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ARTICLE ID 32577

$________ - INTERSECTION COLLISION - FAILURE OF DEFENDANT DRIVER TO STOP AT FLASHING RED LIGHT - LIMITED INSURANCE COVERAGE - BENCH TRIAL - PLAINTIFF PURSUES SEPARATE COVERAGE FOR WRONGFUL DEATH AND SURVIVAL DAMAGES UNDER UIM POLICY.

Camden County

In this action, the plaintiff contended that the defendant pick- up truck driver negligently failed to stop at a blinking red light and crossed into the path of the plaintiff’s decedent’s car, resulting in the decedent striking the side of the pick-up truck at an angle. The plaintiff contended that the 35-year-old male decedent suffered a displaced cervical fracture at C-1 which prevented him from breathing and occasioned his death after several minutes of conscious pain and suffering. The decedent left a widow who was pregnant with the couple’s first child at the time of his death and who subsequently gave birth to a daughter, age five at trial.

The plaintiff presented two independent eyewitnesses who testified that the defendant traveled into the intersection without slowing and was traveling at approximately 50 mph. The witnesses indicated that the defendant passed directly into the decedent’s path and that the decedent was also traveling at approximately 50 mph in the 50 mph zone. The defendant driver indicated that she had no recollection of the incident.

The plaintiff contended that the decedent suffered a displaced cervical fracture at C-1. One of the eyewitnesses, who rushed to the decedent’s car, testified that the decedent was conscious and appeared to be gasping for air for several minutes until losing consciousness. The other witness rushed to the defendant’s vehicle and did not make observations of the decedent after the accident occurred.

The plaintiff’s forensic pathologist contended that the cervical fracture would cause paralysis from the point of the fracture and that the diaphragm would be paralyzed, preventing the decedent from breathing. The expert contended that it was likely that the decedent was conscious for approximately two minutes.

The defendant denied that the plaintiff had established that the decedent experienced conscious pain and suffering, contending that the eyewitness testimony was unreliable, especially since the witness had related that the decedent was squeezing his hand as he was attempting to breathe, stressing that it would be impossible for him to make such a movement. The plaintiff’s expert concurred that the would not have been able to make such movement. The plaintiff contended that while the eyewitness may not have realized that such squeezing constituted a reflexive action only, his testimony of observing the decedent gasping for breath was consistent with the medical testimony and should be accepted as establishing conscious pain and suffering. The plaintiff’s physician further contended that the only other injury observed during the autopsy was a lacerated spleen, that the high cervical fracture would tend to dissipate the force with which the decedent struck his head and that it was clear, therefore, that the decedent must have experienced conscious pain and suffering.

The decedent’s wife was pregnant with the couple’s first child and gave birth to a daughter some months after the accident. The decedent and his wife had owned a restaurant for a brief period and had sold it shortly before the accident. The plaintiff’s vocational expert indicated that in view of the absence of a significant earnings history in the restaurant, it would be more appropriate to base a claim for lost earning capacity on the jobs which the decedent could have obtained with his restaurant experience. The expert contended that the plaintiff could have become a restaurant manager or a cook and in view of evidence that he performed extensive carpentry work on the restaurant, he could have also become a carpenter. The expert offered a range of lost wages of between $________-$________ per year. The plaintiff’s economist discussed approximately $2.1 million in lost income, guidance and advice to the child and the loss of spousal and parental services.

The case was heard as a bench trial. The Court found the defendant ________% negligent and awarded $________ for wrongful death, $________ for conscious pain and suffering and $________ for funeral expenses.

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