Supreme Court, Appellate Division, Second Department, New York.
Robert POLICASTRO, Respondent-Appellant,
v.
Gerard A. SAVARESE, et al., Defendants and Third-Party Plaintiffs-Appellants-
Respondents;
Incorporated Village of Lake Grove, Third-Party Defendant-Appellant-
Respondent.  (Action No. 1)
Wayne KEELTY, et al., Respondents,
v.
Gerard A. SAVARESE, et al., Appellants, et al., Defendants.  (Action No. 2)
Robert POLICASTRO, Respondent-Appellant,
v.
INCORPORATED VILLAGE OF LAKE GROVE, Appellant-Respondent.  (Action No. 3)
Gordon J. LEE, etc., et al., Respondents,
v.
Michael SAVARESE, et al., Defendants and Third-Party Plaintiffs-Appellants;
Incorporated Village of Lake Grove, Third-Party Defendant-Appellant.  (Action
No. 4)
March 25, 1991.
 Four related negligence actions were brought for personal injuries or wrongful 
death sustained in automobile accident.   Judgments were entered based on jury's 
apportionment of fault and assessment of damages following trial by the Supreme 
Court, Suffolk County, Orgera, J.   Village appealed.   The Supreme Court, 
Appellate Division, held that:  (1) evidence supported apportionment of 5% of 
fault to village;  (2) evidence supported apportionment of fault to defendant 
motorist based on theory of concerted action liability;  (3) pecuniary damages 
of $471,000 for death of 36-year-old passenger was not excessive;  (4) award of 
$110,000 for pain and suffering of another passenger was inadequate;  (5) award 
of $1 million for pain and suffering of innocent motorist was appropriate;  and 
(6) damages for pain and suffering and loss of enjoyment of life are not 
separate and distinct elements of damages.
 Affirmed as modified.
 Lawrence, J., concurred in part, dissented in part and filed opinion.
West Headnotes
[1] Appeal and Error  1001(1)
30k1001(1) Most Cited Cases
Jury verdict will not be set aside absent showing that jurors could not have 
reached verdict on any fair interpretation of evidence.
[2] Automobiles  256
48Ak256 Most Cited Cases
Municipality has duty to construct and maintain its highways in reasonably safe 
condition.
[3] Evidence  571(3)
157k571(3) Most Cited Cases
[3] Evidence  571(9)
157k571(9) Most Cited Cases
Evidence supported jury apportionment of 5% fault for automobile accident to 
village where testimony of expert witness indicated that village either created 
or failed to correct defect in roadway when it constructed and resurfaced 
intersection and that defect was proximate cause of accident.
[4] Automobiles  244(60)
48Ak244(60) Most Cited Cases
(Formerly 272k135(9))
Evidence supported jury's apportionment of 20% of fault for automobile accident 
to motorist of vehicle not damaged in accident under theory of concerted action 
liability, even though no independent negligence by motorist was alleged to have 
caused accident, where jury could have concluded that motorist either expressly 
or impliedly agreed to engage in course of conduct which created unreasonable 
danger to other users of highway and which was proximate cause of accident.
[5] Death  99(4)
117k99(4) Most Cited Cases
Pecuniary damages award of $471,000 in wrongful death action arising from 
automobile accident was not excessive where deceased was 36 years old at time of 
death and provided services and guidance to her two children, ages 12 and 14.
[6] Death  86(2)
117k86(2) Most Cited Cases
Loss of parental care and guidance may be considered element of pecuniary 
damages in wrongful death action.
[7] Damages  132(4)
115k132(4) Most Cited Cases
[7] Damages  132(6.1)
115k132(6.1) Most Cited Cases
(Formerly 115k132(6))
Award of pain and suffering damages of $110,000 for injuries sustained in 
automobile accident was so inadequate as to shock conscience of court in view of 
nature of passenger's injuries, lengthy rehabilitation, and permanency of 
injuries to his leg and heart and, thus, stipulation increasing verdict to 
$300,000 was approved.  McKinney's CPLR 5501(c).
[8] Damages  216(10)
115k216(10) Most Cited Cases
Charging jury that damages for pain and suffering and loss of enjoyment of life 
were separate and distinct elements of damages was error since suffering 
attributable to limitation of life's activities is factor to be considered in 
awarding damages for pain and suffering.
[9] Damages  132(3)
115k132(3) Most Cited Cases
[9] Damages  132(6.1)
115k132(6.1) Most Cited Cases
(Formerly 115k132(6))
[9] Damages  132(14)
115k132(14) Most Cited Cases
Award of $1 million for pain and suffering caused by injuries received in 
automobile accident was appropriate where motorist was required to undergo 
extensive rehabilitation for brain injury, permanent paralysis resulted, broken 
leg resulted in limp, and damages to eye muscle resulted in double vision.
[10] Damages  216(8)
115k216(8) Most Cited Cases
Jury instruction, on innocent motorist's claim for loss of future earnings 
resulting from injury sustained in automobile accident, was erroneous where 
instruction stated that motorist's work life expectancy was number of years 
remaining of motorist's life expectancy and, thus, new trial was required unless 
motorist agreed to proportionate reduction of loss of future earnings award.
 **785 Peter T. Affatato, Hicksville (Marshall D. Sweetbaum, of counsel), for 
defendants third-party plaintiffs appellants-respondents in Action No. 1 and 
appellants Savarese in Action Nos. 2 and 4.
 Martin M. McGlynn, Brooklyn, for appellants McMullen in Action No. 4.
 Devitt & Spellman, Smithtown (Vincent A. Malito, of counsel), for appellant-
respondent Incorporated Village of Lake Grove in Action No. 3, third- party 
defendant-appellant-respondent in Action No. 1, and third-party defendant-
appellant in Action No. 4.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum, of 
counsel), for respondent-appellant in Action Nos. 1 and 3.
 Melvin Freidel, Garden City (Norman Bard, of counsel), for respondents in 
Action No. 2.
 Lysaght, Lysaght & Kramer, P.C., Lake Success (Raymond E. McAlonan, of 
counsel), for respondents in Action No. 4.
 Before BROWN, J.P., and KUNZEMAN, KOOPER and LAWRENCE, JJ.
 MEMORANDUM BY THE COURT.
 In four related negligence actions to recover damages for personal injuries 
and/or wrongful death, etc., (1) the defendant Incorporated Village of Lake 
Grove appeals from so much of a judgment of the Supreme Court, Suffolk County 
(Orgera, J.), entered September 26, 1988, as, upon a jury verdict, is in favor 
of the plaintiff Robert Policastro in Action Nos. 1 and 3, and against it in the 
principal sum of $525,000 (of which $110,000 is for pain and suffering and 
$130,000 is for loss of earnings to the date of judgment), the defendants Gerard 
A. Savarese and Michael A. Savarese separately appeal from so much of the same 
judgment as is in favor of Robert Policastro and against them in the principal 
sum of $475,000 (of which $110,000 is for pain and suffering and $130,000 is for 
loss of earnings to the date of judgment), and Robert Policastro cross-appeals 
from the same judgment on the ground of inadequacy, (2) the defendant 
Incorporated Village of Lake Grove appeals from so much of a judgment of the 
same court, entered September 23, 1988, as, upon a jury verdict, is in favor of 
**786 the plaintiff J. Wayne Keelty in Action *850 No. 2 and against it in the 
principal sum of $2,489,561 (of which $1,000,000 is for pain and suffering, 
$1,000,000 is for loss of enjoyment of life, and $420,000 is for loss of future 
earning capacity), and is in favor of the plaintiff Alice I. Keelty in Action 
No. 2 and against it in the principal sum of $150,000, and the defendant Gerard 
A. Savarese and Michael A. Savarese separately appeal from so much of the same 
judgment as is in favor of the plaintiff J. Wayne Keelty and against them in the 
principal sum of $2,439,000 (of which $1,000,000 is for pain and suffering, 
$1,000,000 is for loss of enjoyment of life, and $420,000 is for loss of future 
earning capacity), and is in favor of the plaintiff Alice I. Keelty and against 
them in the principal sum of $150,000, and (3) the defendants third-party 
plaintiffs in Action No. 4 and the third-party defendant Incorporated Village of 
Lake Grove separately appeal from a judgment of the same court, entered 
September 26, 1988, which, upon a jury verdict, is in favor of the plaintiff and 
against the defendants third party-plaintiffs in the principal sum of $408,298.
 ORDERED that the judgment entered September 26, 1988, in Action Nos. 1 and 3, 
is modified, on the law and the facts and as a matter of discretion, by reducing 
the award to the plaintiff Robert Policastro to the principal sum of $285,000 
against the defendant Incorporated Village of Lake Grove and to the principal 
sum of $235,000 against the defendants Gerard A. Savarese and Michael J. 
Savarese, representing damages exclusive of damages for pain and suffering and 
loss of earnings to the date of judgment, severing the plaintiff Robert 
Policastro's claims in Actions Nos. 1 and 3 for damages for pain and suffering 
and loss of earnings to the date of judgment, and granting a new trial to the 
plaintiff Robert Policastro with respect to damages for pain and suffering 
unless the defendants in Action Nos. 1 and 3 shall serve and file in the Office 
of the Clerk of the Supreme Court, Suffolk County, a written stipulation signed 
by them consenting to increase the verdict as to his damages for pain and 
suffering from the principal sum of $110,000 to the principal sum of $300,000, 
and to the entry of an amended judgment accordingly, and granting a new trial to 
the defendants with respect to damages for loss of earnings to the date of 
judgment unless the plaintiff Robert Policastro shall serve and file in the 
Office of the Clerk of the Supreme Court, Suffolk County, a written stipulation 
signed by him consenting to decrease the verdict as to damages for loss of 
earnings to the date of judgment from $130,000 to $75,000 and to the entry of an 
amended judgment accordingly;  *851 as so modified, the judgment entered 
September 26, 1988, in Action Nos. 1 and 3, is affirmed, without costs or 
disbursements;  and it is further,
 ORDERED that the judgment entered September 23, 1988, is modified, on the law 
and the facts and as a matter of discretion, by reducing the award to the 
plaintiff J. Wayne Keelty to the principal sum of $69,000 against the defendant 
Incorporated Village of Lake Grove and to the principal sum of $19,000 against 
the defendants Gerard A. Savarese and Michael J. Savarese, representing damages 
exclusive of damages for pain and suffering, for loss of enjoyment of life and 
for future loss of earnings, severing the plaintiff J. Wayne Keelty's claims in 
Action No. 2 for damages for pain and suffering, and for future loss of earnings 
and granting the defendants a new trial with respect thereto unless the 
plaintiff J. Wayne Keelty shall serve and file in the office of the clerk of the 
Supreme Court, Suffolk County, a written stipulation signed by him consenting to 
reduce the verdict as to his damages for pain and suffering and loss of 
enjoyment of life from the principal sum of $2,000,000 to the principal sum of 
$1,000,000, representing vacatur of the separate award for loss of enjoyment of 
life, and consenting to reduce the verdict as to his damages for future loss of 
earnings from the principal sum of $420,000 to the principal sum of $255,000, 
and to the entry of an amended judgment accordingly;  as so modified, the 
judgment entered September 23, 1988, is affirmed, without costs or 
disbursements, and it is further,
 **787 ORDERED that the judgment entered September 26, 1988, in Action No. 4, is 
affirmed, without costs or disbursements;  and it is further,
 ORDERED that the time for the plaintiffs Robert Policastro and J. Wayne Keelty 
and the time of the defendants in Action Nos. 1 and 3 to serve and file the 
stipulations is extended until 20 days after service upon them of a copy of this 
decision and order with notice of entry, and it is further,
 ORDERED that in the event that the plaintiff Robert Policastro and the 
defendants in Action Nos. 1 and 3 so stipulate, then the judgment entered 
September 26, 1988, in those actions is affirmed, without costs or 
disbursements;  and it is further,
 ORDERED that in the event the plaintiff J. Wayne Keelty so stipulates, then the 
judgment entered September 23, 1988, is affirmed, without costs or 
disbursements.
 Shortly after midnight on July 10, 1983, Gerard Savarese *852 drove his vehicle 
around a curve on Pond Path in the Incorporated Village of Lake Grove and 
crashed into a vehicle driven by J. Wayne Keelty.   Savarese and his passenger 
were not seriously injured.   However, Keelty, his wife and another passenger 
Robert Policastro suffered severe injuries.   A fourth occupant of the Keelty 
car, Susan Mary Lee, was killed.   These four negligence actions ensued.
 Policastro and the Keeltys, in addition to the claims made against Savarese, 
alleged that the village was negligent in that it failed to maintain the roadway 
at the intersection of Stony Brook Road and Pond Path, where the accident 
occurred, in a safe condition.   The Keeltys and the administrator of Lee's 
estate also sued Scott McMullen, Savarese's friend who was driving behind the 
Savarese vehicle at the time of the accident, and Robert McMullen the owner of 
the car Scott McMullen was driving.   The complaint alleged that Savarese and 
McMullen had engaged in a speed contest or other reckless conduct which was a 
proximate cause of the accident.   Following a joint trial, the jury apportioned 
75% of the fault in the happening of the accident to Savarese, 20% to McMullen, 
and 5% to the village.   No issue is raised on appeal with respect to Savarese's 
liability.
 [1][2][3] A jury verdict will not be set aside absent a showing that the jurors 
could not have reached their verdict on any fair interpretation of the evidence 
(see, Nelson v. City of New Rochelle, 154 A.D.2d 661, 546 N.Y.S.2d 661;  
Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   We decline to disturb the 
jury's apportionment of fault with respect to the village.   A municipality has 
a duty to construct and maintain its highways in a reasonably safe condition 
(see, Gutelle v. City of New York, 55 N.Y.2d 794, 447 N.Y.S.2d 422, 432 N.E.2d 
124;  Demesmin v. Town of Islip, 147 A.D.2d 519, 537 N.Y.S.2d 605).   Based on 
the testimony of expert witnesses, the jury could fairly conclude that the 
village either created or failed to correct a defect in the roadway when it 
reconstructed and resurfaced the subject intersection and that this defect was a 
proximate cause of the accident.   The contention of the village that it was 
prejudiced by the court's charge is without merit.
 [4] Similarly, we find that the jury's apportionment of fault with respect to 
the McMullens was based on a fair interpretation of the evidence and should not 
be disturbed.   As there was no contact between the McMullen vehicle and either 
the Savarese or Keelty vehicles, and no independent act of negligence by Scott 
McMullen was alleged to have caused the accident, the court properly instructed 
the jury that the claim against the McMullens was based on a theory of concerted 
*853 action liability.   In order to find the McMullens liable, the jury was 
instructed that the evidence must show that Scott McMullen and Gerard A. 
Savarese agreed, either expressly or impliedly, to engage in a particular course 
of conduct which created an unreasonable danger to other users of the highway 
and which was a proximate cause of the accident (see, Bichler v. Eli Lilly & 
Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182;  Finn v. Morgan, 46 A.D.2d 
229, 362 N.Y.S.2d 292).   There was ample evidence, in particular the testimony 
of the occupants of a vehicle following behind the Savarese **788 and McMullen 
vehicles that night, from which the jury could infer such an agreement (cf., 
Shea v. Kelly, 121 A.D.2d 620, 503 N.Y.S.2d 649).   The McMullens' contention 
that the court's charge was erroneous is without merit.
 [5][6] Certain elements of the jury's verdict on damages are challenged on 
appeal.   The finding that the estate of Susan Mary Lee sustained pecuniary 
damages in the amount of $471,000 is based on a fair interpretation of the 
evidence.   Lee was 36 years old at the time of her death and had two children, 
ages 12 and 14, who testified at the trial with respect to the services and 
guidance she had provided.   Although an award in a wrongful death action is 
limited to pecuniary damages, the loss of parental care and guidance may be 
considered an element of such damages (see, DeLong v. County of Erie, 89 A.D.2d 
376, 455 N.Y.S.2d 887, affd. 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; 
Kenavan v. City of New York, 120 A.D.2d 24, 507 N.Y.S.2d 193, affd. 70 N.Y.2d 
558, 523 N.Y.S.2d 60, 517 N.E.2d 872).   In view of the variety of factors which 
can be considered in determining pecuniary damages (see, Nussbaum v. Gibstein, 
138 A.D.2d 193, 531 N.Y.S.2d 276, revd. on other grounds 73 N.Y.2d 912, 539 
N.Y.S.2d 289, 536 N.E.2d 618), the award was not excessive.
 [7] Policastro contends that the award of damages of $110,000 for pain and 
suffering was inadequate.   As his actions were commenced prior to the effective 
date of CPLR 5501(c) and the trial was commenced prior to August 1, 1988, the 
jury's assessment of damages must be reviewed under the standard of whether the 
verdict is so excessive or inadequate that it shocks the conscience of the court 
(see, Rivera v. City of New York, 160 A.D.2d 985, 554 N.Y.S.2d 706;  Juiditta v. 
Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535).   In view of the nature 
of Policastro's injuries, his lengthy rehabilitation and the permanency of the 
injuries to his leg and heart, we find that the verdict was inadequate to the 
extent indicated.   We find that the verdict for loss of past earnings is 
excessive to the extent indicated.
 [8][9] J. Wayne Keelty was awarded separate damages of $1,000,000 for pain and 
suffering and $1,000,000 for loss of enjoyment of life.   The court erred in 
charging the jury that these are *854 separate and distinct elements of damages 
(see, McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372;   
Nussbaum v. Gibstein, 73 N.Y.2d 912, 539 N.Y.S.2d 289, 536 N.E.2d 618,supra;  
Venable v. New York City Transit Authority, 165 A.D.2d 871, 560 N.Y.S.2d 341, as 
the suffering attributable to the limitation of life's activities is a factor to 
be considered in awarding damages for pain and suffering (see, McDougald v. 
Garber, supra ).   The award for loss of enjoyment of life must be vacated.   
With respect to the issue of Keelty's pain and suffering, his injuries included 
a brain injury, which required him to undergo extensive rehabilitation and which 
resulted in some permanent paralysis, a broken leg which resulted in a limp, and 
a damaged eye muscle which resulted in double vision.   In view of the nature of 
his injuries and their permanency, we find that an award of $1,000,000 for pain 
and suffering is appropriate.
 [10] Finally, in instructing the jury on Keelty's claim for loss of future 
earnings, the court stated that his work life expectancy was 28 years, which was 
his life expectancy, not his work life expectancy.   At another point during the 
trial, the trial court found that Keelty's work life expectancy was only 17 
years, based upon the fact that Keelty was past his forty-seventh birthday at 
the time of the trial, but, during its instructions to the jury, apparently 
confused work life expectancy and life expectancy.   It appears that the jury 
calculated Keelty's loss of future earnings as $15,000 a year.   Thus, a new 
trial is granted unless the plaintiff stipulates to a reduction of the award for 
loss of future earnings to the principal amount of $255,000, which represents a 
loss of $15,000 a year for a work life expectancy of 17 years.
 BROWN, J.P., and KUNZEMAN and KOOPER, JJ., concur.
 **789 LAWRENCE, J., concurs in part and dissents in part, and votes to grant 
the Incorporated Village of Lake Grove a new trial, with the following 
memorandum:
 I concur with my colleagues with regard to all the issues raised on these 
appeals, except the claims with regard to the liability of the defendant 
Incorporated Village of Lake Grove.
 As noted by the majority, the general claim against the Village was that it had 
failed to maintain in a safe condition Stony Brook Road and Pond Path. There was 
extensive testimony presented by both lay and expert witnesses with regard to 
three theories of liability against the Village:  (a) the alleged improper 
markings and lack of markings on the roadways, (b) the alleged improper signs 
and lack of signs on the roadways, and (3) an alleged defect in the roadways, 
which purportedly might cause a vehicle to slide to the wrong side of Pond Path, 
when it entered that road from Stony Brook Road.
 *855 At the conclusion of all of the testimony, the trial court, in effect, 
dismissed two theories of liability as against the Village.   Specifically it 
indicated that in its final charge to the jury, it would instruct them that the 
alleged misplacement or lack of markings or signs on the roadways were not 
proximate causes of the accident as a matter of law and the jury was not to 
consider those claims, relying on Atkinson v. County of Oneida, 59 N.Y.2d 840, 
464 N.Y.S.2d 747, 451 N.E.2d 494.   In addition, the trial court indicated that 
it would sustain an objection to any summation comments that those factors were 
a proximate cause of the accident.
 In compliance with the trial court's ruling, none of the attorneys made any 
reference in their summations to the alleged misplacement or lack of markings or 
signs on the roadways during their comments concerning the proximate causes of 
the accident.   After summations, the counsel for the Village formally requested 
the trial court to instruct the jury in its final charge not to consider the 
alleged misplacement or lack of markings or signs on the roadways.   Despite its 
earlier ruling, the trial court denied the request, noting that it would simply 
not mention the subject.   During its charge to the jury, the trial court did 
not limit the jury to a consideration of the alleged defect in the roadways 
which might cause a vehicle to slide.   Rather, the jury was specifically 
instructed that they could consider all of the testimony they had heard, and 
that certain expert witnesses had given their opinions "with respect to how the 
accident occurred and what various factors contributed to it".   Thus, the trial 
court's instructions clearly permitted the jury to consider the alleged 
misplacement or lack of markings or signs on the roadways.
 While there may have been sufficient evidence upon which the jury could find 
the Village liable based on the alleged defect in the roadways, the jury did not 
indicate the basis for its liability verdict.   Therefore, I cannot conclude 
that the Village, which was found 5% at fault in the happening of the accident, 
was not prejudiced by the trial court's rulings (see, Wirth v. De Vito, 74 
A.D.2d 827, 425 N.Y.S.2d 179;  see also, Cumbo v. Valente, 118 A.D.2d 679, 500 
N.Y.S.2d 30).   Specifically, in light of the trial court's initial ruling 
concerning its charge to the jury, the counsel for the Village reasonably 
refrained from commenting in his summation on the extensive testimony concerning 
the alleged misplacement or lack of markings or signs on the roadways.   
Further, the trial court's subsequent refusal to specifically instruct the jury 
as requested by counsel for the Village *856 resulted in a confusing charge 
which failed to fully inform the jurors how they were to apply the facts to the 
law.
 Accordingly, under these circumstances, I find that the Village is entitled to 
a new trial on the issue of its liability and if necessary, a new determination 
on the apportionment of fault.
567 N.Y.S.2d 784, 171 A.D.2d 849
END OF DOCUMENT

Supreme Court, Appellate Division, Second Department, New York.

Robert POLICASTRO, Respondent-Appellant,v.Gerard A. SAVARESE, et al., Defendants and Third-Party Plaintiffs-Appellants-Respondents;Incorporated Village of Lake Grove, Third-Party Defendant-Appellant-Respondent.  (Action No. 1)Wayne KEELTY, et al., Respondents,v.Gerard A. SAVARESE, et al., Appellants, et al., Defendants.  (Action No. 2)Robert POLICASTRO, Respondent-Appellant,v.INCORPORATED VILLAGE OF LAKE GROVE, Appellant-Respondent.  (Action No. 3)Gordon J. LEE, etc., et al., Respondents,v.Michael SAVARESE, et al., Defendants and Third-Party Plaintiffs-Appellants;Incorporated Village of Lake Grove, Third-Party Defendant-Appellant.  (ActionNo. 4)March 25, 1991.

 Four related negligence actions were brought for personal injuries or wrongful death sustained in automobile accident.   Judgments were entered based on jury's apportionment of fault and assessment of damages following trial by the Supreme Court, Suffolk County, Orgera, J.   Village appealed.   The Supreme Court, Appellate Division, held that:  (1) evidence supported apportionment of 5% of fault to village;  (2) evidence supported apportionment of fault to defendant motorist based on theory of concerted action liability;  (3) pecuniary damages of $471,000 for death of 36-year-old passenger was not excessive;  (4) award of $110,000 for pain and suffering of another passenger was inadequate;  (5) award of $1 million for pain and suffering of innocent motorist was appropriate;  and (6) damages for pain and suffering and loss of enjoyment of life are not separate and distinct elements of damages.
 Affirmed as modified.
 Lawrence, J., concurred in part, dissented in part and filed opinion.

West Headnotes
[1] Appeal and Error  1001(1)30k1001(1) Most Cited Cases
Jury verdict will not be set aside absent showing that jurors could not have reached verdict on any fair interpretation of evidence.
[2] Automobiles  25648Ak256 Most Cited Cases
Municipality has duty to construct and maintain its highways in reasonably safe condition.
[3] Evidence  571(3)157k571(3) Most Cited Cases
[3] Evidence  571(9)157k571(9) Most Cited Cases
Evidence supported jury apportionment of 5% fault for automobile accident to village where testimony of expert witness indicated that village either created or failed to correct defect in roadway when it constructed and resurfaced intersection and that defect was proximate cause of accident.
[4] Automobiles  244(60)48Ak244(60) Most Cited Cases (Formerly 272k135(9))
Evidence supported jury's apportionment of 20% of fault for automobile accident to motorist of vehicle not damaged in accident under theory of concerted action liability, even though no independent negligence by motorist was alleged to have caused accident, where jury could have concluded that motorist either expressly or impliedly agreed to engage in course of conduct which created unreasonable danger to other users of highway and which was proximate cause of accident.
[5] Death  99(4)117k99(4) Most Cited Cases
Pecuniary damages award of $471,000 in wrongful death action arising from automobile accident was not excessive where deceased was 36 years old at time of death and provided services and guidance to her two children, ages 12 and 14.
[6] Death  86(2)117k86(2) Most Cited Cases
Loss of parental care and guidance may be considered element of pecuniary damages in wrongful death action.
[7] Damages  132(4)115k132(4) Most Cited Cases
[7] Damages  132(6.1)115k132(6.1) Most Cited Cases (Formerly 115k132(6))
Award of pain and suffering damages of $110,000 for injuries sustained in automobile accident was so inadequate as to shock conscience of court in view of nature of passenger's injuries, lengthy rehabilitation, and permanency of injuries to his leg and heart and, thus, stipulation increasing verdict to $300,000 was approved.  McKinney's CPLR 5501(c).
[8] Damages  216(10)115k216(10) Most Cited Cases
Charging jury that damages for pain and suffering and loss of enjoyment of life were separate and distinct elements of damages was error since suffering attributable to limitation of life's activities is factor to be considered in awarding damages for pain and suffering.
[9] Damages  132(3)115k132(3) Most Cited Cases
[9] Damages  132(6.1)115k132(6.1) Most Cited Cases (Formerly 115k132(6))
[9] Damages  132(14)115k132(14) Most Cited Cases
Award of $1 million for pain and suffering caused by injuries received in automobile accident was appropriate where motorist was required to undergo extensive rehabilitation for brain injury, permanent paralysis resulted, broken leg resulted in limp, and damages to eye muscle resulted in double vision.
[10] Damages  216(8)115k216(8) Most Cited Cases
Jury instruction, on innocent motorist's claim for loss of future earnings resulting from injury sustained in automobile accident, was erroneous where instruction stated that motorist's work life expectancy was number of years remaining of motorist's life expectancy and, thus, new trial was required unless motorist agreed to proportionate reduction of loss of future earnings award. **785 Peter T. Affatato, Hicksville (Marshall D. Sweetbaum, of counsel), for defendants third-party plaintiffs appellants-respondents in Action No. 1 and appellants Savarese in Action Nos. 2 and 4.
 Martin M. McGlynn, Brooklyn, for appellants McMullen in Action No. 4.
 Devitt & Spellman, Smithtown (Vincent A. Malito, of counsel), for appellant-respondent Incorporated Village of Lake Grove in Action No. 3, third- party defendant-appellant-respondent in Action No. 1, and third-party defendant-appellant in Action No. 4.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum, of counsel), for respondent-appellant in Action Nos. 1 and 3.
 Melvin Freidel, Garden City (Norman Bard, of counsel), for respondents in Action No. 2.
 Lysaght, Lysaght & Kramer, P.C., Lake Success (Raymond E. McAlonan, of counsel), for respondents in Action No. 4.

 Before BROWN, J.P., and KUNZEMAN, KOOPER and LAWRENCE, JJ.


 MEMORANDUM BY THE COURT.
 In four related negligence actions to recover damages for personal injuries and/or wrongful death, etc., (1) the defendant Incorporated Village of Lake Grove appeals from so much of a judgment of the Supreme Court, Suffolk County (Orgera, J.), entered September 26, 1988, as, upon a jury verdict, is in favor of the plaintiff Robert Policastro in Action Nos. 1 and 3, and against it in the principal sum of $525,000 (of which $110,000 is for pain and suffering and $130,000 is for loss of earnings to the date of judgment), the defendants Gerard A. Savarese and Michael A. Savarese separately appeal from so much of the same judgment as is in favor of Robert Policastro and against them in the principal sum of $475,000 (of which $110,000 is for pain and suffering and $130,000 is for loss of earnings to the date of judgment), and Robert Policastro cross-appeals from the same judgment on the ground of inadequacy, (2) the defendant Incorporated Village of Lake Grove appeals from so much of a judgment of the same court, entered September 23, 1988, as, upon a jury verdict, is in favor of **786 the plaintiff J. Wayne Keelty in Action *850 No. 2 and against it in the principal sum of $2,489,561 (of which $1,000,000 is for pain and suffering, $1,000,000 is for loss of enjoyment of life, and $420,000 is for loss of future earning capacity), and is in favor of the plaintiff Alice I. Keelty in Action No. 2 and against it in the principal sum of $150,000, and the defendant Gerard A. Savarese and Michael A. Savarese separately appeal from so much of the same judgment as is in favor of the plaintiff J. Wayne Keelty and against them in the principal sum of $2,439,000 (of which $1,000,000 is for pain and suffering, $1,000,000 is for loss of enjoyment of life, and $420,000 is for loss of future earning capacity), and is in favor of the plaintiff Alice I. Keelty and against them in the principal sum of $150,000, and (3) the defendants third-party plaintiffs in Action No. 4 and the third-party defendant Incorporated Village of Lake Grove separately appeal from a judgment of the same court, entered September 26, 1988, which, upon a jury verdict, is in favor of the plaintiff and against the defendants third party-plaintiffs in the principal sum of $408,298.
 ORDERED that the judgment entered September 26, 1988, in Action Nos. 1 and 3, is modified, on the law and the facts and as a matter of discretion, by reducing the award to the plaintiff Robert Policastro to the principal sum of $285,000 against the defendant Incorporated Village of Lake Grove and to the principal sum of $235,000 against the defendants Gerard A. Savarese and Michael J. Savarese, representing damages exclusive of damages for pain and suffering and loss of earnings to the date of judgment, severing the plaintiff Robert Policastro's claims in Actions Nos. 1 and 3 for damages for pain and suffering and loss of earnings to the date of judgment, and granting a new trial to the plaintiff Robert Policastro with respect to damages for pain and suffering unless the defendants in Action Nos. 1 and 3 shall serve and file in the Office of the Clerk of the Supreme Court, Suffolk County, a written stipulation signed by them consenting to increase the verdict as to his damages for pain and suffering from the principal sum of $110,000 to the principal sum of $300,000, and to the entry of an amended judgment accordingly, and granting a new trial to the defendants with respect to damages for loss of earnings to the date of judgment unless the plaintiff Robert Policastro shall serve and file in the Office of the Clerk of the Supreme Court, Suffolk County, a written stipulation signed by him consenting to decrease the verdict as to damages for loss of earnings to the date of judgment from $130,000 to $75,000 and to the entry of an amended judgment accordingly;  *851 as so modified, the judgment entered September 26, 1988, in Action Nos. 1 and 3, is affirmed, without costs or disbursements;  and it is further,
 ORDERED that the judgment entered September 23, 1988, is modified, on the law and the facts and as a matter of discretion, by reducing the award to the plaintiff J. Wayne Keelty to the principal sum of $69,000 against the defendant Incorporated Village of Lake Grove and to the principal sum of $19,000 against the defendants Gerard A. Savarese and Michael J. Savarese, representing damages exclusive of damages for pain and suffering, for loss of enjoyment of life and for future loss of earnings, severing the plaintiff J. Wayne Keelty's claims in Action No. 2 for damages for pain and suffering, and for future loss of earnings and granting the defendants a new trial with respect thereto unless the plaintiff J. Wayne Keelty shall serve and file in the office of the clerk of the Supreme Court, Suffolk County, a written stipulation signed by him consenting to reduce the verdict as to his damages for pain and suffering and loss of enjoyment of life from the principal sum of $2,000,000 to the principal sum of $1,000,000, representing vacatur of the separate award for loss of enjoyment of life, and consenting to reduce the verdict as to his damages for future loss of earnings from the principal sum of $420,000 to the principal sum of $255,000, and to the entry of an amended judgment accordingly;  as so modified, the judgment entered September 23, 1988, is affirmed, without costs or disbursements, and it is further,
 **787 ORDERED that the judgment entered September 26, 1988, in Action No. 4, is affirmed, without costs or disbursements;  and it is further,
 ORDERED that the time for the plaintiffs Robert Policastro and J. Wayne Keelty and the time of the defendants in Action Nos. 1 and 3 to serve and file the stipulations is extended until 20 days after service upon them of a copy of this decision and order with notice of entry, and it is further,
 ORDERED that in the event that the plaintiff Robert Policastro and the defendants in Action Nos. 1 and 3 so stipulate, then the judgment entered September 26, 1988, in those actions is affirmed, without costs or disbursements;  and it is further,
 ORDERED that in the event the plaintiff J. Wayne Keelty so stipulates, then the judgment entered September 23, 1988, is affirmed, without costs or disbursements.
 Shortly after midnight on July 10, 1983, Gerard Savarese *852 drove his vehicle around a curve on Pond Path in the Incorporated Village of Lake Grove and crashed into a vehicle driven by J. Wayne Keelty.   Savarese and his passenger were not seriously injured.   However, Keelty, his wife and another passenger Robert Policastro suffered severe injuries.   A fourth occupant of the Keelty car, Susan Mary Lee, was killed.   These four negligence actions ensued.
 Policastro and the Keeltys, in addition to the claims made against Savarese, alleged that the village was negligent in that it failed to maintain the roadway at the intersection of Stony Brook Road and Pond Path, where the accident occurred, in a safe condition.   The Keeltys and the administrator of Lee's estate also sued Scott McMullen, Savarese's friend who was driving behind the Savarese vehicle at the time of the accident, and Robert McMullen the owner of the car Scott McMullen was driving.   The complaint alleged that Savarese and McMullen had engaged in a speed contest or other reckless conduct which was a proximate cause of the accident.   Following a joint trial, the jury apportioned 75% of the fault in the happening of the accident to Savarese, 20% to McMullen, and 5% to the village.   No issue is raised on appeal with respect to Savarese's liability.
 [1][2][3] A jury verdict will not be set aside absent a showing that the jurors could not have reached their verdict on any fair interpretation of the evidence (see, Nelson v. City of New Rochelle, 154 A.D.2d 661, 546 N.Y.S.2d 661;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   We decline to disturb the jury's apportionment of fault with respect to the village.   A municipality has a duty to construct and maintain its highways in a reasonably safe condition (see, Gutelle v. City of New York, 55 N.Y.2d 794, 447 N.Y.S.2d 422, 432 N.E.2d 124;  Demesmin v. Town of Islip, 147 A.D.2d 519, 537 N.Y.S.2d 605).   Based on the testimony of expert witnesses, the jury could fairly conclude that the village either created or failed to correct a defect in the roadway when it reconstructed and resurfaced the subject intersection and that this defect was a proximate cause of the accident.   The contention of the village that it was prejudiced by the court's charge is without merit.
 [4] Similarly, we find that the jury's apportionment of fault with respect to the McMullens was based on a fair interpretation of the evidence and should not be disturbed.   As there was no contact between the McMullen vehicle and either the Savarese or Keelty vehicles, and no independent act of negligence by Scott McMullen was alleged to have caused the accident, the court properly instructed the jury that the claim against the McMullens was based on a theory of concerted *853 action liability.   In order to find the McMullens liable, the jury was instructed that the evidence must show that Scott McMullen and Gerard A. Savarese agreed, either expressly or impliedly, to engage in a particular course of conduct which created an unreasonable danger to other users of the highway and which was a proximate cause of the accident (see, Bichler v. Eli Lilly & Co., 55 N.Y.2d 571, 450 N.Y.S.2d 776, 436 N.E.2d 182;  Finn v. Morgan, 46 A.D.2d 229, 362 N.Y.S.2d 292).   There was ample evidence, in particular the testimony of the occupants of a vehicle following behind the Savarese **788 and McMullen vehicles that night, from which the jury could infer such an agreement (cf., Shea v. Kelly, 121 A.D.2d 620, 503 N.Y.S.2d 649).   The McMullens' contention that the court's charge was erroneous is without merit.
 [5][6] Certain elements of the jury's verdict on damages are challenged on appeal.   The finding that the estate of Susan Mary Lee sustained pecuniary damages in the amount of $471,000 is based on a fair interpretation of the evidence.   Lee was 36 years old at the time of her death and had two children, ages 12 and 14, who testified at the trial with respect to the services and guidance she had provided.   Although an award in a wrongful death action is limited to pecuniary damages, the loss of parental care and guidance may be considered an element of such damages (see, DeLong v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887, affd. 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; Kenavan v. City of New York, 120 A.D.2d 24, 507 N.Y.S.2d 193, affd. 70 N.Y.2d 558, 523 N.Y.S.2d 60, 517 N.E.2d 872).   In view of the variety of factors which can be considered in determining pecuniary damages (see, Nussbaum v. Gibstein, 138 A.D.2d 193, 531 N.Y.S.2d 276, revd. on other grounds 73 N.Y.2d 912, 539 N.Y.S.2d 289, 536 N.E.2d 618), the award was not excessive.
 [7] Policastro contends that the award of damages of $110,000 for pain and suffering was inadequate.   As his actions were commenced prior to the effective date of CPLR 5501(c) and the trial was commenced prior to August 1, 1988, the jury's assessment of damages must be reviewed under the standard of whether the verdict is so excessive or inadequate that it shocks the conscience of the court (see, Rivera v. City of New York, 160 A.D.2d 985, 554 N.Y.S.2d 706;  Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 428 N.Y.S.2d 535).   In view of the nature of Policastro's injuries, his lengthy rehabilitation and the permanency of the injuries to his leg and heart, we find that the verdict was inadequate to the extent indicated.   We find that the verdict for loss of past earnings is excessive to the extent indicated.
 [8][9] J. Wayne Keelty was awarded separate damages of $1,000,000 for pain and suffering and $1,000,000 for loss of enjoyment of life.   The court erred in charging the jury that these are *854 separate and distinct elements of damages (see, McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372;   Nussbaum v. Gibstein, 73 N.Y.2d 912, 539 N.Y.S.2d 289, 536 N.E.2d 618,supra;  Venable v. New York City Transit Authority, 165 A.D.2d 871, 560 N.Y.S.2d 341, as the suffering attributable to the limitation of life's activities is a factor to be considered in awarding damages for pain and suffering (see, McDougald v. Garber, supra ).   The award for loss of enjoyment of life must be vacated.   With respect to the issue of Keelty's pain and suffering, his injuries included a brain injury, which required him to undergo extensive rehabilitation and which resulted in some permanent paralysis, a broken leg which resulted in a limp, and a damaged eye muscle which resulted in double vision.   In view of the nature of his injuries and their permanency, we find that an award of $1,000,000 for pain and suffering is appropriate.
 [10] Finally, in instructing the jury on Keelty's claim for loss of future earnings, the court stated that his work life expectancy was 28 years, which was his life expectancy, not his work life expectancy.   At another point during the trial, the trial court found that Keelty's work life expectancy was only 17 years, based upon the fact that Keelty was past his forty-seventh birthday at the time of the trial, but, during its instructions to the jury, apparently confused work life expectancy and life expectancy.   It appears that the jury calculated Keelty's loss of future earnings as $15,000 a year.   Thus, a new trial is granted unless the plaintiff stipulates to a reduction of the award for loss of future earnings to the principal amount of $255,000, which represents a loss of $15,000 a year for a work life expectancy of 17 years.

 BROWN, J.P., and KUNZEMAN and KOOPER, JJ., concur.

 **789 LAWRENCE, J., concurs in part and dissents in part, and votes to grant the Incorporated Village of Lake Grove a new trial, with the following memorandum:
 I concur with my colleagues with regard to all the issues raised on these appeals, except the claims with regard to the liability of the defendant Incorporated Village of Lake Grove.
 As noted by the majority, the general claim against the Village was that it had failed to maintain in a safe condition Stony Brook Road and Pond Path. There was extensive testimony presented by both lay and expert witnesses with regard to three theories of liability against the Village:  (a) the alleged improper markings and lack of markings on the roadways, (b) the alleged improper signs and lack of signs on the roadways, and (3) an alleged defect in the roadways, which purportedly might cause a vehicle to slide to the wrong side of Pond Path, when it entered that road from Stony Brook Road.
 *855 At the conclusion of all of the testimony, the trial court, in effect, dismissed two theories of liability as against the Village.   Specifically it indicated that in its final charge to the jury, it would instruct them that the alleged misplacement or lack of markings or signs on the roadways were not proximate causes of the accident as a matter of law and the jury was not to consider those claims, relying on Atkinson v. County of Oneida, 59 N.Y.2d 840, 464 N.Y.S.2d 747, 451 N.E.2d 494.   In addition, the trial court indicated that it would sustain an objection to any summation comments that those factors were a proximate cause of the accident.
 In compliance with the trial court's ruling, none of the attorneys made any reference in their summations to the alleged misplacement or lack of markings or signs on the roadways during their comments concerning the proximate causes of the accident.   After summations, the counsel for the Village formally requested the trial court to instruct the jury in its final charge not to consider the alleged misplacement or lack of markings or signs on the roadways.   Despite its earlier ruling, the trial court denied the request, noting that it would simply not mention the subject.   During its charge to the jury, the trial court did not limit the jury to a consideration of the alleged defect in the roadways which might cause a vehicle to slide.   Rather, the jury was specifically instructed that they could consider all of the testimony they had heard, and that certain expert witnesses had given their opinions "with respect to how the accident occurred and what various factors contributed to it".   Thus, the trial court's instructions clearly permitted the jury to consider the alleged misplacement or lack of markings or signs on the roadways.
 While there may have been sufficient evidence upon which the jury could find the Village liable based on the alleged defect in the roadways, the jury did not indicate the basis for its liability verdict.   Therefore, I cannot conclude that the Village, which was found 5% at fault in the happening of the accident, was not prejudiced by the trial court's rulings (see, Wirth v. De Vito, 74 A.D.2d 827, 425 N.Y.S.2d 179;  see also, Cumbo v. Valente, 118 A.D.2d 679, 500 N.Y.S.2d 30).   Specifically, in light of the trial court's initial ruling concerning its charge to the jury, the counsel for the Village reasonably refrained from commenting in his summation on the extensive testimony concerning the alleged misplacement or lack of markings or signs on the roadways.   Further, the trial court's subsequent refusal to specifically instruct the jury as requested by counsel for the Village *856 resulted in a confusing charge which failed to fully inform the jurors how they were to apply the facts to the law.
 Accordingly, under these circumstances, I find that the Village is entitled to a new trial on the issue of its liability and if necessary, a new determination on the apportionment of fault.
567 N.Y.S.2d 784, 171 A.D.2d 849
END OF DOCUMENT