Hollingsworth, III v. Roseland Wake Park, LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

VALENTINE HOLLINGSWORTH, III,

as representative of the Estate of

Valentine Benjamin Hollingsworth,

deceased,

Plaintiff, 6:18-CV-06013 MAT

v.

ROSELAND WAKE PARK, LLC, DECISION

RIXEN US, LLC, and and ORDER

RIXEN CABLEWAYS GMBH,

Defendants.

__________________________________________

INTRODUCTION

Plaintiff Valentine Hollingsworth, III (hereinafter,

“Plaintiff”) brings this action against defendants Roseland Wake

Park, Rixen US, LLC, and Rixen Cableways, GMBH (collectively, the

“Defendants”), alleging negligence, gross negligence, and

recklessness, and strict products liability. Docket No. 1.

Plaintiff seeks damages for the decedent’s pre-impact terror,

conscious pain and suffering, and wrongful death, as well as

punitive damages. Id.

Presently before the Court is Defendants’ joint motion for

partial summary judgment, pursuant to Rule 56 of the Federal Rules

of Civil Procedure, seeking dismissal of Plaintiff’s loss of

services claim. Docket No. 45. For the reasons set forth below,

Defendants’ motion for partial summary judgment is granted.

Plaintiff’s loss of services claim is dismissed.

BACKGROUND

The factual allegations in the complaint are summarized as

relevant, below. Plaintiff is the father of the decedent,

Valentine Benjamin Hollingsworth, and is the personal

representative of his estate. Docket No. 1 at ¶ 1. Defendant

Roseland Wake Park (“Roseland”) operated a wake board park in

Canandaigua, New York. Id. at ¶ 5. Roseland utilized a full-size

cable wakeboarding system that pulled riders in a continuous loop,

which stretched 2100 feet and was equipped with obstacles,

including ramps and jumps. Id. The wake boarding system,

obstacles, ramps, and jumps were manufactured and designed by Rixen

Cableways, and were purchased from and distributed by Rixen US.

Id. at ¶ 6.

On September 22, 2016, the decedent, a 22-year old student at

Rochester Institute of Technology, attended “college night” at

Roseland’s wakeboard park. Id. at ¶ 10. The decedent was

accompanied by his friend, Jacob James. Id. Both the decedent and

Mr. James utilized the full-size cable wakeboarding system. Id. at

¶ 11. They completed at least one loop of the 2100 foot cable

system without incident. Id. at ¶ 12.

During the the next loop, the decedent approached a ramp/jump

called the “funbox.” Id. at ¶¶ 13, 14. As he approached from the

right side of the “funbox,” the decedent’s wakeboard hit the

protrusion on the right side of the obstacle, launching him head

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first into the ramp portion, where his head made contact with the

ramp. Id. at ¶ 15. James, who was approximately two positions

behind the decedent, saw him floating next to the “funbox.” Id. at

¶¶ 13, 16. Both James and Roseland employees attempted to rescue

the decedent. Id. at ¶¶ 17-20. EMTs arrived on scene and

transported the decedent to F.F. Thompson Hospital in Canandaigua,

after which he was taken by Mercy Flight to Strong Memorial

Hospital in Rochester, New York. Id. at ¶ 21. The decedent was

stabilized at Strong Memorial Hospital, but he experienced severe

brain swelling. Id. at ¶ 22. He was pronounced dead on

September 24, 2016. Id. at ¶ 23.

PROCEDURAL HISTORY

Plaintiff filed the instant action on January 5, 2018,

alleging negligence, gross negligence, and recklessness against

defendant Roseland, and strict products liability based on

defective design and failure to warn, against defendants Rixen

Cableways and Rixen US. Docket No. 1. The complaint also seeks

damages for the decedent’s pre-impact terror, conscious pain and

suffering, and wrongful death, as well as punitive damages. Id.

Defendants filed their answers to Plaintiff’s complaint on

March 19, 2018. Docket Nos. 3, 5.

On June 28, 2019, Defendants filed a joint motion for partial

summary judgment, seeking dismissal of Plaintiff’s claim for

damages based on Plaintiff’s alleged loss of services. Docket

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Nos. 45-49. Plaintiff responded on July 29, 2019 (Docket Nos. 51-

55), and Defendants filed their reply on August 12, 2019 (Docket

No. 56).

DISCUSSION

I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) states that summary

judgment shall be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). The court’s role in determining a motion for

summary judgment is not “to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine

issue for trial.” Id. When considering a motion for summary

judgment, the court must draw inferences from underlying facts “in

the light most favorable to the party opposing the motion.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587-88 (1986).

II. Defendants’ Motion for Partial Summary Judgment

Defendants’ contend that they are entitled to summary judgment

on Plaintiff’s claim for damages pursuant to the New York Estates,

Powers and Trusts Law (“EPTL”), Section 5-4.3, because that statute

does not allow “for the recovery of the sentimental and emotional

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impact of the loss of services resulting from a decedent’s death.”

Docket No. 49 at 5. In response, Plaintiff argues that he seeks

damages for pecuniary loss, rather than damages based on emotional

suffering, and that determination of pecuniary loss is question of

fact for the jury. Docket No. 54 at 6-7.

A. Plaintiff’s Alleged Damages

The following factual background is taken from Plaintiff’s and

Defendants’ Rule 56 Statement of Material Facts. Docket Nos. 47

and 55. Plaintiff seeks wrongful death damages stemming from the

death of his son. Docket No. 47 at ¶ 1; Docket No. 55 at ¶ 1. On

December 4, 2018, Plaintiff and Defendants entered into a

stipulation, which dismissed with prejudice Plaintiff’s “‘damage

claims against all defendants seeking a recovery for lost earnings,

benefits or other financial support arising from the death of the

decedent.’” Docket No. 47 at ¶ 2; Docket No. 55 at ¶ 2; Docket

No. 25.

Defendants contend that thereafter, at a court hearing on

January 10, 2019, Plaintiff conceded that the decedent was under no

legal obligation to provide any services to his parents, and that

Plaintiff would not argue at trial that he actually needed any

financial support from his son. Docket No. 47 at ¶ 3. Plaintiff

disagrees with this statement, inasmuch as Plaintiff “specifically

alleged his son would have provided a variety of services to assist

Plaintiff and Decedent’s mother as they aged and why having these

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services provided by their son would enhance their pecuniary value

compared to such services provided by strangers.” Docket No. 55 at

¶ 3. Plaintiff contends that “[d]espite Plaintiff’s ability to pay

for these services, the services have value and such value is

enhanced by these services being performed by a loved one as

opposed to a stranger,” and “[t]he value of the services Decedent

would have provided to his parents as he aged is a question of fact

for the jury.” Id.

Defendants contend that on February 1, 2019, Plaintiff served

a supplemental discovery response in order to narrow the loss of

services being claimed as a result of the decedent’s death. Docket

No. 47 at ¶ 4. Plaintiff disagrees with this statement, and claims

that he served the supplemental discovery response “in accordance

with Magistrate Judge Feldman’s decision for Plaintiff to outline

exactly what loss of services he would be claiming at trial and a

value of the pecuniary losses to the distributees.” Docket No. 55

at ¶ 4. Defendants contend that Plaintiff then agreed to further

limit his loss of services claim to “‘the additional pecuniary

value to [Plaintiff and Mrs. Hollingsworth] of having these

services performed by their son as opposed to a stranger.’” Docket

No. 47 at ¶ 5. Plaintiff disagrees with this statement, stating

that his supplemental discovery response “clearly lays out

Plaintiff’s loss of services he is claiming his son would have

provided. An additional part of Plaintiff’s loss of services claim

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is the enhanced value to Plaintiff and Mrs. Hollingsworth of having

these services performed by their loving son as opposed to a

stranger.” Docket No. 55 at ¶ 5.

The supplemental discovery response to which Plaintiff refers

is found at Docket No. 29-4. Plaintiff’s supplemental response

provides that he “will claim the pecuniary value of the following

lost voluntary services of their deceased son:

1. Assistance with management of Plaintiff’s and

decedent’s mother’s future medical care, including

skilled nursing. This includes assistance in

interviewing and hiring care providers, supervision of

such providers within the home to assure that appropriate

care is being rendered, and making changes in such care

providers if it is not, assistance with medical decisions

regarding choices of therapy, advocacy for Plaintiff and

decedent’s mother with care providers and hospitals, and

serving as health care proxy to make decisions about care

when Plaintiff and decedent’s mother become incapacitated

to make such decisions.

2. Assistance with management of finances in the future

in the event Plaintiff and decedent’s mother become

incapable due to age or infirmity to make such decisions

for themselves, including interviewing and hiring

consultants and employees to manage finances, assuring

investments are being made appropriately, and supervising

any consultants and employees hired to perform management

to assure the services rendered are appropriate and in

the best interests of the Plaintiff and decedent’s

mother.

3. Assistance with management of their home in the

future in the event Plaintiff and decedent’s mother

become incapable due to age or infirmity to make such

decisions for themselves, including interviewing and

hiring consultants and employees to manage their home,

assuring bills are being paid, and supervising any

consultants and employees hired to perform services in

their home to assure the services rendered are

appropriate and in the best interests of the Plaintiff

and decedent’s mother.

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4. Assistance with shopping for groceries, clothing,

gifts, and personal items in the future in the event

Plaintiff and decedent’s mother become incapable due to

age or infirmity of performing these services for

themselves.

Docket No. 29-4 at ¶¶ 1-4.

Defendants contend that on May 6, 2019, during a hearing

before Judge Feldman, Plaintiff further limited his loss of

services claim to “the loss of the psychological benefit and

emotional support of having a loved one (Decedent) perform services

for Plaintiff and his wife in their old age, instead of a

stranger.” Docket No. 47 at ¶ 6; see also Docket No. 43.

Plaintiff denies this statement, and refers the Court to its

supplemental discovery response, “which lays out the loss of

services Plaintiff is claiming in this case.” Docket No. 55 at

¶ 6. Plaintiff contends that he “did not limit his loss of

services claim to the ‘loss of psychological benefit and emotional

support of having a loved one (Decedent) perform services for

Plaintiff and his wife in their old age, instead of a stranger.’

An additional part of Plaintiff’s loss of services claim is the

enhanced benefit Plaintiff and Mrs. Hollingsworth would have

received by having Decedent perform these services, which is

derived from the familial relationship.” Id.

B. Plaintiff’s Loss of Services Claim is Dismissed.

At the crux of the issue currently before the Court is how the

parties characterize the type of damages sought by Plaintiff for

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his loss of services claim. While Plaintiff argues that the

damages he seeks are pecuniary in nature, Defendants contend that

the type of damages described by Plaintiff are emotional or

sentimental - not pecuniary.

It is well-settled that emotional damages are not recoverable

under New York’s wrongful death statute. “New York courts have

strictly construed the wrongful death statute, N.Y. Est. Powers &

Trusts Law § 5–4.3 . . . to allow recovery only for pecuniary loss.

. . . Accordingly, New York has consistently refused to allow

recovery for such claims as mental or emotional suffering in

wrongful death actions.” Morgan Guarantee Trust Co. of N.Y. v.

Garrett Corp., 625 F. Supp. 752, 760-61 (S.D.N.Y. 1986) (citations

omitted); see also Garland v. Herrin, 724 F.2d 16, 20 (2d Cir.

1983) (“Ever since the wrongful death statute was first enacted in

1847, New York’s courts have strictly construed it to exclude

recovery for grief, loss of affection and fellowship, and loss of

consortium. . . . We conclude that the New York Court of Appeals

would not at this time recognize plaintiffs’ claims for damages

resulting from the severe emotional distress caused by the death of

their daughter.”); In re Air Crash Near Clarence Center, New York,

on Feb. 12, 2009, No. 09-md-2085, 2013 WL 12421873, at *2 (W.D.N.Y.

Nov. 3, 2014) (“the law as currently enacted unquestionably

precludes recovery of non-pecuniary damages for wrongful death

claims.”).

Rather, “[t]he plaintiff in a wrongful death action is

entitled to recover damages for only pecuniary loss, i.e., the

economic value of the decedent to each distributee at the time

decedent died. There are four elements of compensable loss

encompassed by the general term ‘pecuniary loss’: (1) decedent’s

loss of earnings; (2) loss of services each survivor may have

received from decedent; (3) loss of parental guidance from

decedent; and (4) the possibility of inheritance from decedent.”

Huthmacher v. Dunlop Tire Corp., 309 A.D.2d 1175, 1176 (4th Dep’t

2003). Here, Plaintiff has clarified that he is not seeking

damages for lost earnings, benefits or other financial support

arising from his son’s death (see Docket No. 25 at ¶ 2), nor is he

arguing that his son would have actually performed any unique

medical or financial services for them (see Docket No. 46-2 at

10-13). In other words, Plaintiff is not “seeking . . . the

replacement value for . . . services, meaning what it would cost to

find someone else outside of the family to perform those

services[.]” Docket No. 46-2 at 23.

In arguing that Plaintiff’s claimed damages under the wrongful

death statute are purely emotional or sentimental, Defendants refer

specifically to the May 6, 2019 court appearance before

Judge Feldman. See Docket No. 49 at 9-11, 15; see also Docket

Nos. 43, 46-2. Plaintiff’s counsel clarified the damages claimed

under New York’s wrongful death statute explaining that “in

essence, it’s the - it’s the psychological benefit to [Plaintiff

and his wife] of having a loved one perform these services as

opposed to paying someone.” Docket No. 46-2 at 7-8. Plaintiff’s

counsel also stated that he disagreed with defense counsel’s

characterization of these damages as “emotional.” Id. at 7.

Plaintiff’s counsel acknowledged that while the characterization of

these damages as “emotional” “certainly fits in some sense, . . .

emotional damages are not recoverable under New York law for

wrongful death. So that’s the reason I did not like that word.”

Id. At the conclusion of the hearing, the following exchange took

place:

Defense counsel: I just want to make sure that we have,

you know, an understanding of exactly what we’re moving -

what the claim is so we know how to define it in terms of

. . . summary judgment.

Judge Feldman: The claim is there’s a pecuniary value to

having a family member perform management services over

the assets of -

Plaintiff’s counsel: The assets, the person, the personal

- the personal bills, all of those types of things, Your

Honor, just like everyone does for their own parents when

they get elderly.

Judge Feldman: There’s some value for that, it kind of

morphs into an emotional connection, but he’s assigning -

wants to assign a pecuniary value to that, and you’re

claiming that’s precluded.

Defense counsel: So the point is that what the plaintiffs

are seeking is not the replacement value for their

services, meaning what it would cost to find someone else

outside of the family to perform those services, but

rather the value to the family emotionally of having a

family doing it?

Judge Feldman: Right. [Plaintiff’s counsel] has indicated

that the nature of the services would be exactly the

same, correct?

Plaintiff’s counsel: Correct.

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have to hire a tax preparer, you’d still have to do

whatever you do, but there’s a value in having - an

emotional value or a pecuniary emotional value in having

a family member be the one that’s the intermediary,

correct?

Plaintiff’s counsel: Correct, Your Honor.

Id. at 22-23.

At the May 6, 2019 hearing, Plaintiff likened the type of

damages he was seeking to “a child who loses a parent and is able

to recover for the value of nurturing and services.” See Docket

No. 46-2 at 7. Plaintiff explained that “I believe that New York

law recognizes . . . when children provide very much the same types

of services to elderly parents, that there’s a pecuniary value . .

. as well.” Id.; see also Docket No. 54 at 20-22. Defendants

argue that Plaintiff is incorrect, and that while surviving

children of deceased parents are permitted under New York law to

recover for loss of parental care, the reverse is not true. See

Docket No. 49 at 16.

In cases involving a child’s loss of training and guidance,

New York courts have “broadly construed” the term “pecuniary

injury” to include “recovery for the ‘economically recognized and

calculable losses of the household management services of [the

deceased]’ and ‘the premature loss of the educational training,

instruction and guidance [that the children] would have received

from the now-deceased parent.’” Mono v. Peter Pan Bus Lines, Inc.,

13 F. Supp. 2d 471, 477 (S.D.N.Y. 1998) (quoting Gonzalez v. N.Y.C.

Housing Authority, 161 A.D.2d 358, 359 (1st Dep’t 1990))

(alterations in original). As explained by the New York Court of

Appeals in Tilly v. Hudson River Railroad Co., “infant children

sustain a loss from the death of their parents, and especially of

their mother, of a different kind. She owes them the duty of

nurture and of intellectual, moral and physical training, and of

such instruction as can only proceed from a mother.” 24 N.Y. 471,

476 (N.Y. 1862) (emphasis added); see also Rogow v. U.S., 173 F.

Supp. 547, 561 (S.D.N.Y. 1959) (“[t]he New York Court of Appeals

has stated that the intellectual, moral and physical training which

a parent gives to a child . . . ‘is not pecuniary in a very strict

sense of the word, but it belongs to that class of wrongs as

distinguished from injuries to the feelings and sentiments; and .

. . therefore, it falls within the term as used in the statute.’”)

(quoting Tilly, 24 N.Y. at 476) (emphasis added); Plotkin v. N.Y.C.

Health and Hospitals Corp., 221 A.D.2d 425, 426 (2d Dep’t 1995)

(“The loss of parental nurture and care, as well as physical,

moral, and intellectual training, may also be included in

determining pecuniary injury.”) (emphasis added). In other words,

the pecuniary nature of this instruction and guidance is premised

on the duty a parent has to his or her child. The Court further

notes that New York courts have permitted recovery by adult

children when there is proof that their decedent parent was still

providing services to them. See Gonzalez v. N.Y.C. Housing

Authority, 77 N.Y.2d 663, 669 (N.Y. 1991).

Plaintiff attempts to extend the reasoning in these cases to

those instances where a parent seeks to recover for the loss of a

child. See Docket No. 46-2 at 7. The Court recognizes that the

type of damages Plaintiff is attempting to recover, which he

describes as the decedent’s assistance with management and

oversight (see Docket Nos. 29-4, 46-2 at 11-13), arguably falls

under the definition of “pecuniary” as defined by the New York

courts in the above-mentioned cases. However, New York courts have

declined to apply this broad definition of pecuniary loss in cases

where the plaintiff is not owed a duty of educational and

intellectual nurturing. As explained in Bumpurs v. N.Y.C. Housing

Authority:

Finally, plaintiff fares no better in terming this a

“loss of nurture” claim, in reliance on Tilley v. Hudson

Riv. R.R. Co. (24 N.Y. 471). There, the court ruled that

affectional injuries of grief and deprivation of society

and companionship are not compensable in a wrongful death

action, as they are not pecuniary injuries. However, the

court also _ stated that minor children could allege a

pecuniary injury from the premature loss of _the

educational training, instruction and guidance they would

have received from their now-deceased parent, because

that loss could affect their “future well-being in a

worldly point of view. . . . [and is] distinguished from

injuries to the feelings and sentiments.” Recovery of

this sort, however, is tied to the parental role of

providing minor children with educational and

intellectual nurturing and the financial effect this

particular loss of nurturing could have on the future of

the infant.

139 A.D.2d 438, 439 (lst Dep’t 1988) (internal citations omitted)

(emphasis added); see also Smith v. Hub Manufacturing, Inc., 634 F.

Supp. 1505, 1511-12 (N.D.N.Y. 1986) (holding that under E.P.T.L.

§ 5-4.3(a), the plaintiff parents could recover medical, funeral,

and burial expenses, as well as expenses relating to their travel

and the decedent’s future financial support, but noting that

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“damages for the loss of a child’s services during minority are

available, but damages for loss of affection are not.”).

The Court agrees with Defendants that the type of damages

Plaintiff seeks for his loss of services claim are not recoverable

under New York’s wrongful death statute. In his memorandum of law

in opposition to summary judgment, Plaintiff argues that

“Defendants attempt to redraft Plaintiff’s claims of pecuniary loss

into claims for emotional suffering. . . .” Docket No. 54 at 6.

However, it is Plaintiff - not Defendants - who mischaracterizes

his own claim. It is clearly established that recovery of

emotional damages is precluded under the wrongful death statute.

However, Plaintiff conflates the concept of recovering the cost of

replacement services - which is permitted under the statute - and

the valuation of emotional damages, which is not permitted under

the statute. See Docket No. 46-2 at 7-8 (“[T]he reason I disagree

with [defense counsel] was the emotional - the word ‘emotional.’

It certainly fits in some sense, but emotional damages are not

recoverable under New York law for wrongful death. So that’s the

reason I did not like that word. But, in essence, it’s the - it’s

the psychological benefit to them of having a loved one perform

these services as opposed to paying someone.”). Plaintiff has

conceded that he is not seeking the cost of replacement services;

rather, he is seeking to recover for the cost of having a family

member - namely, his son - oversee the individuals Plaintiff would

hire to perform certain services, such as providing medical care

and managing finances. See Docket Nos. 29-4, 46-2 at 10-13.

Plaintiff may not avoid the bar to seek emotional damages by merely

labeling the damages he seeks as “pecuniary” when substantively,

they are of an emotional or sentimental nature. See, e.g., Hartman

v. Dermont, 89 A.D.2d 807, 808 (4th Dep’t 1982) (dismissing claim

for pecuniary loss under New York’s wrongful death statute, where

the only showing of “pecuniary” loss was “the daughter’s testimony

in which she described the decedent as her advisor and counselor”

because “there was no proof the decedent possessed any special

education or experience which would have a pecuniary impact on her

daughter. . . .”).

The Court recognizes, and agrees with, Plaintiff’s statement

that New York law allows parents to recover pecuniary losses for

the death of their child. See Docket No. 54 at 15. However, as

explained above, the harm for which Plaintiff seeks to recover here

is not pecuniary. Plaintiff’s counsel clearly stated at the May 6,

2019 hearing before Judge Feldman that he was seeking damages for

“in essence . . . the psychological benefit . . . of having a loved

one perform . . . services as opposed to paying someone.” Docket

No. 46-2 at 7-8. Plaintiff’s counsel also agreed with the

characterization of what Plaintiff was seeking, i.e., having a

family member perform certain services, as having an emotional

value. See id. at 23. These types of damages are not recoverable

under New York’s wrongful death statute. Accordingly, Plaintiff’s

loss of services claim is dismissed.

CONCLUSION

For the reasons set forth above, Defendants’ motion for

partial summary judgement is granted. Plaintiff’s loss of services

claim is dismissed.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

MICHAEL A. TELESCA

United States District Judge

Dated: November 29, 2019

Rochester, New York