The plaintiff driver, 22 at the time, who was making a left turn from a stop sign, contended that the defendant driver, proceeding from her left, was speeding as he rounded a curve and approached the intersection, preventing the plaintiff from seeing him until he commenced the turn. The plaintiff maintained that as a result of the accident, she sustained a fractured femur that required surgery and the implantation of a rod. The plaintiff maintained that although the fracture healed well, he was left with a one inch leg length discrepancy, and that developed RSD in the leg that will permanently cause severe pain and which has required sympathetic nerve block injections and the administration of narcotic pain medication.
The plaintiff related that she stopped at the stop sign, looked both ways and proceeded when she could not observe traffic approaching. The evidence disclosed that a curve in the roadway to the plaintiff’s left and from which direction that defendant was proceeding, would limit the the plaintiff’s line of sight. The plaintiff maintained that as she reached the middle of the roadway with the intent of turning left, the defendant suddenly rounded the curve and was unable to avoid striking her.
The evidence reflected that an advisory sign at the curve recommended a 30 mph speed limit. The plaintiff contended that the failure to follow this recommendation was some evidence of negligence. The plaintiff’s accident reconstruction expert contended that based upon skid marks the defendant rounded the curve at 42 mph. The expert also maintained that the defendant’s speed upon impact was 30 mph, the plaintiff would have completed her turn before the defendant reached the intersection. The defendant denied speeding and contended that the sole cause of the accident was the negligence of the plaintiff who failed to yield before proceeding from the stop sign.
The plaintiff suffered a femur fracture that required an open reduction and the implantation of a rod. The plaintiff maintained that RSD developed shortly after the accident. The plaintiff’s neurologist contended that signs of RSD include color and temperature changes. The physician related that although the condition affects the entire leg, most of the symptoms are near the fracture site. The evidence reflected that there have been no indications that the condition has begun to spread beyond the leg. The plaintiff contended that she will permanently suffer extensive pain and hypersensitivity. The plaintiff has undergone numerous sympathetic nerve block injections which she maintained provided short term relief only and is prescribed narcotic pain medication.
The plaintiff has three children, who were approximately six, four and two at the time of trial, and the plaintiff maintained that she has great difficulties attempting to keep up with her children. The evidence reflected that the plaintiff’s parents live ten minutes away and often help care for the children. The plaintiff was not working outside of the home at the time of the accident and the plaintiff made no income claims.
The jury found the defendant 80% negligent, the plaintiff 20% comparatively negligent and rendered a gross award of $1,850,000, including $700,000 for past pain and suffering and $1,150,000 for future pain and suffering.
REFERENCE
Plaintiff’s accident reconstruction expert: Robert Genna from Commack, NY
T.S. v. Biondo. Index No. 10117/02; Judge Arthur Pitts
Attorney for plaintiff: Charles A. Cerussi of Cerussi & Gunn, P.C. in Shrewsbury, NJ and Garden City, NY
COMMENTARY
The plaintiff was able to assess 80% negligence against the defendant, notwithstanding that the accident occurred when the plaintiff was making a left turn from a a stop sign. The plaintiff effectively emphasized that because of the presence of a curve that was relatively close to the intersection, the plaintiff’s line of sign was limited. The plaintiff’s accident reconstruction expert had conceded that the physical evidence, including skid marks, showed that the defendant rounded this curve while traveling 12 mph faster than the advisory speed limit and explained that based upon the distance from the curve to the intersection, if he had been driving at an appropriate speed, the plaintiff would have already completed the left turn.
The defendant driver had a $100,000 policy. The defendant driver’s car was leased and the old law which would hold the lease company vicariously liable applied. The plaintiff’s prior attorney had not named the lease company and the Statute of Limitations had expired. After the current counsel became involved, he made a motion to name the owner of the vehicle as a defendant under the relation back doctrine, which holds that when the interests of the defendants are united, as is the case here, the Court can permit the amending of the suit and that the naming of the additional party would relate back to the time of the original filing. The Court held, however, that since the case was already on the trial calendar, the granting of this motion would unduly prejudice the leasing company and denied the motion. The Appellate Division affirmed and a legal malpractice action is pending.
