# Hollingsworth, III v. Roseland Wake Park, LLC

> District Court, W.D. New York · November 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10361531

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
-3-
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
-6-
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.
Jaucdcgoeu ntFaenltd,m ayno:u ’dI stmielaln ,h ayvoeu t’od hsitriel al nhuarvsee , tyoo u’hdi rset ilaln
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361531. Public record. Not legal advice.