Case Report

Negligence

Towing dolly too big for van, plaintiff alleged

Verdict: (P) $250,000.00
Case Type: Negligent Assembly or Installation, Motor Vehicle – Passenger, Motor Vehicle – Single Vehicle
Case Name: Jorge Gomez v. Barn Trailer Service, Inc, Victor H. Martinez and Vilma Z. Martinez, No. 25202/06
Venue: Queens Supreme, NY
Judge: Martin E. Ritholtz
Date: 10-28-2011
Plaintiff(s):
Attorney(s): Justin M. Blitz; Schulman Blitz, LLP; New York, NY, for Jorge Gomez

Expert(s):
Donald Phillips; Accident Analysis; Hawthorne, NJ called by: Justin Blitz

Defendant(s):
Attorney(s):
Lawrence Inniss; Mendolia & Stenz; Westbury, NY, for Victor H. Martinez, Vilma Z. Martinez
Michael P. Ross; Martin Fallon & Mulle; Mineola, NY, for Barn Trailer Service Inc.
Expert(s):
Jeffrey Lange PE; Forensic Engineering; Deer Park, NY called by: Lawrence Inniss, Michael Ross

Insurers:
Government Employees Insurance Co. for Victor Martinez and Vilma Martinez
AutoOne Insurance for Barn Trailer Service
Facts:
On April 29, 2006, plaintiff Jorge Gomez, 61, a retiree, was a passenger of a van that was being driven by Victor Martinez, who was traveling on Route 78, in New Jersey. Martinez’s vehicle was towing a dolly that was supporting a car. Martinez lost control of the van, and the van struck a road divider and rolled. Gomez sustained injuries of an ankle, a knee, his torso and a wrist.

Gomez sued Martinez; the van’s owner, Vilma Martinez; and the dolly’s owner, Barn Trailer Service Inc. Gomez alleged that Victor Martinez was negligent in the operation of his vehicle, that Vilma Martinez was vicariously liable for Victor Martinez’s actions, that Barn Trailer Service negligently failed to provide a dolly that adequately supported the towed vehicle and that Barn Trailer Services negligently failed to provide adequate instructions regarding the dolly’s use.

Gomez’s counsel contended that Barn Trailer Service should have attached a heavier dolly to tow the second vehicle. Gomez claimed that Barn Trailer Service failed to warn or give proper instructions as to the use and safety of the dolly.

Gomez’s accident-reconstruction expert opined that Barn Trailer Service failed to follow the safety requirement that the vehicle pulling the dolly must weigh at least 1,000 pounds more than the dolly and vehicle combination that is being towed. He contended that there were other dollies that would have been in compliance with the weight requirement.

Victor Martinez contended that he was not negligent in the operation of the van and that the accident was the result of improper equipment that was too heavy and therefore caused him to lose control of the vehicle.

Barn Trailer Service’s counsel contended that Martinez’s actions caused the accident. He also argued that Gomez’s counsel was unable to prove that the dolly was the proximate cause of the accident.

Barn Trailer Service’s accident-reconstruction expert opined that Gomez’s expert’s theory was not accurate. He further opined that the accident could have resulted from a potential problem with the van’s transmission or an improper placement of the towed vehicle.

Injury:

The trial was bifurcated. Damages were not before the court.

Gomez, who had a prosthetic left leg, was ejected through the back window of the van and thrown some 15 feet. He sustained lacerations and burns of 5 percent of his body, consistent with road rash injuries. He also sustained an avulsion fracture of his right ankle; a comminuted fracture of the head of his right leg’s fibula, which forms a lower portion of the knee; a fracture of the ulnar styloid in his left, nondominant arm’s wrist; and a tear of his right knee’s meniscus.

Gomez was transported by helicopter to Morristown Medical Center, in Morristown, N.J., where he underwent closed reduction and the application of a cast that covered his right leg. He remained in the hospital for nine days, and he was subsequently transferred to a rehabilitation center, where he remained for 27 days. On Aug. 10, 2006, he underwent an arthroscopic meniscectomy. He continued physical therapy through the time of trial, treating about once a week.

Gomez contended that he suffers pain and limitation in his right leg, and he claimed that he cannot easily walk. He sought recovery of damages for his past and future pain and suffering.

Verdict Information:
The jury rendered a mixed verdict. It found that Barn Trailer Service was entirely liable for the accident, and the remaining defendants were not assigned liability. Prior to the scheduled start of the trial’s damages phase, Barn Trailer Service’s insurer agreed to tender its policy, which provided $250,000 of coverage.