$________ GROSS - PLAINTIFF INITIALLY STRUCKAFTER STOPPING ON HIGHWAY TO AVOID STRIKING SETTLING DEFENDANT DRIVER WHO HAD STOPPED IN LEFT LANE OF HIGHWAY AFTER LOSING CONTROL OF HIS VEHICLE - A SECOND FOLLOWING DRIVER STRIKING PLAINTIFF IS EXONERATED ON PROXIMATE CAUSE - CLOSED HEAD INJURY - COGNITIVE DEFICIT.

Kings County

In this action, the male plaintiff driver contended that the initial defendant traveled around a curve on a highway at an excessive rate of speed, lost control, struck an overpass pillar, and came to rest a short distance from the end of the curve, facing on-coming traffic. The plaintiff maintained that although he was able to stop at least two car lengths away from this vehicle after traveling out of the curve, the second co-defendant proceeded around the curve too rapidly and failed to make adequate observations, striking him in the rear. The plaintiff further contended that the final defendant, who then came upon the scene, also failed to avoid the plaintiff, impacting with him p 7 3 a second time. The initial defendant, who lost control and stopped facing on-coming traffic, settled prior to trial. The plaintiff, in his mid-50’s, contended that he suffered a closed head injury which caused minimal frontal brain damage and extensive difficulties with memory and concentration.

The plaintiff had no memory of the accident. The plaintiff argued that the proofs reflected that the plaintiff was able to stop at least two car lengths prior to striking the stopped vehicle. The initially striking defendant contended that she was suddenly confronted with the plaintiff’s presence as she traveled out of the blind curve and could not have avoided the accident.

The plaintiff’s accident reconstruction expert maintained that the view of the area in which the plaintiff was stopped would not be obstructed as a driver traveled around the curve. This defendant denied that she could observe the plaintiff’s vehicle.

The plaintiff countered through a series of photographs from a driver’s perspective which the plaintiff maintained supported his position that the curve was such that observations of the road ahead could be made as a driver was traveling through it.

The plaintiff also utilized a large model of the roadway and scale model cars to support his argument that the plaintiff was stopped a relatively significant distance from the curve. The plaintiff also argued that the jury should consider that although this defendant had claimed that it was raining at the time, the weather records did not support this position. This defendant countered that all other witnesses recalled that it was, in fact, raining. The plaintiff argued that if it was raining, the defendant should have been proceeding with greater care and argued that if she had been doing so, she could have avoided the accident.

The plaintiff contended that the third defendant failed to make adequate observations, striking the plaintiff’s car a second time. This defendant maintained that as he traveled out of the curve and attempted to proceed to the middle lane and pass the accident scene, which was in he left lane, the plaintiff suddenly moved his car to the middle lane, rendering the accident unavoidable. The plaintiff had no recollection of the accident or its immediate aftermath and could not directly contradict this testimony. The plaintiff’s accident reconstruction expert contended, however, that the damage to the plaintiff’s car reflected that it was struck at an angle which would be consistent with it being pushed to the right, leaving him partially in the middle lane as a result of the first impact. The plaintiff argued that this defendant had an opportunity to avoid the accident as well. The plaintiff’s expert had indicated, however, that the damage reflected a light impact and this defendant denied that he caused any injury.

The plaintiff contended that he sustained a closed head injury which caused some frontal lobe damage and global memory loss. The plaintiff contended that he had great difficulties and recalling events from the past and problems with concentration. The plaintiff contended that he finds it extremely difficult to perform routine tasks requiring memory.

The plaintiff’s neurologist related that a CAT scan taken approximately one month later reflected small focal points of p 7 3 hemorrhage. The defendant’s neurologist countered that the signs were not present in an earlier CAT scan taken shortly after the accident and denied that the plaintiff’s position that the accident caused such damage should be accepted. The plaintiff’s expert maintained that the injury would take some time before it was evident on the test and that this delay was typical. The plaintiff further contended that a battery of neuropsychological testing supported his position and the defendant maintained that the interpretation of such testing is largely subjective in nature.

The evidence disclosed that the plaintiff was employed as a supervisor for a greeting card company with duties that entailed filling orders for large amounts of cards from retail customers.

The plaintiff related that at times, a customer would order significant numbers of a particular type of card and that there would be an inadequate supply on hand. The plaintiff maintained that he would then recall a lot number of a similar card and substitute that one. The plaintiff, who returned to work five weeks after the accident, contended that he was unable to perform adequately and that initially, his co-workers laughed at him. The plaintiff, who had been a long-time employee, related that ultimately, when the employer realized the reason for the difficulties, they assigned underlings to perform this aspect and that the plaintiff was able to keep his job without a loss of pay. The plaintiff argued that he was able to perform the underlings’ job, that the pay differential was not great, and that because of this factor and his many years of service, the employer retained him.

The plaintiff also related that he is an orthodox Jew. The plaintiff related that he held an honorary post in the Synagogue known as a "Gabbi," which entailed calling members to the dais during Torah readings, which is an honor. The plaintiff contended that it was important to choose different people at different times and essential that he recall the approximate order in which members were given such an honor. The plaintiff also related that a portion of the duties involved recalling the names of the fathers of the members called to the dais for prayer purposes.

The plaintiff maintained that after the accident, he had great difficulties and that he was laughed at until the other members realized that the accident was the cause of the difficulties. The plaintiff maintained that he ultimately stepped down from this position. The position was unpaid and the plaintiff argued that the inability to continue affected his enjoyment of life.

The plaintiff additionally related that he was extremely embarrassed at his difficulties with day-to-day activities and loss of memory and that he suffered a severe loss of dignity. The wife related that the plaintiff had severe gaps in his long term memory and that he did not, in fact, recall being a Holocaust survivor. The wife maintained that it had always been important to the plaintiff that the tragedy be recalled. The plaintiff’s neurologist also contended that the history of severe psychological trauma could result in an accentuation of the effects of a closed head trauma in that the plaintiff would be more prone to repress memory.

The defendant argued that the plaintiff’s contentions should be p 7 3 significantly questioned, establishing that in addition to being able to return to work at no loss in pay, he is also able to drive more than 30 miles each way. The plaintiff countered that although he was able to re-learn the route, he becomes lost if he is forced to take a detour when a road is closed. The defendant further contended that the plaintiff probably suffered from Alzheimier’s disease, establishing that several bills were submitted which listed this diagnosis code. The plaintiff’s physician maintained that a typographical error had occurred and denied that the plaintiff suffered from Alzheimer’s. The plaintiff further argued that the jury should consider that the described severe deficits surfaced immediately after the accident and argued that it was clear that it was related The plaintiff also presented his Rabbi, his supervisor, and several co-workers who offered detailed testimony regarding the manner in which the plaintiff became extremely disoriented and exhibited extensive cognitive difficulties after the accident occurred. The witnesses also testified that the plaintiff was the butt of jokes at both his Temple and at work until the other people realized that the accident was the cause of his disorientation. The plaintiff testified that he continues to feel very helpless and suffers a significant loss of dignity.

The jury found the initially striking driver 80% negligent, the settling driver who lost control in front of the plaintiff 20% negligent and found that although the subsequent driver who came upon the scene striking the plaintiff’s car lightly was negligent, there was an absence of proximate cause. They then rendered a gross award of $________ which was subject to a 20% set-off because of the prior settlement. The gross award was allocated as follows: $________ ($________ for past pain and suffering and $________ for future pain and suffering) to the plaintiff and $________ to the wife for loss of services ($________ past and $________ future).