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ARTICLE ID 200085

$________ GROSS REDUCED BY 23% COMPARATIVE NEGLIGENCE – CONTRACTOR NEGLIGENCE – WRONGFUL DEATH – CONSTRUCTION – MOTOR VEHICLE – DEFENDANT HIGHWAY CONTRACTOR NEGLIGENTLY PLACES STEEL POSTS AND BOLTS ONTO WALL OF BRIDGE BARRIER SYSTEM FIVE WEEKS BEFORE BRIDGE RAILS WERE READY FOR INSTALLATION – DECEDENT MOTORCYCLIST STRIKES A BOLT AND A POST, SUFFERING ARM AMPUTATION BEFORE GOING OVER THE BARRIER AND FALLING APPROXIMATELY 20 FEET – 26-YEAR-OLD DECEDENT CONTENDS APPROXIMATELY 25 MINUTES CONSCIOUS PAIN AND SUFFERING – UNMARRIED DECEDENT SURVIVED BY MINOR CHILD AND PARENT – HIGH/LOW AGREEMENT.

Passaic County, NJ

This case involved a defendant state highway contractor that was in the course of replacing the single-rail element of a bridge barrier system on a state highway. The single steel rail was to be bolted to steel posts which, in turn, were bolted to the top of the barrier wall. The rails were made of tubular steel, which were required to be galvanized by a separate entity. The galvanizing process, on average, would take two weeks. The bolts supporting the posts were fixed to the top of the barrier wall with epoxy, which requires one to two days to properly cure. The rails would then be affixed upon the posts. The plaintiff contended that the defendant contractor acted negligently by removing the preexisting rails and posts, and replacing them with only bolts and posts on the barrier wall five weeks before the bridge rail was to be installed, rendering the area dangerous due to the lack of the bridge rail and the presence of the bolts and posts.

The plaintiff also named the State as a defendant, contending that it acted in a palpably unreasonable manner in failing to supervise the contractor and in failing to conduct required scheduled inspections of the area. The male 26-year-old decedent motorcyclist suffered a severe linear leg laceration to his right leg because of contact with a bolt, and amputation of the left arm at the shoulder due to contact with a post. He vaulted over the barrier wall and then struck a light pole before falling approximately 20 feet to the ground below. The plaintiff maintained that the decedent was conscious, communicative and in great pain for approximately 25 minutes. The decedent resided with his father. The unmarried decedent was survived by a minor child son, 3 years old at the time of the death.

The evidence disclosed that because the existing bridge rails throughout the state were made of aluminum, they were prone to theft. The State of New Jersey entered into a contract to replace missing rail sections throughout the State, and in some places to replace aluminum with steel rail systems instead. The defendant contracted to replace the section on the bridge situated at milepost 12.4 on Route 21 in Passaic. The plaintiff contended that since the new steel rail system situated on top of the barrier wall could not be fully installed until the rails were galvanized and in the contractor’s control, the defendant contractor should have not removed the existing rail and installed the new steel posts and bolts until the rails could be timely affixed.

The defendant contractor denied that the presence of the single rail would have changed the outcome, and contended that the cause of the incident was the negligence of the decedent, whom defendant alleged was driving at an excessive speed. The roadway on which the decedent was traveling contained two travel lanes, with third lane created by an entrance ramp (obviating the need for motorists to merge near the point that decedent lost control of his motorcycle). The defendant presented a witness who was entering the highway, and who initially estimated the decedent’s speed at “________+” MPH. At trial, the witness conceded that his estimate may have been inaccurate. The plaintiff’s accident reconstruction expert contended that the physical evidence reflected that the decedent was probably traveling at approximately 61 mph when he contacted the curb and barrier wall.

The roadway had a 55 mph speed limit. It was undisputed that there were no skid marks or other physical evidence of sudden breaking that would be expected if the decedent had realized he was about to crash into the barrier and attempted to stop.

The plaintiff’s experts contended that the motorcycle was deflected back towards the roadway by the barrier wall, and that the decedent would have been deflected similarly by the railing had it been present. Instead, the decedent was probably ejected from the right side of the motorcycle, and his momentum caused him to contact the bolt, then the post, and then to vault over the barrier wall.

The defendant’s biomechanical engineer denied that this contention was accurate, and maintained instead that it was probable that the decedent was ejected over the handle bars and several inches above where the railing would have been situated. The plaintiff contended that the pattern of injuries and the relative absence of damage to the motorcycle refuted this defense position. The evidence disclosed that the decedent had purchased the ________ cc motorcycle some eight months earlier, and had driven it approximately ________ miles over that time. The motorcycle was also modified with a special muffler that made it louder.

The decedent traveled off the bridge and landed approximately 20 feet below. The evidence presented by the plaintiff, which included the testimony of responding police officers and the report of the EMT personnel, described that the decedent was conscious, talking, alert and in great pain and suffering for approximately 25 minutes. The decedent worked for a company that maintained the glass on commercial buildings in New York City. He was survived by a son, 3.5 years old at the time of the death. He and the child’s mother were not married. The decedent resided with his father, and helped with financial contributions and tasks around the home. The jury found the defendant contractor 77% negligent, the decedent 23% negligent, and rendered a gross award of $________. The jury also exonerated the Defendant State. The parties had entered into a $________/$________ high/low agreement, and the case therefore shall be settled for $________.

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