,000 in future damages). This was based on Court’s characterization of Bohdan as a wonderful loving son who was helpful in family business and aspired to enter law enforcement. Ultimately, the Court held that the case should be sent back to the Supreme Court, Richmond County for a new trial on pecuniary damages, unless Ms. Vitenko consents within 30 days to a reduction in the damages for past pecuniary loss from $440,000 to $308,000 and for future pecuniary loss from $1,050,000 to $400,000.
Sternberg Injury Law Firm
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