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Defendant is a convicted child killer and abuser

The Facts:

Defendant is a convicted child killer and abuser who fatally felled his six-year-old daughter with one blow of his hand and then went out to dinner as she lay on a bathroom floor losing consciousness over the next 8 to 10 hours. Defendant was awarded damages against him for the pain and suffering he caused the little girl during her life and in the tormented hours before her death.

Defendant appeals the said judgment. He appears pro se in the instant action and complains, inter alia, that because the first-grader’s death was preceded by at most eight hours of pain and suffering and quick loss of consciousness, the award of $15 million in compensatory and punitive damages is excessive; that his criminal conviction for causing the child’s death did not establish that he was responsible for any purported injuries sustained before the night of her death, and thus the inquest court had no authority to conduct a hearing on new theories of liability and that he is entitled to a setoff.

The Ruling:

The court disagrees; the award of $5 million for the child’s pain and suffering for eight hours, $5 million for the child’s pain and suffering as a battered child and $5 million in punitive damages against defendant is affirmed.

Defendant’s assertions are entirely without merit.

The instant case involves an abusive father killing his child by knocking her down with a staggering blow to her head and then leaving her without medical attention while he enjoyed dinner and freebased cocaine. Consequently, the court finds it free to evaluate the award on the basis of subjective opinions which are formulated without the availability, or guidance, of precise mathematical quantification.

First, for defendant to dismiss the 8 to 10 hours preceding the child’s death as “at most eight hours of pain and suffering” or, as he alternatively states, a quick loss of consciousness, demonstrates that he is as devoid of any empathy or human emotion now as he was almost 20 years ago when he stood trial for the child’s homicide. For the child, lying on a bathroom floor, her body aching from bruises of varying ages, her brain swelling from her father’s staggering blow, those 8 to 10 hours so cavalierly dismissed by defendant must have seemed like eternity as she waited and wondered when someone would come to comfort her and help make the pain go away. If the only relevant inquiry is what amount is necessary to justly and fairly compensate the victim, then the inquiry must phrase the question in terms of just and fair compensation for the physical pain endured for “seeming eternity” as well as the mental anguish suffered by a child who could not comprehend her father’s brutality, or her equally brutalized mother’s helplessness. Not a single case cited by defendant involves pain and suffering intentionally inflicted on a child by the very adult entrusted with the caring and nurturing, not to mention the loving of that child.

Consequently, the court finds that the award of $5 million is a just and fair compensation for the tormented hours preceding the child’s wrongful death.

Second, defendant’s contention that the award of summary judgment on the liability of prior assault and battery or abuse based on collateral estoppel is without merit. It is well-settled law that collateral estoppel may be employed in a civil action to preclude relitigation of issues actually and necessarily determined in a prior criminal action. It has been ruled that a criminal conviction is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue. All that is required to give collateral estoppel effect to a criminal conviction is that there be an identity of issues in the criminal and subsequent civil actions and that the defendant had a full and fair opportunity to contest the issues which were raised in the criminal proceedings. Here, the defendant’s conviction means that the jury found credible the testimony of witnesses who testified about defendant’s abuse of the child prior to the night of the final blow.

Consequently, the court finds that collateral estoppel properly dictated the award of partial summary judgment on liability.

Notably, defendant was not denied a full and fair opportunity to address the issue that he abused the subject child. It is defendant’s burden to demonstrate the lack of such opportunity, and he fails to do so, particularly in the face of the fact that he was provided a lengthy trial. More so, even if the actual charge of prior abuse was not in front of the jury as a charge standing alone, the issue was most certainly raised and litigated in the criminal action.

Thus, the award for compensatory damages of $5 million for the abuse suffered by the child prior to her death is affirmed.

Third, on the punitive damages, these are appropriate in cases where the wrong complained of is actuated by evil and reprehensible motives and where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime.

Here, defendant’s conduct is clearly a heinous and inexcusable assault upon a defenseless child.

Thus, the court affirms the award for punitive damages.

Fourth, the court has considered the other issues which were raised by defendant on appeal and determined that they are also without merit. Defendant’s attempt to obtain a reduction in the award by contending that there was no evidence of pecuniary loss because the child had no duty to support anyone is untenable. As one Justice of the Court expressly observed in his October 1989 order, the causes of action were not premised on wrongful death but were comprised of tort claims alleging breaches of duties to the child herself. These survivor actions do not necessitate a demonstration of pecuniary loss by the legal representative of the child’s estate.

Lastly, defendant’s assertion that the court erred in failing to determine the apportionment of fault and reduce the judgment against him by the pro rata share or the amount of the settlement, whichever was greater, is unavailing.

Under the law, a non-settling tortfeasor may be permitted to amend his or her answer to assert the defense of the plaintiff’s release of a co-tortfeasor, thereby reducing his or her liability by the equitable share of liability of the settling tortfeasor under General Obligations Law, where the plaintiff will not be prejudiced by the amendment.

Here, the court providently used its discretion in affording defendant the benefit of asserting a setoff from the $985,000 already provided to the child’s legal representative, but declining to permit him to assert the apportionment defense. The child’s legal representative had already been awarded partial summary judgment on liability against defendant and therefore justifiably relied on the inference that she was obligated only to put forward evidence of damages. Under those circumstances, coupled with the lengthy interim between the acts complained of and the inquest, the child’s legal representative would be highly prejudiced if compelled to litigate the extent of the fault of the city defendants. In any event, in light of the abundant evidence of serious criminal and abhorrent conduct, defendant would be hard pressed to demonstrate that his equitable share of the total liability is 50% or less in order to invoke CPLR article 16.

In sum, the awards are affirmed.

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