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ARTICLE ID 17103

- AUTO/PEDESTRIAN - DEATH ACTION - CONTENDS PLAINTIFF STRUCK BY PHANTOM VEHICLE AND PROPELLED INTO LANE.

Essex County

The plaintiff contended that the defendant, traveling in a northerly direction, failed to make adequate observations causing him to strike the decedent after she crossed all of the southbound lane and a portion of the northbound lane. The defendant contended that the decedent had been struck by a phantom vehicle which left the scene and that the defendant’s automobile had traveled over the decedent after she was suddenly propelled onto his side of the roadway. The accident occurred at night and the evidence disclosed that a light drizzle was occurring. There were no eyewitnesses to the accident other than the defendant and his passenger wife. The defendant and his wife testified that although they did not see the phantom vehicle strike the decedent, they had noticed the decedent traveling through the air and landing directly in front of them. The defendant also contended through his accident reconstruction expert that the physical evidence supported his version. The defendant maintained that there was no damage to his car except for the underside. The defendant also contended that the decedent’s shoe was found in the other lane 84 feet south of point of impact between the northerly traveling defendant and the decedent. The defendant was also permitted to present, over objection, an independent witness who observed a car traveling in the opposite direction from the defendants when it was approximately 1/4 to 1/2 mile away. The witness testified that the other car was traveling erratically and displayed damage to its front including a non-functioning headlight, and the defendant argued that this car was probably the vehicle which initially struck the decedent. The defendant contended that although this witness did not see the actual impact, she had come upon the scene before the arrival of the police, whom the defendant contended arrived within minutes of the accident, that there were no cross streets between the area the witness observed this phantom vehicle and the accident, and the defendant was permitted to argue, over objection, that the circumstances were such that the jury could infer that this vehicle had initially struck the decedent. The plaintiff’s expert pathologist contended that the injuries, including the crush fractures to the pelvic area causing the death, were consistent with one impact only. The decedent was married and left two adult children. She was employed as an executive secretary earning slightly less than $________ per year. The plaintiff’s economist discussed the lost earnings and the replacement value of household services and the plaintiff also contended that the death occasioned a loss of significant guidance and advice under Green vs. Bitner. The jury found, 5-1 that the defendant was negligent, but that this negligence was not a proximate cause of the decedent’s death. The plaintiff’s post-trial motions were denied and the plaintiff has filed a notice of appeal. Elias vs. Levy. Docket no. W-________-87; Judge Edward F. Neagle, Jr., 2-90. Attorney for plaintiff: Paul J. Hirsh; Attorney for defendant: John P. McGee. Plaintiff’s expert pathologist: Michael Badin from NYC. Plaintiff’s economist: M. Marcus, Ph.D. from Rutgers Univ. Defendant’s accident reconstruction expert: I. Robert Ehrlich, Ph.D. from Teaneck.

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