$4,000,000 Settlement for Permanent Injury After Auto Accident
DATE OF SETTLEMENT:
March 8, 2018
COURT AND COUNTY:
Queens County Supreme Court
DESCRIPTION OF PLAINTIFF:
Plaintiff was 42 years old at the time of the accident and was a self-employed barber.
FACTS AND ALLEGATIONS:
At the time of the accident, Plaintiff’s vehicle was legally parked on 108th Street between 62nd Drive and 62nd Road, Forest Hills, New York. He was standing at the back of his vehicle searching for something in his trunk when he was struck by a vehicle being operated by one of the Defendants. Plaintiff made claims of negligence against the Defendant who struck him for failing to operate, manage and control her motor vehicle in a proper, reasonable and safe manner; in failing and neglecting to stop, slow or decrease the speed of her vehicle when approaching the Plaintiff; in failing and neglecting to keep proper, or any, lookout; in failing and neglecting to properly observe the conditions then and there existing in and upon the roadway; in failing and neglecting to give warning of her approach and of impending danger; in failing and neglecting to yield the right of way; in failing and neglecting to properly turn, maneuver, steer or control her motor vehicle so as to avoid striking the Plaintiff.
Plaintiff also made claims against the City of New York for negligence in failing to properly design, construct, install and/or maintain said roadway, such that said roadway would be safe for vehicular travel and pedestrians accessing their lawfully parked motor vehicles; in failing to adhere to the regulations and requirements of New York State Department of Transportation and New York City Department of Transportation with regard to the installation of signage on roadways, placement of pavement $4markings, travel and parking lane designations and demarcation of legal parking areas/zones at the subject accident location; in creating and/or causing and/or allowing to be created a dangerous and hazardous condition at the accident location in that they allowed vehicles to legally park in/or in close proximity to a vehicle travel lane at that location; in failing to warn motorists traveling on 108th Street of a legal parking zone that was located within a vehicle travel lane; in creating a hazardous and dangerous condition at the accident location by failing to clearly delineate and demarcate the legal parking area at the aforesaid location by separating it from the travel lanes on 108th Street through the use of pavement markings or any other method so as to alert motorists traveling on 108th Street of the presence of the aforementioned legal parking area.
The City of New York argued that Defendant driver’s actions were the sole proximate cause of the accident in that she rear-ended a parked vehicle and failed to observe that which through the proper use of her senses should have been observed; that Defendant driver should have seen Plaintiff standing in the roadway behind his vehicle, of whom the Defendant driver had an unobstructed view on a clear day for at least 130 feet after she turned onto 108th Street. The City of New York argued that Defendant driver testified that she drove the subject roadway twice a month for 10 years prior to the subject accident and therefore had driven through that area at least 240 times prior to the accident and was highly familiar with the roadway at that location.
The City of New York also argued that there was no prior notice of any alleged dangerous condition at the accident location as there were no prior similar accidents at that location despite the fact that the subject parking area existed since 1977. The City of New York’s expert engineer would have testified that the New York City Department of Transportation followed the guidelines of the American Association of Highway Transportation Officials in their design of the roadway and the subject parking area. The City of New York’s expert engineer also would have argued that the City of New York reasonably exercised its engineering discretion and followed nationally recognized roadway design guidelines in its design of the subject parking area and roadway.
INJURIES/DAMAGES
Plaintiff was confined to New York Hospital of Queens from May 25, 2015 to June 23, 2015, and the Rusk Institute of Rehabilitation Medicine from June 23, 2015 to July 3, 2015. He underwent seven (7) surgical procedures including an above-the-knee amputation of his left leg on May 27, 2015. Plaintiff also suffered a non-displaced fracture of his right distal fibula.
Plaintiff alleged economic damages for lost income due to being permanently disabled from employment and cost of future healthcare related to the injuries sustained in the accident. Plaintiff alleged the need for future visits with a physiatrist, pain management specialist, psychiatrist, physical therapist, prosthetics and medication. At the time of the accident, the Plaintiff was no longer actively treating for his injuries.
Defendants’ expert physiatrist disagreed with the opinion of Plaintiff’s expert physiatrist with regard to the need for certain costs of future healthcare. Defendants’ expert opined that the Plaintiff had no need for any pain medications, no need for visits to a pain management specialist nor any physical therapy or occupational therapy. Defendants’ expert also opined that the Plaintiff will be capable to participate in full-time employment.
Defendants’ expert vocational rehabilitation expert opined that the Plaintiff is capable of carrying out the essential duties and functions of his most recent employment as a barber and owner of a hair salon if he receives a permanent prosthetic device (which the Plaintiff now has) and completes a short course of physical therapy. This expert opined that even if the Plaintiff does not obtain a permanent prosthetic device and physical therapy, he may be found to be unable to return to his former employment but is still otherwise employable on a full-time basis earning a salary equal to or greater that his pre-accident income.
SETTLEMENT AMOUNT:
The parties negotiated a $4,000,000 pre-trial settlement.
ATTORNEYS:
The case was handled by Daniel O’Toole, David Scher and Frederick Aranki.