New York State will pay $9.5 million to settle a lawsuit filed by a crash victim paralyzed in a crash caused by a New York State Trooper using his cell phone. Erie County resident Timothy W. McCann (“Claimant”) was 70 years old when the crash paralyzed him from the chest down. George Cole of Farmington, another victim left paralyzed in that crash, settled his claim against New York State for $12 million. Claims are pending from the other three crash victims.
Claimant and Cole were passengers in a 2019 Dodge Caravan (Caravan) driven by Harold Gibbons (“Gibbons”) on July 15, 2019. Gibbons was traveling with four co-workers, including Thomas W. McCann (“Claimant) and George Cole. The driver and occupants of the van were employed by Enterprise Rent-A-Car.
Claimant and Cole were seriously injured when a 2016 Dodge police cruiser operated by New York State Trooper Stephen Barker (Trooper Barker) collided with the rear of the Caravan. The accident occurred in the town of Sheridan on the New York State Thruway (I-90) westbound approximately five miles east of Exit 59. The Caravan was traveling in the left or passing lane. There was no traffic in the right lane as all traffic had merged left. There was stop and go traffic for about two to three miles prior to the Dunkirk exit. This required Gibbons to often come to a complete stop. Immediately prior to the accident, Gibbons had come to a complete stop and the next thing he remembered was a loud bang. He was then rendered unconscious .
The data download from the Caravan indicated that it was traveling at 17 mph about five seconds prior to impact and that its brakes had been applied; that Trooper Barker’s police vehicle was traveling at 77 mph about five seconds prior to impact and was accelerating and had reached a speed of 82 mph at 0.6 seconds before impact and 73 mph at impact.
CRIMINAL CHARGES AGAINST DISTRACTED DRIVER
Trooper Barker was charged in Sheridan Town Court with:
- Reckless Endangerment in the Second Degree in violation of NYS Penal Law § 120.20. A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. Reckless endangerment in the second degree is a class A misdemeanor.
- Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. Reckless driving, a misdemeanor, is defined as driving or using any motor vehicle, motorcycle or any other vehicle in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway.
NEGLIGENCE AS THE PROXIMATE CAUSE OF THE ACCIDENT
A prima facie case of negligence is established in rear-end collision cases against the operator of the rear vehicle where the vehicle in front has stopped or is stopping (Baker v Savo, 142 AD3d 1368 [4th Dept 2016]; Barron v Northtown World Auto, 137 AD3d 1708 [4th Dept 2016]). In such instances, the operator of the rear vehicle has a duty to come forward with an adequate non-negligent explanation for the accident (Barron, Id. at 1709, citing to Borowski v Ptak, 107 AD3d 1498 [4th Dept 2013]). The Caravan had slowed to a stop prior to the accident. Trooper Barker failed to observe and react to slow and stop his vehicle in order to avoid the collision.. As a result, the New York Court of Claims found that Claimant met his burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of this accident.
GUILTY PLEA ESTABLISHED DISTRACTED DRIVER’S LIABILITY
As a result of the accident, Trooper Barker pled guilty to a misdemeanor offense of reckless driving in violation of Vehicle and Traffic Law § 1212. His guilty plea establishes New York State’s liability for negligence in causing the Claimants’ injuries (Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; see Allstate Ins. Co. v Zuk, 78 NY2d 41). Accordingly, there is no question of fact to raise a triable issue and claimants’ motion for summary judgment on the issue of negligence is granted.
The Claimant also moved for summary judgment on the issue of serious injury. In order for claimant to recover for non-economic loss resulting from a motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a “serious injury”. A serious injury is defined by Insurance Law § 5102(d) as: “a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.”
The affirmation of the Claimant’s treating orthopedist, affirmed with a reasonable degree of medical certainty that:
- The motor vehicle crash of July 15, 2019 was a substantial factor in causing multiple fractures in Claimant’s thoracic and lumbar spine, bilateral rib fractures, an intracranial hemorrhage and bilateral lower extremity paralysis, surgery on July 16, 2019 in which instrumentation was placed between T3-4 and T5-6; posterior lateral arthrodesis at T3-4 to T5-6; a laminectomy decompression of the spine at T4 and T5; and treatment of the fracture at T4-5.
- Claimant sustained a serious injury within the meaning of the Insurance Law § 5102(d) in that he sustained a permanent loss of use of his spinous processes and is permanently paralyzed from the T5 region down, with absent sensation and hyperreflexia of the lower extremities.
- Claimant will be confined to a wheelchair with no motor or sensory function below T5.
Accordingly, the Court found that the Claimant sustained his burden to establish the existence of a serious injury within the meaning of Insurance Law § 5102(d) and that there is no question of fact to raise a triable issue. The claimants’ motion for summary judgment on the issue of serious injury and negligence was granted.
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If you are a victim of a distracted driver, Buffalo Car Accident Attorney Robert Friedman is available seven days a week for a free case evaluation at (716) 543-3764.He has the unique experience of having successfully prosecuted over 33,000 dangerous, reckless and distracted drivers for 36 years as a Vehicle & Traffic Prosecutor.