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ARTICLE ID 29543

$________ - WRONGFUL DEATH - MUNICIPAL LIABILITY - AUTOMOBILE NEGLIGENCE - NEGLIGENT ROADWAY DESIGN COUPLED WITH EXCESSIVE SPEED OF DEFENDANT MOTORIST RESULTS IN TWO VEHICLE COLLISION IN WHICH EIGHT-YEAR-OLD CHILD IS FATALLY INJURY.

Livingston County, Michigan

This was a death action brought by the parents of an eight-year- old boy who was fatally injured in a two vehicle intersection collision which occurred when the automobile in which the minor decedent was riding as a passenger was struck broadside by the defendant operator’s automobile. The plaintiff brought suit against the defendant operator and the co-defendant host driver alleging negligent operation of their respective vehicles, and against the co-defendant municipality, alleging that the unsafe design and construction of the roadway substantially contributed to the accident.

The subject accident occurred when the host vehicle turned left at the subject intersection across one lane of traffic and was struck broadside by the defendant operator’s vehicle, which the plaintiff contended was traveling in excess of the posted speed limit. The plaintiff presented the investigating officer who testified, based upon the skid marks left on the roadway by the defendant operator’s vehicle, that this defendant was traveling at approximately 50 mph in the 35 mph zone at the time of the collision. The defendant operator initially denied that she was traveling at an excessive rate of speed as she approached the intersection, but at trial testified that she was not aware that she was speeding at the time of the accident.

The plaintiff additionally maintained that the defendant operator’s vehicle was concealed from sight as it approached the intersection because of a deep dip in the road shortly before the intersection in question. The plaintiff asserted that the roadway was unsafe and was not built in accordance with its design specifications because of erroneous calculations noted on a survey. The evidence indicated that approximately four to six weeks prior to the subject incident, the intersection underwent certain improvements made possible by a recently obtained public safety improvement grant. The improvements were undertaken to increase corner sight distances, but according to the plaintiff’s expert, the improvements resulted in a decrease in opposite site distance by the creation of a dip in the roadway. The plaintiff’s expert testified that the improvements violated applicable ASHTO (American Society of Highway and Traffic Organization) standards by decreasing the oncoming sight distance. The plaintiff’s expert further asserted that the intersection was improperly designed for a slower speed and maintained that the 85th percentile speed through the subject intersection was 45 to 50 miles per hour notwithstanding the 35 mph posted speed limit.

The plaintiff presented numerous residents of the area, including a police officer familiar with traffic safety, who testified regarding the inability to see oncoming vehicles at the point where the host vehicle would have had to have made the determination whether or not to proceed with the left turn. The defendant host driver asserted that he could not see the oncoming vehicle upon reaching the intersection because of the alleged road defect. The defendant non-host operator also testified that she could not see the host vehicle because of the road defect. The co- defendant Road Commission denied the existence of a defect in the road and asserted that both drivers were negligent. This defendant’s expert maintained that the roadway and recent improvements complied with applicable specifications. The plaintiff’s expert demonstrated that the design drawings relied upon by the defendant in support of their position that the intersection was safe had misplotted to road plan and that the incorrect survey figures were followed during the recent improvements to the intersection which, according to the plaintiff’s expert, accounted for the roadway design defect.

The plaintiffs claimed damages for loss of society and companionship of their eight-year-old son. There were no out of pocket losses. The plaintiffs additionally offered evidence of conscious pain and suffering on the part of the decedent, based upon the evidence indicating that the decedent was awake for a minute or so prior to his death. The jury exonerated the host driver and apportioned liability to the remaining defendant’s as follows: 60% to the defendant non-host operator and 40% to the defendant Road Commission. The jury returned a verdict of $________. The final award, including interest, costs and fees totaled approximately $________. Plaintiff’s road design expert: Gerald Dresselhouse of Chelsea, Mi. Defendant road commission’s road design expert: Robert Taylor from Michigan State Univ. Olech vs.

Alexander, et al. Case no. 86-________-NI; Judge Latrielle, 8-28-89.

Attorney for plaintiff: Philip Green of Green & Green in Ann Arbor, Mi.; Attorney for defendant road commission: John Highland of Highlane & Currier in Southfield, Mi.; Attorney for defendant non-host operator: Francis McCarroll; Attorney for defendant host driver: Thomas Kizer of the Kizer Law firm in Howell, Mi.

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