Lyons Pool. Image Credit: Google Maps.
Parents of deceased son win damages against the City. On July 13, 2011, Bohdan Vitenko drowned in Lyons Pool in the Tompkinsville section of Staten Island. Lyons pool is owned and operated by the New York City Department of Parks and Recreation. Vitenko, then 21-years old, was exercising in the pool with his friend Jonathan Proce for an extended period of time. The Olympic-sized pool measured 165 feet by 100 feet. It was 3.5 feet deep around its edges and 5 feet deep in the center. Both young men succumbed to shallow water blackout, a loss of consciousness followed by low oxygen to the brain. The phenomenon is typically caused by hyperventilating just before a long-breath dive. There were two lifeguards on duty, one of whom was 40 meters away at the time Vitenko drowned.
Vitenko’s parents sued the City to recover damages for negligence and wrongful death. Vitenko’s parents alleged the city was negligent because it failed to provide training to lifeguards about the dangers of shallow water blackout and because the City did not adequately staff the pool on the day of the accident.
A jury trial addressed the issues of liability and damages. On the issue of liability, the jury found the City was 70 percent negligent and Vitenko was 30 percent negligent. With respect to the issue of damages, the jury found damages incurred for past pecuniary loss, future pecuniary loss, and funeral expenses. Parents sustained damages amounting to $440,000 for past pecuniary loss; $1,050,00 for future pecuniary loss for a period of 15 years; and $40,000 for funeral expenses.
A jury trial in the Supreme Court of Richmond County found the City was 70 percent negligent and Vitenko was 30 percent negligent. The jury awarded Vitenko’s parents amounting to $440,000 for past pecuniary loss; $1,050,00 for future pecuniary loss for a period of 15 years; and $40,000 for funeral expenses.
The City motioned to set aside the jury verdict on the issue of liability and asked the Court to rule that the jury returned an excessive damages award. In 2017, Judge Phillip G. Minardo of the Supreme Court of Richmond County denied the motion asking to set aside the jury verdict on the issue on liability, but ruledthe damages award was excessive. The Supreme Court reduced the $440,000 for past pecuniary loss to $308,000 and reduced the $1,050,00 for a period of 15 years to a sum of $210,000 for a period of 3 years. In sum, the plaintiff received a principal sum of $390,600 to reflect the reduced damages awards and the jury’s determination of comparative fault.
Vitenko’s parents appealed the reduced damages award, and the City cross-appealed the Supreme Court’s order denying its motion to set aside the verdict on the issue of liability.
In Novrmber 2022, the Supreme Court, Appellate Division, Second Department, ruled that the City was 70 percent liable . The Appellate Division ruled the jury’s apportionment of fault was correct because the pool did not have enough lifeguards on duty and they lacked proper training in the area of shallow water blackout. The Court ruled the jury had a valid line of reasoning and a permissible inference existed from which the jury could conclude the defendants were negligent.
With regard to the reduced damages award, the Appellate Division ruled the lower court erred on reducing the damages without granting a new trial on damages unless Vitenko’s parents stipulated to the reduced damages.
By: Jacqueline Lacovara (Jacqueline is a New York Law School student, Class of 2024.)
Vitenko v. City of New York, 210 A.D.3d 391 (2022).