This was an action involving a 12 year old infant plaintiff bicyclist who contended that as he was riding with traffic on Routes 1 & 9 in Jersey City at 9:20 p.m. on Father’s Day in very close proximity to the curb in this area, which did not contain a shoulder, he was struck by the defendant truck driver who failed to make adequate observations. The plaintiff contended that as a result of being stuck, he suffered a severe brachial plexus injury which will permanently leave him with extensive paralysis and virtually the complete loss of use of his left, non-dominant arm. The plaintiff maintained that the area where he was struck was well lit and that the defendant should have been able to avoid the accident if he had been paying adequate attention.
The defendant denied that the plaintiff’s version of the accident was accurate, contending that he was suddenly confronted with the presence of the plaintiff, whom he maintained was stopped on his bike while straddling the left and right northbound lanes under an overpass, leaving the site of the accident very dark. The plaintiff vehemently denied that this defense position should be accepted. The plaintiff would have pointed out that in his deposition, the defendant had indicated that he had not moved his vehicle between the time of the collision and the time at which EMS personnel and the investigating police officer arrived. The plaintiff contended that EMS records and the police report each supported the plaintiff’s version as the the area where the accident occurred. The underpass described by the defendant was approximately 1/4 mile from the accident site as described by the plaintiff.
The plaintiff would have presented an accident reconstruction expert who would have maintained that had the defendant been paying adequate attention and traveling within the speed limit, he should have been able to avoid the accident at either location. The plaintiff would have also requested an instruction that the jury should consider the claims of comparative negligence on the basis of the actions of a reasonable 12 year old under the circumstances.
The plaintiff, who is now age 15, contended that he sustained a severe brachial plexus injury to his left, non-dominant shoulder. The plaintiff’s pediatric orthopedist contended that the injury is permanent in nature and that the extensive paralysis will leave the plaintiff with virtually no use of this arm. The pediatric orthopedist also related that the current 1/2 inch arm length discrepancy will continue to heighten as the child continues to grow. The physician would have also contended that in view of the severe nature of the arm injury, the plaintiff will probably be precluded from working in any physical capacity and that the infant plaintiff’s talents and inclinations gear him towards physical labor. The plaintiff would have contended that it is clear, therefore, that he faces a very significant future loss of earning capacity.
The defendant had $2,000,000 in coverage. The case settled prior to trial for $1,500,000. The settlement proceeds were placed in a structure with an ultimate payout of $6,500,000.
REFERENCE
C.L. vs. Silverman. Docket no.: HUD-L-453-02; April, 2004.
Attorney for plaintiff: Charles A. Cerussi of Red Bank and Manhattan.
COMMENTARY:
The defendant had denied that the plaintiff’s version that he was struck while riding his bike with traffic and next to the curb should be accepted, arguing that the infant plaintiff had, in fact, stopped under an overpass while straddling the left and right northbound lanes, preventing the defendant from observing him in time to avoid the accident. The plaintiff successfully countered this position by stressing that the records reflected that the police and EMS personnel arrived. Additionally, the plaintiff would have argued that the actions of the infant plaintiff should be evaluated against those of a reasonable 12 year old upon any consideration by the jury of comparative negligence. Finally, the accident had occurred at 9:30 p.m. on Father’s Day and the plaintiff would have made a motion in limine for an order precluding any defense arguments which might attribute any impropriety on the part of the parents in permitting the child to ride his bike at this time to that of the infant plaintiff.
Regarding damages, the plaintiff emphasized that he will be required to live with the virtual complete loss of use of his non-dominant arm for the remainder of his life. Additionally, the plaintiff, who maintains that he faces a very substantial diminution in earning capacity, would have proceeded without a vocational expert. In this regard, the plaintiff would have argued that in view of the severe nature of the injuries and the manner in which they would preclude the plaintiff from working in any physical field, as testified to by his expert pediatric orthopedist, that under Lesniak vs. County of Bergen, expert vocational testimony is not necessary in the case of a minor whose physician testifies as to long lasting injuries which would be expected to create work disabilities.
