$500,000 Recovery – Dangerous Road Condition

The 35-year old plaintiff alleged that the defendant construction company negligently created an unprotected hole in a Philadelphia street and failed to warn of the condition, causing the plaintiff’s car to drive into the opening.  The plaintiff also contended that the defendant City of Philadelphia failed to ensure that the terms of the construction contract were met.  The defendants conceded liability, but disputed the nature and extent of the damages which the plaintiff claimed to have sustained as a result of the accident.

On Sunday, April 20, 1997, a clear, sunny day, at approximately 3:00 p.m., the plaintiff was driving his 1989 Lincoln Continental on Oakland Street in Philadelphia near the intersection of Gillingham Street.  The plaintiff suddenly drove his car into a hole in the street which was approximately four feet long and two feet wide with varying depths from four to six inches.  The plaintiff asserted that he was traveling at approximately 15 mph at the time of the accident.  The fall into the hole caused the plaintiff to be thrown violently forward with his head breaking the windshield.

The defendant construction company had been contracted by the city to replace sewers on Gillingham Street and had dug the hole to facilitate the sewer replacement.  The hole was awaiting blacktop to bring it level with the street.  The plaintiff contended that the defendant construction company was negligent in not erecting barriers, barricades or warning signs advising motorist of the hole.  The plaintiff’s engineering expert opined that the defendant construction company’s placement of temporary black top at the exposed vertical edges of the hole provided improper short, steep and incompetent ramps from the adjacent roadway.

The plaintiff also claimed that the defendant construction company should have made the area safe for vehicular traffic by placing steel plates over the hole or backfilling it to the level of the adjacent roadway surface.  The plaintiff’s engineering expert opined that the defendant construction company should not have opened the road to vehicular traffic while the hole was open and unprotected and failed to give proper warnings to motorists regarding the hole.  This expert also contended that the defendant city failed to ensure that the terms of the contract were met.

The plaintiff’s orthopedic surgeon reported that as a result of the accident, the plaintiff suffered a lumbar disc herniation at the L5-S1 level.  A decompressive lumbar laminectomy was performed at the L4-L5 and L5-S1 levels in July, 1997, and the herniated disc at L5-S1 was removed.

The plaintiff had sustained a similar broad based disc herniation at L4-L5 and a smaller protrusion at L5-S1 in a work-related accident in 1986.  Prior lumbar surgery had been performed in 1995.  Since 1986, the plaintiff had been unable to return to his employment as a welder and had performed no work at all.  In 1994, he began training to become a paralegal and, in fact, graduated from paralegal school several weeks after the 1997 accident.  The plaintiff contended that his ability to perform the job of a paralegal was compromised as a result of the injuries sustained in the subject accident.

The plaintiff’s orthopedic surgeon was prepared to testify that, prior to the subject accident, the plaintiff was capable of performing perhaps even medium duty work, but after the subject car accident, he was able to perform only sedentary duty work.  This expert opined that the plaintiff suffered a completely new injury as a result of the subject accident, a neck injury resulting in C8 radiculopathy.  The plaintiff’s vocational expert reported that, at best, the plaintiff could now work as a paralegal only in a part-time capacity.

The defendants argued that following recovery from the 1997 surgery, the plaintiff was in exactly the same condition as prior to the subject automobile accident.  The defendant’s orthopedic surgeon agreed that the plaintiff suffered a herniated lumbar disc as a result of the accident, but contended that he was able to perform the work of a paralegal in a full-time capacity.  The defendant’s vocational expert reported that as of December, 1997, five months after surgery was performed, the plaintiff could have returned to work as a paralegal in a full-time capacity.

The case settled for a total of $500,000 on the eve of arbitration.

REFERENCE
Plaintiff’s orthopedic surgeon:  John J. McPhilemy from Philadelphia.  Plaintiff’s vocational expert: Phillip Spergel from Philadelphia.  Defendant’s orthopedic surgeon:  Joseph R. Trubia from Philadelphia.  Defendant’s vocational expert:  Joseph Kraher from Philadelphia.

Costanzo vs. City of Philadelphia, et al.   Case no. 98-02-412; Judge n/a.  7-13-00.

Attorney for plaintiff:  Anthony J. Baratta of Baratta & Russell in Huntingdon Valley.

Commentary:

The settlement of this case occurred prior to an alternative dispute resolution arbitration.  The case had been removed from the Court of Common Pleas jurisdiction in December 1998, when the defendants conceded liability, making the contested issue only one of damages.  The defendants stipulated that the decompressive lumbar laminectomy and herniated disc removal undergone by the plaintiff in 1977 was reasonable, necessary and casually related to the injury sustained in the accident.  The defense also did not dispute the reasonableness, necessity and causally relationship of the plaintiff’s $26,473.00 in medical expenses.  The main bone of contention between the parties, however, stemmed from the plaintiff’s claim of a diminished future earning capacity as a result of his alleged inability to pursue a planned career as a paralegal.  The defense maintained that the plaintiff’s 1997 surgery restored him to his pre-accident health.  The case was complicated by the fact that the plaintiff had sustained a similar lumbar disc herniation in an unrelated work-site accident some eleven years before the subject accident and had undergone prior surgery in 1995.  Although the defendant faced heavy exposure in the event the arbitrator accepted the plaintiff’s future wage loss claim at face value; plaintiff also faced the difficulty presented by a history of very similar injury and the arguable success of the plaintiff’s surgery prompting a settlement which was agreeable to both sides.