Sullivan V. Crete Carrier Corp., No
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Little Red Corvette, Baby You’re Much Too Fast Introductions: Beth Anne Lashuk (Jurca and Lashuk, LLC) Little Red Corvette, Baby You’re Much Too Fast Mehdi Arradizadeh (ATS INC.) June J. Essis (Weber Gallagher Simpson Stapleton Fires & Newby, LLP) Rebecca L. Burroughs (Ward Hocker Thornton, PLLC) Matthew D. Valauri (Wilson Elser Moskowitz Edelman & Dicker LLP) Copy Here *Insert accident reconstruction video from Dropbox* Corvette pulled into road from this Southbound driveway to go south Left turn lane Yaw marks from Corvette AREA OF IMPACT (AOI) Copy Here Yaw marks from Corvette spinning counterclockwise Factual Background – Scenario A • Red Corvette and tractor trailer southbound on road with two lanes of traffic in each direction • Red Corvette makes a left hand turn into southbound lanes, accelerates, and loses control • The tractor trailer proceeding southbound collides with the front-end of the spun-out Red Corvette Other Relevant Facts – Scenario A • The Red Corvette driver was a retired 63 year old man with no dependents and no children • The Red Corvette driver is pronounced dead at the scene • Both drivers – no drugs/alcohol, no phone usage, no speeding • Tractor-trailer driver tried to change lanes to avoid collision • Allegations made that tractor-trailer driver was negligently hired, retained, supervised, and trained Legal Analysis – Comparative Negligence • Corvette driver makes a left hand turn into southbound lanes, accelerates, and loses control • Both drivers – no drugs/alcohol, no phone usage, no speeding • New Jersey; Pennsylvania, Connecticut; Ohio – “Modified” comparative negligence – plaintiff can recover where negligence is not 50%+ (N.J. § Stat. 2A:15-5.1; 42 Pa.C.S. § 7102; Conn. Gen. Stat. §52- 572h; Ohio Rev.Code § 2307.22). In Scenario A, there is a potential argument that the Corvette driver was more than 50% negligent and will be barred Legal Analysis – Comparative Negligence • Corvette driver makes a left hand turn into southbound lanes, accelerates, and loses control • Both drivers – no drugs/alcohol, no phone usage, no speeding • New York; Kentucky • Pure comparative negligence – a plaintiff will not be barred, despite his negligence, from recovering, but his recovery will be diminished by his percentage of fault (N.Y. C.P.L.R. § 1411; KRS 411.182). Legal Analysis – Survivorship and Wrongful Death • Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • New Jersey • Wrongful death – brought by administrator; future financial contributions of decedent (N.J.S.A. 2A:31-4) • Survivorship – brought in shoes of decedent (pain and suffering, etc.) (N.J.S.A. 2A:31-1) • Pennsylvania • Wrongful death – brought by spouse, children, or parents of decedent for damages they directly sustained (42 Pa. Cons. Stat. Ann. § 8301) • Survival action – the estate stands in for the decedent (conscious pain and suffering, lost earnings until date of death, etc.) (42 Pa. Cons. Stat. Ann. § 8302) Legal Analysis – Survivorship and Wrongful Death • Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • Connecticut • Executor or administrator brings claims for injuries resulting in death to recover damages and medical, hospital expenses (Conn. Gen. Stat. §52-555) • Damages are measured by the value to the decedent of his life, rather than pecuniary loss to the dependent/spouse or next of kin, and include conscious pain and suffering, lost future earnings, medical expenses, funeral/burial expenses • New York • Only a personal representative who is survived by distributees may bring damages for wrongful act, neglect, or default that caused the decedent’s death.(CPLR § 215) • The measure of the pecuniary loss is the reasonable expectation of future assistance or support to the survivors had the decedent survived. N.Y. Estates, Powers & Trust §5-4.3 Legal Analysis – Survivorship and Wrongful Death • Corvette driver is pronounced dead at the scene • 63 years old, retired, no children or dependents • Kentucky • Wrongful death is a statutory action brought by a personal representative of the deceased. (KRS 411.130). The measure of damages in wrongful death action is the damage to the estate by destruction of decedent's power to labor and earn money, plus funeral expenses. W. L. Harper Co. v. Slusher, 469 S.W.2d 955, 959 (Ky. 1971). • Personal injury claims survive and may be joined with a wrongful death claim. KRS 411.140; KRS 411.133. Damages include pain and suffering. • Ohio • A claim for wrongful death is brought for the benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death. Ohio Rev. Code § 2125.02(A). The surviving spouse, children and parents may recover compensatory damages for funeral expenses, loss of income, and loss of the decedent’s services and consortium. • Under Ohio Rev. Code § 2305.21, causes of action for injuries to person or property survive the death of the person entitled to bring such an action Comparative Valuation? • Modified vs. Pure Comparative Negligence • Damages Available in Wrongful Death and Survival Actions (63 year old retiree with no dependents) • NJ, PA, KY, OH, CT, NY Factual Background – Scenario B • Red Corvette and tractor trailer southbound on road with two lanes of traffic in each direction • Red Corvette makes a left hand turn into southbound lanes, accelerates, and loses control • The tractor trailer proceeding southbound collides with the front-end of the spun-out Red Corvette Other Relevant Facts – Scenario B • The Red Corvette driver was a married 25 year old man with two children – minors aged 7 and 8 • Coal miner in Eastern Kentucky making $50,000 per year • After the accident, gets a desk job making $32,500 per year • The Red Corvette driver survives but with severe injuries requiring a below the knee amputation and lower back surgery • The Red Corvette driver was going 10mph over speed limit of 55mph, also on his phone • Tractor-trailer driver was going 10mph over speed limit of 55mph • Tractor-trailer driver has a history of at least one failed drug test, but passed his drug test regarding this accident • Tractor-trailer driver has a history of speeding with several reprimands in his personnel file • Corvette driver receives payments from PIP and Blue Cross (who now asserts a lien) Legal Analysis – Collateral Source • Red Corvette driver survives • Red Corvette driver receives PIP and medical payments • New Jersey – Payment of benefits from collateral sources is admissible to deduct from damages (N.J.S.A. § 2A:15-97) • Pennsylvania - Evidence of benefits from a collateral source are not admissible (Hileman v. Pittsburgh & Lake Erie R. Co., 685 A.2d 994 (Pa. 1996)). • Kentucky – Evidence of benefits from a collateral source are not admissible (O'Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995)). • Ohio – Both the amount billed and amount accepted as payment are admissible. (Robinson v. Bates (2006), 112 Ohio St. 3d 17 (2006)). Legal Analysis – Collateral Source • Red Corvette driver survives • Red Corvette driver receives PIP and medical payments • New York – Under CPLR 4545(c), in any action brought to recover for personal injury, there will be an offset against both past and future economic losses for any amount received from a collateral source such as No-Fault or Disability payments. Iazzetti v. The City of New York, 94 N.Y.2d 183, 723 N.E.2d 81, 701 N.Y.S.2d 332 (1999). • Connecticut - The Plaintiff is not entitled to recover a loss that has already been paid or reduced by health insurance. A collateral source hearing is held post-verdict, at which time the plaintiff’s economic damages award is reduced by the total collateral source amount. Conn. Gen. Stat. § 52- 225a Legal Analysis – Negligent Entrustment • Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Connecticut - “When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it ... a basis of recovery by the person injured is established.” Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933). • New York – no claims for negligent entrustment of a motor vehicle because a vehicle owner is always vicariously liable when lending vehicle to another. (NY Vehicle and Traffic Law § 388). Legal Analysis – Negligent Entrustment • Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • New Jersey – Need a showing that the (1) entrustee was incompetent, unfit, or reckless, (2) the employer knew or should have known, (3) there was an entrustment of a dangerous instrumentality (4) creating a risk of harm, and (5) proximate cause. New Jersey Citizens United v. Hernandez, 2006 WL 686571 (App. Div. 2006). • Pennsylvania – (1) a defendant permitted a third person (2) to use a thing or engage in an activity which is under the control of the defendant (3) when the defendant knows or should know that such person is likely to use the thing or conduct himself in such a manner as to create an unreasonable risk of harm to others. Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. Ct. 1998). Legal Analysis – Negligent Entrustment • Tractor-trailer driver has a history of a failed drug test, but passed his drug test with regard to this accident • Tractor-trailer driver was speeding and had a history of speeding • Kentucky – The basic principle of negligent entrustment is as follows: "The common law theory of negligent entrustment is that one who entrusts his vehicle to another whom he knows to be inexperienced, careless, or reckless, or given to excessive use of intoxicating liquor while driving, is liable for the natural and probable consequences of the entrustment." Burchett v.