Biker Death from Public Nuisance
There are times when a lawsuit for negligence against a state, local, municipal, or county government will not be viable because of the rules of sovereign immunity. The government agency may be immune from a lawsuit for negligent, unsafe actions and decisions due to this legal doctrine. However, when a governmental agency is to blame for causing physical injuries, there may still be some means of getting compensation for the injured biker, runner or pedestrian.
In a case reported in this month’s TRIAL magazine, a biker was killed due to a public nuisance.
This case, as reported in the “Verdicts and Settlements”, involved a middle-aged rider who was out at night in a highway construction zone when he struck a 46 inch wide rut in an unpaved shoulder next to an exit ramp. The motorcyclist was thrown from his bike and suffered a cervical spinal fracture at C-4 resulting in quadriplegia.
After this bike crash, the victim developed chronic infections because of immobility. At only 59 years age, he died after suffering complication upon complication for years after the bike crash.
Medical expenses totaled $1.53 million. Prior to this crash, the motorcycle driver was earning about $36,000 annually and was an owner/operator of a process serving company.
The lawsuit was brought against the general contractor on the highway construction project. The lawyers for the estate and widow contended that the defendants should have placed reflective barrels along the exit ramp to divert travelers around the rut.
Plaintiff’s counsel claimed approximately $435,000 in lost future earnings and about $131,000 in lost household services, as well as medical expenses and non-economic damages, often called “special damages.”
Defendant denied that the rut was dangerous or that the cyclist even struck it. Defendant further argued that the biker lost control of his bike because he had been drinking and was speeding as well.
The jury found the defendant was negligent and had created a public nuisance.
The jury allocated fault 50% to the defendant general contractor, 45% to nonparty State Department of Transportation inspectors, and 5% to the biker himself.
While in the Commonwealth of Virginia, the biker would have lost and recovered nothing, under the law of “Contributory Negligence,” (about which we have written previously) the case was allowed to go forward on damages, and the jury awarded $2.2 million in economic damages. The biker’s case was brought in a jurisdiction that recognizes “Comparative Fault.” In a Comparative Fault or “Comparative Negligence” jurisdiction, the fault of the parties is compared and the verdict is apportioned according to each party’s relative contribution to the crash. Plaintiff’s counsel then successfully moved the court for a new trial on the issue of non-economic damages.
In the second jury trial, the plaintiff was awarded $1.5 million in non-economic damages for a total recovery of $3.7 million.
The plaintiff’s counsel claimed that because the jury found the contractor to have created and maintained a public nuisance by permitting the rut to remain, comparative fault should not apply. The court agreed and therefore entered judgment in the full amount of the verdict of $3.7 million. While the defendant contractor’s appeal was pending, the parties settled for $2.5 million.
If you or someone you know has been injured while traveling in a highway construction zone on a motorcycle or other vehicle and there are questions as to what laws apply, email or call Abrams Landau, Ltd. at once (703-796-9555).