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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 defendants
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
decedents 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 plaintiffs 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 plaintiffs 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 decedents death. The
plaintiffs 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. Plaintiffs
expert pathologist: Michael Badin from NYC. Plaintiffs
economist: M. Marcus, Ph.D. from Rutgers Univ. Defendants
accident reconstruction expert: I. Robert Ehrlich, Ph.D. from
Teaneck.
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