Carlton O’Brien, as of Kerwin O’Brien v. City of New York and James Williams

Carlton O’Brien, as of Kerwin O’Brien v. City of New York and James Williams

BRAIN DAMAGE AND MULTIPLE FRACTURES

Queens, NY

$39,333,000, reduced to $37,760,680 for 4% comparative negligence of Pltf. (6/0 on liability; 5/1 on damages). Remaining liability: City 80%; Williams 16% negligent

$37,760,680.00

XI/32-1 MOTOR VEHICLE PEDESTRIAN ROAD DEFECT INADEQUATE TRAFFIC CONTROLS 12-YEAR-OLD BOY SUFFERS SEVERE BRAIN DAMAGE AND MULTIPLE FRACTURES AND DEFORMITIES

Carlton O’Brien, as f/n/g of Kerwin O’Brien v. City of New York and James Williams 7502/89 3-week trial Liability verdict 12/30/93 Damages verdict 1/7/94 Judge Arthur W. Lonschein, Queens Supreme

VERDICT: $39,333,000, reduced to $37,760,680 for 4% comparative negligence of Pltf. (6/0 on liability; 5/1 on damages). Remaining liability: City 80%; Williams 16% negligent. Breakdown: $500,000 for past medical expenses; $500,000 for past pain and suffering; $10,407,000 for future therapy; $333,500 for future medical expenses; $295,000 for orthotics; $280,000 for therapeutic aides; $227,500 for home furnishings; $ 12,050,000 for full-time medical care; $4,750,000 for lost earning capacity; $8,800,000 for future pain and suffering; $5,200 for loss of services; $374,400 for positioning needs; $717,000 for transportation; $93, 000 for home renovations. Jury: 5 male, 1 female.

A post-trial motion is pending. This case will be reproduced in its entirety, along with the post-trial decision when it is rendered.

Pltf. Atty: Alan M. Shapey of Harry H. Lipsig & Partners, Manhattan

Deft. Atty: Joshua D. Pollack, Asst. Corp. Counsel, Manhattan,

Attilio G. Marangione of Rossano, Mose, Hirschhorn, & Corleto, Garden City, for Williams

Facts: Pltf. Kerwin, 12 years of age at the time of the accident, was struck by a vehicle driven by Deft. Williams (16% liable) on 11/17/88 at approximately 4:30 PM as he crossed the intersection of Bedell and 133rd Sts. in Jamaica. Pltf. contended that Williams was driving 42 mph in a 30-mph zone. He also contended that the intersection did not have traffic control devices due to the negligence of Deft. City (80% liable).

Deft. Williams claimed that Pltf. darted out from behind a southbound vehicle and ran into the side of his car. Deft. noted that there was damage to the side of his vehicle where he claimed Pltf. ran into it. Pltf.’s expert contended that the displacement of Pltf.’s right hip indicated that he was struck by the front of Deft. Williams’ car. Deft. contended that he did not see the child until he was only about 3 feet away. Pltf. contended that the infant had come from the opposite side of the street, and had crossed over 30 feet of open space before being struck by Deft. Pltf. noted that Deft. was rushing home with medication for his ill son, and may have been distracted by concern for his son at the time of the accident.

Against the City, Pltf. contended that the intersection did not have traffic control devices even though the community had requested such devices 13 months before the accident. The accident site was located next to the Rochdale Village apartment complex, and Pltf. presented evidence of requests for a traffic light from the developers of the apartment complex, its residents, managers, and the local community board district manager, an employee of the City. Pltf. claimed that although the City anticipated completion of its traffic study by April 1988, the study was not completed until several weeks after the accident. The report stated that a traffic light was needed at the intersection. The light itself was not installed until June 1990. The Highway Safety Officer of the 113th Precinct testified as a fact witness that he performed studies of his own and determined that the intersection needed a traffic light. Deft. contended that the officer’s tests were irrelevant because they did not meet City guidelines. Pltf. contended that Deft. City had adequate information by May 1988 and could have made the decision to install the light at that time.

Pltf.’s experts testified that if Deft. had analyzed the information it gathered in the months before the accident, then it would have been able to determine that the area needed a traffic light. Pltf.’s experts further testified that Deft. should have installed traffic control signs to provide a measure of safety prior to the installation of the traffic lights.

Deft.’s expert testified that the collected data did not indicate a need for traffic signals. Deft. contended that even if the study had been completed sooner, it would have taken 16-22 months before the light could be installed due to a backlog of requests and a shortage of manpower. It further testified that a traffic study has three stages: first, an inspector must visit the site; then he must examine police accident reports for the site, and finally; he must take a cable count for 3-4 days to determine the amount of traffic over the site. Deft.’s engineers testified that there are an average of 3,000 requests per year for traffic studies just for Queens County, and each one has to be investigated in chronological order. They noted that there were 234 traffic studies under way in Queens at the time of the accident, and Pltf. never established where the instant study was located in reference to the rest. Pltf. further claimed that if Deft.’s agents knew that the traffic light would take so long to install, then they should have erected traffic control signs in the interim.

Injuries: severe brain damage with right side paralysis; crushed femur; crushed acetabulum; partial blindness in the right eye. Pltf. was in a coma for several months. His expert testified that he was deprived of oxygen for 10-30 minutes after the accident. The expert also testified that all of the bones on the right side of Pltf.’s body were bent inward. He testified that Pltf. will require full-time custodial care for the rest of his life. Pltf. is confined to a wheelchair. Note: The court ordered Pltf. to be excluded from the courtroom and its vicinity during the liability trial as his appearance would evoke sympathy to the point of denying Defts. a fair trial. Demonstrative evidence: photographs of the accident scene; police accident reports; highway safety reports. Pltf. was also produced to show his cognitive impairments. Offer: $300,000; demand: $10,000,000. Jury deliberation: 4 hours on liability; 5 hours on damages. Carrier: Geico for Williams. Pltf. Experts: Stephen Coulon, accident reconstruction, Bronx; Nicholas Bellizzi, transportation and traffic engineer, Holmdel, New Jersey; Dr. Gary Korenman, neurologist, Manhattan; Edmond Provder, vocational rehabilitation, Manhattan; Les Seplaki, Ph.D., economist, New Jersey. Deft. Experts: William Hirsch, Queens Borough Engineer, New York City Dept. of Transportation; John Tipaldo, Queens Borough Engineer, New York City Dept. of Transportation.