Larry Alkenburgh, as f/n/g of Dale Alkenburgh v. Charles Glessing

Larry Alkenburgh, as f/n/g of Dale Alkenburgh v. Charles Glessing

CLOSED HEAD INJURIES – COMA

Montgomery, NY

$1,390,411, reduced to $277,671.20 for 80% comparative negligence of Pltf. (6/0).

$277,671.20

XIII/21-17 MOTOR VEHICLE INFANT PEDESTRIAN EMERGENCY DOCTRINE CLOSED HEAD INJURIES COMA CONFUSION OVER JURY INSTRUCTIONS RESULTS IN DOUBLE REDUCTION OF VERDICT FOR COMPARATIVE NEGLIGENCE

Larry Alkenburgh, as f/n/g of Dale Alkenburgh v. Charles Glessing 671/91 3-week trial Verdict 6/9/95 Judge Robert P. Best, Montgomery Supreme

VERDICT: $1,390,411, reduced to $277,671.20 for 80% comparative negligence of Pltf. (6/0). Breakdown: $25,000 for past pain and suffering ; $140,411 for past medical expenses; $300,000 for future pain and suffering; $650,000 for future impairment of earning capacity; $225,000 for future physical therapy; $50,000 for future medical supervision. Jury: 3 male, 3 female.

Pltf. Atty: Daniel R. Santola of Powers & Santola, Albany

Deft. Atty: Thomas J. Pronti of Moran & Pronti, Clifton Park

Facts: The infant Pltf., 9 years old at the time of the accident, ran out into the street in front of his home on Rte. 5 in St. Johnville on 4/24/90 at approximately 5:30 PM, and was hit by a car owned and operated by Deft. Glessing. Pltf. contended that Deft. had time to see him and avoid the accident. Pltf.’s accident reconstruction expert testified that Deft. had an adequate sight distance, given his speed. He also testified that Deft. was within the speed limit. Pltf. contended that Deft. was looking for traffic approaching the intersection and was not paying attention to the road in front of him.

Deft. presented two eyewitnesses, one positioned ahead of the accident scene, and one after the scene. Each witness testified that Pltf. ran out into traffic almost directly in front of Deft., and that Deft. had no time to react. The court charged the jury with the emergency doctrine.

Injuries: closed head injuries. Pltf. was in a coma for a week. He was hospitalized for 17 days and was then sent to a head trauma center until August 1990. He was allowed to enter fifth grade, but Pltf. is making slower progress than his classmates. Pltf. noted that his grades are lower now than they had been before the accident, and that he performs poorly on standardized tests. Pltf.’s expert testified that because Pltf. will probably not be able to complete or even enter college, he will be forced to take lower paying jobs. He claimed that Pltf. may be limited to minimum wage positions for the rest of his life. Deft.’s expert testified that Pltf. is as intelligent now as he was before the accident.

Note: No mention was made in the charge that the jury should not reduce line items for comparative negligence. The jury found that Deft. was negligent, that this negligence was the proximate cause of Pltf.’s injuries, but that Pltf. was also negligent and his negligence was also a proximate cause of his injuries. The jury allocated 20% negligence against Deft. and 80% comparative negligence against Pltf. The jury was polled and discharged by the court, and the clerk then entered the judgment. About 15 minutes later, the jury appeared at the office of the jury commissioner to inform him that there had been a mistake. The jury claimed that they had already reached a figure that represented the deductions for comparative negligence. The $1,390,000 was the final sum, already accounting for Pltf.’s negligence. The jury was then given a new verdict sheet and was told not to reduce the figure for comparative negligence, but they returned a second verdict for $1,390,000. Demonstrative evidence: computer animated accident reconstruction. No offer; demand: $1,000,000. Jury deliberation: 6? hours. Carrier: Continental. Pltf. Experts: Wayne McCracken, accident reconstruction; Albany; Dr. Maria Lefrak, neuropsychiatrist, Albany; Dr. John Fortune, surgeon, Albany; Dr. Edmond Provder, vocational rehabilitation, Manhattan. Deft. Expert: Dr. Robert McCaffrey, neuropsychiatrist, Albany.