Connecticut Cases October 28, 2019: Gamache v. Maxwell

Case Description

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Taylor, Mark H., J.

MEMORANDUM OF DECISION

Mark H. Taylor, Judge.

This matter was tried before the court on October 22, 2019. The cause of action involves injuries sustained by the plaintiff in an automobile collision, in which the parties dispute liability for the accident, as well as the reasonable treatment required and permanency of the plaintiff’s injuries.

The undisputed facts are as follows: The motor vehicle collision occurred at approximately 8:00 a.m. on January 13, 2016, as the plaintiff was traveling at 25-30 miles per hour in heavy but free flowing, southbound traffic on Bloomfield Avenue in Hartford. Road conditions were good and the weather was clear. The collision occurred after the defendant proceeded onto Bloomfield Avenue from his driveway, intending to head in the northbound direction, when the defendant’s front left bumper collided with the plaintiff’s front, passenger side wheel, wheel well and the side step of his Silverado pick-up truck.

The parties also agree that the collision occurred on Bloomfield Avenue where there is one lane heading northbound toward Watkinson School and two lanes heading in the southbound direction toward the City of Hartford, with the far right lane also available for traffic heading west on Albany Avenue into West Hartford. After the collision, both parties removed their vehicles from the roadway— the defendant backed into his driveway and the plaintiff proceeded into a driveway, opposite the defendant’s home at 59 Bloomfield Avenue.

The primary dispute between the parties is over liability for the collision, arising from the specific location that it occurred. The plaintiff contends that he had the right of way, traveling in the left lane of the two southbound lanes of Bloomfield Avenue at the time of the collision. In support of this assertion, that he was within his right of way at that time, the plaintiff testified that he picked up the defendant’s license plate on the right side of the left lane, where he claims the accident occurred, near the right lane of the southbound roadway. He asserts that he handed the plate to the defendant, who then told him that the police had been called, but denies any further, substantive conversation.

The plaintiff also cites corroborative support in the police report as well as the deposition testimony of the defendant’s daughter, Ayana Maxwell, who was a passenger in his vehicle, although she was only 11 years old at the time of the collision. Exhibit 20. In her deposition, Ms. Maxwell repeatedly states that the accident occurred in the right lane of the two southbound lanes, adjacent to the defendant’s driveway. In identifying the location of the accident, Ms. Maxwell marked photographs of the scene, showing that the accident occurred in the right lane of the two southbound lanes of travel. Exhibit 4.

The defendant testified that he proceeded onto Bloomfield Avenue at the time of the collision, as was his custom in bringing his daughter to Watkinson School, but only after being certain that the two southbound lanes of traffic had stopped to allow him to cross the road safely and head north on Bloomfield Avenue. This assertion was also clearly corroborated by the testimony of Ms. Maxwell.

The defendant’s claim is that the plaintiff left his southbound lane of travel, for the purpose of heading south in the northbound lane. The defendant asserts that this negligent and careless maneuver resulted in the collision of the parties’ vehicles in the northbound lane of travel. In support of this assertion, the defendant testified that he noticed the plaintiff begin to move out of the southbound lane of travel, approximately four vehicles back, beyond an unidentified vehicle he claims was stopped to allow him to cross the southbound roadway. He testified that he was able to see the plaintiff’s vehicle at that distance because of its height, and speculated that the plaintiff made this maneuver due to the slowed traffic and the possible gap south of his driveway. He also testified that he was cautiously looking in a southerly direction for traffic in the northbound lane, in order to proceed further into the roadway to deliver his daughter to school. The defendant asserts that these facts were omitted from the police report.

The defendant further testified that the plaintiff apologized for the accident but has no recollection of his license plate being returned to him by the plaintiff during that conversation. The defendant subsequently testified that he was unsure of whether or not the license plate was ever missing from the front of his vehicle, despite photographic evidence showing it to be missing at the repair shop’s lot.

Although the court credits both parties with veracity, the preponderance of the evidence leads the court to conclude that the defendant is legally liable for the automobile collision between the parties, pursuant to General Statute § § 14-243 and 14-247. Although speed may have been a factor, it is unclear from the testimony that it was unreasonable under the circumstances. The court cannot conclude that 25 to 30 m.p.h. is unreasonable in free flowing, but heavy traffic.

But for the defendant’s testimony, the plaintiff’s claims of fact have been consistent and have been corroborated. Of particular note is the plaintiff’s claim that he picked up the defendant’s license plate in the middle of the southbound roadway and handed it to the defendant. This claim is supported by evidence showing that the license plate was missing from the vehicle after the accident, Exhibit 6, and the defendant’s failure to account for the plate, other than to say that it was not missing.

The court discounts the defendant’s claims of fact for two, related reasons. First, he did not testify that he saw the plaintiff heading south in the northbound lane. Instead, he noticed that the plaintiff moved out of his southbound lane, approximately four cars back from his position while crossing the roadway. He then assumed that the plaintiff must have moving south in the northbound lane because of the position on the roadway he believed his automobile was in at the time of the collision. Second, in entering Bloomfield Avenue in heavy traffic, the defendant was addressing a multifaceted traffic scenario, involving three lanes of travel and was not focused on the southbound traffic at the time of the collision. The problem with this testimony is as follows: If the defendant had believed that the plaintiff was about to engage in such a dangerous maneuver, heading south in the wrong lane in heavy traffic, why did he proceed into the northbound lane? The court’s conclusion is that, whatever the defendant may have seen, it was not significant enough to alert him to any danger in proceeding further into the northbound lane. For these reasons, the court finds for the plaintiff on the question of liability and rejects the defendant’s special defenses.

The plaintiff is a 29-year-old, otherwise healthy young man with no prior injuries. His reasonable life expectancy is stipulated by the parties to be 48.4 years. The court further finds that the plaintiff was injured in the collision in the following ways. The significant impact of the vehicles caused the plaintiff’s body to move to the right, toward the impact, and then to the left, upon which he injured his left shoulder, neck and head. Although he did not report these injuries immediately at the scene, they manifested shortly thereafter in pain and stiffness that evening and he reasonable sought treatment the next day at Doctors Express in West Hartford. His primary complaint at that time was a shoulder injury, but he additionally complained of pain on the left side of his neck and a lingering headache, following earlier dizziness and nausea. Upon evaluation, he was diagnosed with a sprained left shoulder (trapezius) and neck pain, despite normal range of motion. He was prescribed ibuprofen 800 mg tablets and cyclobenzaprine 10 mg and was referred to physical therapy.

The plaintiff then sought chiropractic care from Dr. Dalfino, D.C. and followed an intensive course of treatment with him from the second day following the collision, January 15, 2016, until March 14, 2016, after which treatments were reduced to weekly, monthly and now sporadic treatments, last provided on May 21, 2019. The Dr.’s note on that date states that the plaintiff "continues to demonstrate that his injury is ongoing." Exhibit 12. The court therefore concludes from this and other evidence in the record, infra, that the plaintiff suffered a permanent injury as the result of the collision.

At the end of his intensive treatment with Dr. Dalfino of approximately 25 visits, the plaintiff sought treatment with Dr. Jambor, M.D. and Brian Fry, P.A., both of Farmington Valley Orthopedic Associates, P.C. (FVOA). He reported to them that, although his condition had improved, he still had "an annoying, nagging, dull, aching and numb sensation at the left side of his neck and into his shoulder." Exhibit 13. Although his ranges of motion were good, the impression was that the plaintiff was suffering from persistent cervicalgia, resulting from the collision and physical therapy was, again, recommended. At his next visit with Mr. Fry, an MRI was recommended, the result of which was "mild cervical spondylosis." Id. The plaintiff completed his evaluation and treatment with FVOA on February 24, 2017 and his cervicalgia condition was determined to be of a permanent nature and, therefore, would require future physical therapy visits of approximately 5-10 per year for three years, at a cost of $100 per visit. Although he was determined not to be a surgical candidate, he was referred to follow-up with both pain management and, curiously, spine surgery. Id.

After his intensive treatment with Dr. Dalfino, and upon referral from FVOA, the plaintiff sought physical therapy with Hartford Hospital Rehabilitation Network on July 8, 2016, with the goal of learning exercises to gain strength in various ways over the course of 4-6 weeks. During these visits, he was diagnosed with both cervicalgia and radiculopathy of the cervical region. After hitting a "plateau" on or about September 28, 2016, he returned to his M.D. and discontinued physical therapy. Exhibit 14. He thereafter visited Dr. Delfino sporadically on and after October 14, 2016 for five visits, ending on May 21, 2019. Exhibit 12. The court also notes that the MRI results, though not significant, identified two soft disk bulges at levels C5-C6 and C6-C7, the first of these at the C5-C6 level "slightly effaces the ventral CFS space."

With "lingering neck pain," the plaintiff was referred to a new round of physical therapy at Live Every Day Physical Therapy near his home in Simsbury, beginning on November 11, 2016. At that time, he reported neck pain ranging from his worst pain of 5-6/10 to 2/10 on his best days. He was described as tolerating treatments well and reported relief with treatments and made improvements in pain relief and joint mobility; however, his pain was reported to have been acute at times. Surprisingly, his treatment expanded to include his lumbar spine for several weeks in December, apparently resulting from some other incident. By December 22, 2016, the plaintiff’s treatment progress was reported to be minimal and was discontinued soon thereafter on January 14, 2017.

The medical bills for these treatments total $18,895.88. Although the defendant’s medical record review by Dr. Michael Murphy concludes that treatment after 6-12 weeks would be palliative and not curative, the court concludes that the treatment provided to the plaintiff, though varied and extensive, was with the recommendations of his medical providers who evaluated him in person and found further treatment to be medically necessary. Upon each round of therapy, the plaintiff was suffering significant pain and found relief, though ultimately it may have been temporary and, perhaps, merely palliative.

The court notes that treatment records include time-limited goals and discharges from treatment when no longer efficacious. Although the court agrees that regular treatment is no longer appropriate or curative, acute episodes may require limited, continuing treatment, as the plaintiff has done on one or two occasions per year since his final evaluations. The court will, nonetheless, reduce the related medical bills of Katie Lauder by $500, as her therapy on December 2, 2017 and for several weeks thereafter, included the plaintiff’s lumbar spine for an injury unrelated to the automobile collision. The court therefore finds that past economic damages in the amount of $18,395.88 are related to the collision that occurred on January 13, 2016. The court will also award future economic damages in the amount of $510, reflecting two visits per year for three years, at Dr. Delfino’s rate of $135. Total economic damages related to the collision are $18,905.88.

Although the plaintiff has been primarily diagnosed with a soft tissue injury, there are objective findings in the plaintiff’s MRI, giving credence to the plaintiff’s complaints of ongoing pain and his extensive pursuit of curative treatments that proved only temporarily curative, and ultimately palliative. His medical reports also report radiculopathy at times. In determining reasonable damages, the court takes into consideration that the plaintiff has no prior injuries and has no history of treatment to his neck or shoulder. The plaintiff’s extensive treatment is therefore indicative of ongoing and significant pain, including radiculopathy at times, resulting from the collision, continuing at times at a level described by the plaintiff as 5-6/10, and by his treatment providers, at times, to have been acute. The court therefore awards $40,000 in noneconomic damages for past and future pain, permanent injury and the loss of life’s pleasures for this 29-year-old man.

The total award of the court for the plaintiff in this matter is $58,905.88. Entry of judgment is stayed until December 2, 2019.