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Union County, NJ

This action involved a male plaintiff bicyclist, age in his mid 60s, who contended that the defendant driver failed to make adequate observations before turning left into a shopping center, impacting with the plaintiff, who had proceeded on the wide right shoulder while a line of vehicles were stopped to his left. The plaintiff contended that he suffered a severe head trauma and TBI that left him with very significant cognitive deficits. The plaintiff, who continues to ride with a bicycle club that takes 40-50 mile trips, contended that prior to the incident, he was the group’s "human GPS" who would remember routes and landmarks. The plaintiff maintained that he now become easily confused and often has difficulty remembering what he ate earlier in the day. The plaintiff also suffered a fracture to the right, dominant elbow.

A driver, who was facing the defendant, allegedly signaled to him that it was safe to turn left. The defendant named this driver as a third party defendant and the plaintiff then named this driver as a direct party defendant. The waver maintained that, at most, she had gestured to the left turning driver that she would not block the area of the roadway in which a left turn into the shopping center was made and had not signaled that it was safe to turn. This driver moved for Summary Judgment, arguing that in view of the failure of the defendant driver, who conceded that he could not see more than approximately ten feet down the shoulder when he commenced the left turn, she was entitled to judgment and the Court granted the motion.

The defendant left turning driver maintained that the plaintiff caused the accident by failing to follow the rules of the road and traveling into the intersection from the shoulder. The defendant would have pointed out that New Jersey statutes mandate that a bicycle adhere to motor vehicle rules. The jury also would have been instructed as to a provision in the DOT manual that a bicyclist must stay to the right of cars, and can only pass them on the right when it is safe to do so, keeping adequate distance from them. The plaintiff asserted that he was not negligent in riding on the shoulder and that the cause of the collision was the negligence of the left turning driver, who turned without having an adequate view.

The defendant also contended that the plaintiff was negligent in failing to wear a helmet, and that although bicyclists above the age of 18 are not required by statute to wear a helmet, the jury could determine whether the plaintiff was negligent in failing do so, and if so, reduce any award by the extent to which they found that the use would have minimized the injuries.

The defendant left turning driver pointed out that the plaintiff is an avid bicyclist who belongs to a bicycle club that often takes bike trips together. The defendant also stressed that the plaintiff is a subscriber to magazines on the subject of bicycling. The defendant contended that the plaintiff was well aware of the safety reasons for wearing a helmet generally did not do so, even though other members of the club wore them and the magazines recommended such use because he did not feel comfortable wearing one. The plaintiff did wear a helmet when participating in bicycle races. The defendant asserted that the plaintiff was clearly negligent in failing to wear one at the time of the accident, and contended that the head injuries would have been much less significant if he had done so.

The plaintiff’s accident reconstruction expert concluded that the impact occurred at approximately 13-17 mph and that it was doubtful if a helmet would have been effective at that speed. The defendant’s helmet expert maintained that the helmet would have been effective. The defendant further presented two accident reconstruction experts, one of whom would have also given a human factors analysis.

The plaintiff further maintained that even if the skull fracture would have been avoided, the plaintiff would have, nonetheless, have suffered a severe coup-contra coup type injury and a probable hemorrhage that would have caused the brain damage.

The plaintiff was retired and made no income claims.The defendant left turning driver had $________ in coverage. The case settled prior to trial for $________.

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