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ARTICLE ID 46501

$________ - MOTOR VEHICLE NEGLIGENCE - AUTO/PEDESTRIAN COLLISION - PLAINTIFF WALKING IN PARKING LOT OF DEFENDANT SHOPPING CENTER STRUCK BY DRIVER WHO LOST CONTROL IN AREA IN FRONT OF STORE - PREMISES LIABILITY AGAINST SHOPPING CENTER FOR NEGLIGENT DESIGN AND MAINTENANCE OF PARKING LOT - EACH DEFENDANT FOUND 50% LIABLE - SEVERE RIGHT LEG FRACTURES WITH DEGLOVING INJURY - PLAINTIFF SUFFERS ATRIAL FIBRILLATION DURING INITIAL SURGICAL ATTEMPT TO INSTALL SURGICAL HARDWARE NECESSITATES FIVE-DAY DELAY BEFORE COMPLETION OF SURGERY - SUBSEQUENT ATRIAL FIBRILLATION IMMEDIATELY PRIOR TO ANTICIPATED TOTAL KNEE REPLACEMENT SURGERY APPROXIMATELY 1 1/2 YEAR POST-SURGERY CAUSES SURGERY TO BE ABORTED AND RENDERED CONTRAINDICATED - RISK OF LIFE-THREATENING FIBRILLATION RENDERS KNEE CONDITION CHRONIC, REQUIRING CONTINUING MEDICATION - SEVERE, CONTINUING PAIN AND RESTRICTION.

New York County

The female plaintiff, age 77 at the time of the accident, who had relocated to the NY. area from Florida to live with her son following the death of her husband, contended that as she was approaching a store in the defendant shopping center to purchase a winter coat, the defendant driver, traveling on the roadway in front of the store, drove at an excessive rate of speed and lost control, striking her. The plaintiff also named the shopping center as a defendant, contending that the parking lot area was negligently designed in that there was an absence of marked crosswalks or other warning signs, speed bumps or other traffic calming devices, and it was maintained improperly. The plaintiff maintained that she suffered severe, comminuted right leg fractures, comminuted crush fractures to the right tibia plateau, and a partial right-sided degloving injury. The plaintiff contended that because of the onset of atrial fibrillation upon the initial attempt to install surgical hardware, the operation was delayed for five days and was successfully completed thereafter. The plaintiff maintained that because of her knee injuries, a total knee replacement was initially attempted approximately 1 1/2 years after the accident, and that because of another episode of atrial fibrillation, the total knee replacement surgery was aborted and could not be performed. As a result, the plaintiff must take Coumadin for the remainder of her life. The plaintiff further maintained that she must choose between undergoing a potentially life-threatening attempt at a knee replacement, or suffer severe and continuing pain and restriction. The accident was captured by a security camera situated in front of one of the stores in the shopping center.

The plaintiff maintained that as she neared the store and was crossing the portion of the lot adjacent to the sidewalk abutting the store, the defendant drive lost control and struck her, propelling her approximately 20 feet. The plaintiff’s accident reconstruction expert estimated that the defendant driver was proceeding at approximately 30 mph in the 15 mph zone.

The plaintiff contended that the defendant shopping center was liable for an alleged negligent design as well as negligent maintenance of the premises. The plaintiff’s expert engineer maintained, on the negligent design issue, that the defendant should have painted crosswalks by the stores. The plaintiff’s expert also related that the plan that was approved by the town provided for striped markings, which the expert maintained would have had the effect of funneling and slowing cars as they approached the store. The plaintiff contended that the shopping center failed to take this measure, notwithstanding that the plans submitted to the town called for such markings. The plaintiff’s expert further contended that the defendant negligently failed to place speed limit signs or any speed bumps. The plaintiff’s expert related that although certain permanent traffic calming measures would require municipal approval, other portable devices, such as traffic cones, would not require any approval and opined that the defendant shopping center had a duty to use such measures as well.

The plaintiff maintained that two hours before the incident occurred, a shopping center worker had shoveled slush from the sidewalk in front of the store onto the adjacent roadway. This activity was depicted on the video. The plaintiff argued that the video clearly showed that the plaintiff was walking carefully and was struck when the defendant driver lost control and crossed over into the on-coming lane, arguing that there was no evidence of culpable conduct on her part. The court declined to submit the issue of plaintiff comparative negligence to the jury.

The defendant shopping center contended that the lot was appropriately designed, and maintained that the cause of the accident was the negligent operation of the automobile by the defendant driver. The defendant driver denied that she was traveling too rapidly and the defendant’s accident reconstruction expert estimated her speed at less than 16 mph at impact.

The evidence revealed that the plaintiff was propelled approximately 20 feet and narrowly missed being struck by a second vehicle. The plaintiff’s physicians maintained that she sustained extensive fractures to her right leg, including comminuted fractures of the tibial shaft, crush fractures of the lateral tibial plateau and the medial tibial plateau, crush fractures of the fibular had and a degloving injury to a portion of the right leg. The plaintiff also maintained that she sustained a torn medial meniscus to the right knee and nerve damage and parasthesia to the right leg and foot. The evidence disclosed that once the swelling subsided, surgery to install hardware was attempted, but that the surgery had to be cancelled because the plaintiff developed atrial fibrillation. The hardware was successfully installed five days later. The plaintiff contended that the condition is now considered chronic and that she will require blood thinning medication for the remainder of her life to minimize the risk of further events.

Approximately 11/2 years following the accident, the severe pain and difficulties with ambulation caused by a 12 degree valgus deformity and post traumatic arthritis prompted an attempt at a total knee replacement. While the plaintiff was being worked up for the surgery, she suffered another episode of atrial fibrillation, precluding the performance of the surgery at that time. The plaintiff contended that while she was formerly very active, having provided extensive care to her family and volunteering weekly at a soup kitchen, she now has great difficulties ambulating more than 50 feet at a time.

The jury found the defendant driver 50% negligent, the defendant shopping center 50% negligent and awarded the plaintiff $________, including $________ for past pain and suffering, $________ for past medial expenses, $________ for future pain and suffering over nine years and $________ for future medical expenses. The defendants have filed a notice of appeal.

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