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Essex County, NJ

This was an action in which a tire of the defendant driver’s car detached and flew across to the other side of the Garden State Parkway as the decedent and his wife, who were from Connecticut, were traveling through New Jersey. The 75-year-old decedent driver was killed and his passenger/wife, who sustained minor physical injuries only, made an emotional distress claim under Portee vs. Jaffee.

The evidence disclosed that when the defendant car owner realized that he needed new brakes and rotors, on which the brakes clamp down in order to function, he purchased them online and arranged for the defendant automobile mechanic to install them. The defendant automobile owner related that over the next few days, he heard a strange sound and felt unusual vibrations from one of the wheels and brought it to the defendant dealership. The defendant dealership’s mechanic took the vehicle for a test ride and determined that the constant velocity joint, which keeps the side of the axle at an equal height even if the contours of the roadway elevate or lower the other side, needed replacement. The dealership’s mechanic made such a determination without removing the wheel and conducting a visual inspection.

The constant velocity joint was not in stock and had to be ordered. The mechanic had placed the keys on a board reflecting that it should not be given back to the owner until the repairs were made because of safety reasons. The worker dealing directly with customers did, however, return the keys to the defendant owner. The accident occurred a few days later as the owner was returning to the dealership to have the constant velocity joint replaced.

The plaintiff maintained that the difficulties were with the manner in which the brakes and rotor were attached and that had the dealership’s mechanic conducted a visual inspection, he would have ascertained the difficulties and rectified them. The plaintiff’s accident reconstruction expert would have related that when installing the brakes and rotor, it is essential to place the screws attaching the rotor to the hub in a slightly recessed manner to enable the tire to be flush with the wheel when attached. The plaintiff contended that if the tire is not flush, there will be insufficient torque to properly keep the lug nuts tight, irrespective of the manner in which the lug nuts are applied.

The initial mechanic maintained that because the plaintiff was such a car enthusiast, he insisted on removing and replacing the tire by using a wrench to prevent potential scratches, rather than permitting this mechanic to use an air gun. The defendant owner denied this testimony was accurate and contended that the initial mechanic used an air gun to tighten the lug nuts. The plaintiff’s accident reconstruction expert would have maintained that irrespective of which version between the defendant owner and initial mechanic was accurate, the initial mechanic’s failure to properly place the screws in such a manner that they would be sufficiently recessed to enable the lug nuts to remain flush, caused the failure.

The plaintiff’s expert would have related that indentations on the inner side of the tire were made by the protruding screws and that there would be insufficient torque to adequately tighten the lug nuts even if an air gun had been used. The plaintiff would have contended that this evidence reflected that the initial mechanic was clearly negligent. The plaintiff would have also argued that by continuing to drive the vehicle despite the noise and vibrations, the owner was also clearly negligent.

The plaintiff also maintained that the automobile dealership’s negligence was particularly extensive. The plaintiff maintained that if the dealership’s mechanic had removed the wheel, he would have realized that the rotor screws had not been properly applied and could have rectified the situation, rather than misdiagnosing the difficulties as involving the constant velocity joint. The plaintiff also maintained that by giving the keys back to the owner before the mechanical difficulties were corrected, the dealership was obviously negligent.

The wife related that as she felt the impact from overhead and the car lost control, she looked at her husband and realized that he was not conscious. The decedent was rushed to the hospital and died from head trauma several hours later without regaining consciousness. The decedent and his wife were retired. The plaintiff made an emotional distress Portee claim on behalf of the wife, and contended that she often thinks about the traumatic event. The wife did not undergo psychotherapy and had one session with her family priest.

The couple had three adult children and seven grandchildren. The plaintiff contended that the family was very close knit and that the loss of guidance and advice under Green/Bitner was extensive. The plaintiff’s economist would have projected losses of approximately $________.The case settled prior to trial for $________, including $________ from the defendant car dealership, $________ from the initial mechanic and $________ (policy limit) from the defendant car owner/driver.

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