The plaintiff pickup truck driver, approximately 50, contended that the defendant pickup truck driver negligently failed to stop at a stop sign, causing the collision. The plaintiff’s vehicle rolled over twice and the plaintiff was ejected, coming to rest approximately 20 feet away. The plaintiff was not wearing his seat belt. The plaintiff maintained that he sustained a subarachnoid hemorrhage, a temporal bone fracture, relatively slight cognitive deficits, a scalp laceration, bilateral foot fractures/dislocations that required surgery, an elbow laceration requiring a draining of the left elbow and removal of a foreign body, and which caused cellulitis, and a tear of the ACL in the right knee.
The defendant contended that if the plaintiff had been using the set belt, he would not have been ejected and that any injuries would probably have been much less significant. The plaintiff would have presented an accident reconstruction expert/bio mechanical engineer who would have maintained that the defendant, who had the burden of proof on the issue of mitigation of damages, could not rule out that if the plaintiff had stayed within the vehicle for two complete rolls, the injuries would have been as severe or worse. The expert maintained that the defendant did not differentiate whether the plaintiff’s injuries were due the the ejection of due to his occupant kinematics prior to ejection.
The plaintiff’s expert maintained that the defendant did not adequately explain the manner in which the head injury was due to impacting the door frame, or due to impact outside the vehicle. The plaintiff’s expert also contended that the defendant’s expert did not adequately explain why the bilateral foot fractures could not occur during rollover without ejection by his feet becoming caught in the foot pedals as the floor of the car rolled over. The plaintiff’s expert further concluded, and indicated, that it was very significant that had the plaintiff not been ejected during the rollover, centripetal or outward accelerations, as opposed to centrifugal forces, would have brought his head upward and to the left in contact with the roof. The plaintiff’s expert concluded that…”the first ground impact to the roof about the A-pillar would have likely caused injurious (paralyzing/fatal) head-neck forces.”
The plaintiff required surgeries to his feet because of the fractures/dislocations. The plaintiff maintained that he will suffer permanent pain and difficulties ambulating. The plaintiff also required surgery and the removal of a foreign body from the elbow and suffered cellulitis which substantially resolved. The plaintiff contended that he was left with memory and concentration difficulties, but has not required treatment. The plaintiff further maintained that arthroscopic surgery will probably be required to treat the partial ACL tear. The plaintiff, who worked in a warehouse, has not been able to return to work and contended that he is permanently unemployable.
The defendant had a $100,000 primary policy and $1,100,000 in excess coverage. The case settled prior to trial for $1,100,000 including the policy limits from the primary carrier and $1,100,000 from the carrier providing the excess coverage.
REFERENCE
Plaintiff’s bio-mechanical engineer accident reconstruction expert: Steven Batterman from Cherry Hill, NJ. Plaintiff’s orthopedic surgical expert: Shane Hollawell, M.D. from Freehold, NJ.
A.V. v. S.B, et. al. Docket No. OCN-L-3667-09, 4/1/13
Attorney for plaintiff, Charles A. Cerussi of Cerussi & Gunn, P.C. in Shrewsbury, NJ
COMMENTARY
It was undisputed that the plaintiff, who was ejected from his vehicle after it rolled over twice, was not wearing his seat belt and the defendant had maintained that had the plaintiff been using the device, his injuries would have been much less severe. The plaintiff would have stressed that the defendant had the burden of proof on the issue of whether the use of the device would have reduced the injuries. He would have argued that based upon the detailed conclusions of the plaintiff’s bio mechanical engineer/accident reconstruction expert, that the defendant could not establish that the injuries would have been less severe, and they could well have been fatal, it was clear that defendant’s position should be rejected. In this regard, the plaintiff’s expert discussed the manner in which the plaintiff’s feet would have likely been caught under the pedals, suffering injuries which were at least as severe, and that if he had not been ejected, he may well have struck his head on the A-pillar suffering death or paralysis.
