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Kings County, NY

The unemployed 62-year-old plaintiff, contended that after he crossed a short distance of the roadway in the mid-block area that contained one lane of travel in each direction, he was struck by right front corner of the defendants’ bus.

The plaintiff contended that he suffered left-sided fractures to the hip, ankle foot and toes. The plaintiff, who had pre-existing bilateral avascular necrosis to the hips, contended that he was previously asymptomatic. He also maintained that the trauma caused an aggravation to both hips, that the fracture to the left hip and need for surgical hardware and subsequent removal caused the need for a future left hip replacement, which was scheduled as of the time of trial. The plaintiff also contended that the altered gait resulted in additional stress on the right hip, which was causally related to a right hip replacement that was performed approximately five years after the collision. Finally, the plaintiff contended that he suffered a closed head trauma and relatively mild cognitive deficits that are permanent in nature.

The plaintiff contended that he saw the bus approach and waited ’a little out’ from the parked cars nearby. He maintained that he then thought he heard his name called and turned to his right back toward the sidewalk, but did not move out into traffic. He indicated that as he was turning back, he felt an impact and woke up on his back with the bus driver over him. The plaintiff asserted that after the bus driver told him not to move and returned to the bus, a friend came over a took his cell phone out of his pocket and attempted to reach his family.

The defendant denied that the plaintiff’s version was accurate. The defendant’s driver, who had 25 years of experience, contended that the plaintiff was walking while speaking on the cell phone and impacted with the side of the bus. The bus driver testified that immediately after the incident, he disembarked the empty bus, saw the plaintiff lying just behind the bus, told him not to move, returned to the bus and radioed the TA. He claimed, consistent with statements written several hours after the accident, that the plaintiff was holding a cell phone in his right hand while lying in the street. The defendant also presented a witness, who worked in the store nearest the accident, who testified that he was outside the store and saw plaintiff hurry into the street with a cell phone at his ear and walk into the side of the bus toward the rear. His boss testified that he was in his parked SUV in front of the store, heard the impact when plaintiff hit his bumper, and thought the bus had hit his car. The defendant contended that he did not see the plaintiff because he walked from between two parked SUVs and denied that he was beyond the parked vehicles and stopped when the impact occurred.

The plaintiff denied that the defendant’s position should be accepted. The defendant pointed out that the plaintiff denied talking on his cell phone, but stated that a friend, who did not testify, came over and removed it from pocket to try to call his family. The plaintiff maintained that the incident occurred several minutes later than claimed by the defendant. The defendant’s investigation reflected that the incident occurred at 2: 15 p.m. and the plaintiff’s cell records showed no call from 2:13p.m. to 2: 21 p.m. The first ________ call was placed at 2:19 p.m. and the first call to the T/A was at 2:22 p.m.

The plaintiff further pointed out that the trauma included a minor head injury and reported loss of consciousness, helped prove that he could not have either held onto a cell phone during the impact or retrieve it in the short time it took the driver to disembark and observe him.

The plaintiff also contended that the purported eyewitnesses were not credible because they were not identified until years after the accident despite the T/A reportedly having canvassed nearby store workers. The plaintiff further pointed out that while the driver claimed the eyewitness refused to give his name at the scene, and the eyewitness denied this. His boss referenced passengers having to change buses, but it was undisputed that the bus was empty.

The plaintiff’s engineer testified that, even if plaintiff walked straight into traffic without stopping, he would have been in front of the driver and visible from the time he left the curb. He also testified that the driver did not leave sufficient clearance on the right side of the 40 ft. long and 8.5 ft wide bus. The plaintiff’s orthopedist indicated that he suffered multiple fractures to left hip, ankle, foot and toes. He testified that surgical hardware was installed in his hip and ankle. He also maintained that the accident was a substantial factor in the need for a right hip replacement and for the scheduled need for a future left-sided hip replacement. The plaintiff testified that he experiences constant pain, can’t walk far or swim at the ocean anymore and often must use a cane.

The defendant maintained that based on plaintiff’s lab results, he was a chronic heavy user of cocaine, likely impaired at the time of the accident and that walking into the side of a bus would be consistent with that impairment. The plaintiff countered that the ambulance and hospital records showed no signs of impairment or withdrawal, despite being admitted for several weeks. Before trial, the trial judge had denied plaintiff’s request for a Frye hearing on whether it was generally accepted that cocaine would affect a pedestrian’s awareness of a bus.

The evidence also revealed that the plaintiff had been diagnosed as HIV positive in ________. He contended that he, nonetheless, appeared to be in general good health, had been active, and there was no testimony that his life expectancy was shortened. The jury found that the defendant was causally negligent and that, although the plaintiff was comparatively negligent, there was an absence of proximate cause. They then awarded $________, including $________ for past pain and suffering and $________ for future pain and suffering over 13 years.

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