Negligence – Bus/Pedestrian Collision
NEGLIGENCE – BUS/PEDESTRIAN COLLISION – LEFT SHOULDER PARTIAL LABRAL TEAR, ROTATOR CUFF
TEAR AND BICEPS TENDON RUPTURE; 2 DISPLACED FRACTURED RIBS; DISC HERNIATIONS AND SEVERE
SPINAL STENOSIS AT C5-6, C6-7, L5-S1; DISC BULGES AT C3-4, C4-5, L4-5 AND RADICULOPATHY – MULTIPLE
SURGERIES AND PHYSICAL THERAPY.
Bronx County, NY
In this motor vehicle negligence case, the plaintiff pedestrian, a 57- year-old woman, asserted that the defendant bus driver struck her in the crosswalk with the bus with such force that it caused significant, permanent injury. The defendant denied negligence and the court granted plaintiff partial summary judgment on liability and serious injury, and the defendants contested the plaintiff’s damages.
On January 24, 2013, the plaintiff pedestrian was lawfully crossing a public street, within the crosswalk at Jerome Avenue and East Knightsbridge Avenue in the Bronx. The plaintiff was struck, without warning, but the defendants’ transit lines bus and thrown to the ground. The plaintiff contended that the bus kept going but was stopped by multiple witnesses to the accident.
The plaintiff contended that the defendants negligently failed to yield to the right-of-way to a pedestrian crossing the street in a crosswalk with a green walk signal; failed to permit the plaintiff to cross in the crosswalk; failed to stop at the crosswalk and let the plaintiff pedestrian pass unimpeded and failed to exercise reasonable care to avoid hitting plaintiff thus causing her permanent injuries. The plaintiff pointed to the defendant’s internal report of the accident wherein the defendant bus driver stated that the sun obscured his view and he did not see the plaintiff until just before he struck her. The plaintiff also presented a statement from an eyewitness who testified that he saw the bus driver holding a cell phone in his hand at the time of the incident while operating the bus. The witness also stated that the plaintiff was in the crosswalk when she was struck hard by the bus and was in obvious pain after the accident.
As a result of the collision, EMS services were called to the scene and the plaintiff was transported to the hospital. The plaintiff claimed injuries to her entire left side, head, neck, left arm, upper, mid, and lower back. The plaintiff was diagnosed with left shoulder partial labral tear, rotator
cuff tear and biceps tendon rupture; 2 displaced fractured ribs; disc herniations at C5-6, C6-7, L5-S1; disc bulges at C3-4, C4-5, L4-5 and
radiculopathy in her left hand. The plaintiff was caused to miss work andclaimed lost earnings as well as past and future pain and suffering and
psychological damages. The plaintiff treated with arthroscopic partial synovectomy, debridement rotator cuff reconstruction, and bursectomy
of the left shoulder; a decompression of the L5 nerve root and placement of permanent fixation hardware with a fixator rod and locking
screws at L5-S1; extensive physical therapy; and claimed permanent disability from her injuries.
The defendant driver testified that he was temporarily blinded by sun glare as the bus emerged from underneath elevated subway tracks and
he could not see the plaintiff due to the glare. The defendant driver denied using a phone while operating the bus. The defendant argued that
all of the plaintiff’s injuries were pre-existing and not caused by the subject collision but by a 2002 motor vehicle accident, and that her injuries
from the subject incident had resolved.
In October 2021, a jury found in favor of the plaintiff and against the defendant and awarded damages in the amount of $300,000 broken down as follows: $110,000 for future medical expenses; $140,000 for past pain and suffering; and $50,000 for future pain and suffering. The plaintiff appealed the verdict and the appellate court reversed the case and sent it back down to the trial court for a retrial on damages.
Prior to the retrial, the parties settled the matter for $1.9 million via mediation.
REFERENCE
Basden vs. Liberty Lines Transit, Inc. et al. Index no. 22051/2013E; Judge Julia Rodriguez, 01-10-24.
Attorney for plaintiff: Michael Gunzburg of Michael Gunzburg, P.C. in New York, NY. Attorneys for
defendant: Roman E. Gitnik and Kent Dolan of Lifflander & Reich, LLP in New York, NY. Attorney for
defendant: Jennine Gerrard of Lewis Brisbois Bisgaard & Smith, LLP in New York, NY.
COMMENTARY
This case has extensive appellate history. The defendants initially moved to change venue from the Bronx to Westchester County. The
trial court granted that motion and directed that the case be trans- ferred to Westchester. On appeal, the AD 1st Department reversed,
sent the case back to the Bronx for trial, and granted the plaintiff’s refiled motion for summary judgment on the issue of serious in- jury. The plaintiff had partial summary judgment on liability. At the trial on damages where the jury awarded damages of $300,000, the trial court made multiple errors, all of which were taken up on appeal. On January 10, 2023, the AD 1st Dept re- versed the jury decision and sent the case back for a retrial. The AD found that the trial court committed reversible error by allowing the defendant’s orthopedic surgeon’s operative report from the plaintiff’s 2002 motor vehicle accident into evidence and by not producing the orthopedic doctor at trial and subjecting him to cross
examination. The plaintiff maintained that the defendant’s ortho- pedic surgeon had an extensive, negative medical history including
the loss of his medical license and fabrication of fraudulent opera- tive reports submitted to insurance companies but the plaintiff was
prevented from questioning him on those issues at trial. The plain- tiff also denied ever having undergone a prior left shoulder sur- gery, and that the defendant’s orthopedic doctor fabricated the report for no-fault insurance money.
