Re: [infoguys-list] belted in the back?
- I would place Whitney at fault, unfortunately of, and regardless of the fact that Perre was possibly unrestrained, for the following reasons.
1. Whitney was 100% responsible for the safe operation of her vehicle at all times before and during the collision.
2. Whitney's failure to maintain responsible control of her vehicle (i.e. rear ended the Plaintiff) was the proximate cause of the collision. Even assuming that the Defendant can prove that the Defendant's vehicle was traveling below Highway speeds, this is not a good reason to rear end it! The Plaintiff did not lose her obligation to operate with "due regard" for the safety of other motorists around her, just because the Defendant was driving slow. If I were the Defendant, I'd simply say "I was operating at what I felt was a reasonable and safe speed for the conditions of the roadway". Who's going to try to argue the fact, that the Defendant was operating with "extra" care?
3. If the State Law says you don't have to wear a seatbelt, and the Plaintiff is Haitian, what's the Haitian customs/education regarding seatbelt usage??? Assuming he had not been in our Country very long, he may not have ever been educated to the dangers of not wearing a seatbelt.
4. If I were the Plaintiff, I'd argue the Mechanism of Injury (MOI) ! You suggest that the MOI is from striking his head on the roof of the vehicle, however, I'd argue that his injury was the result of a "Whiplash" type motion, resulting from the Plaintiff striking the back of the vehicle at a high rate of speed. Consider the forces which occurred here (again assuming somewhat). The KIA Minivan is somewhat wedge shaped on the front end, and the Corolla is somewhat squared on the rear end. Both sit fairly (equally) low to the ground, so, if the Corolla was traveling slow, and the KIA is traveling fast, and the KIA strikes the Corolla, one of two things are likely to happen. Either the KIA's front end is going to under ride the rear of the Corolla (lift Corolla off the ground) OR, it's simple going to "Q-Ball" it forward and away from the KIA (which post-impact is losing speed / energy). Either way, the occupants of the Corolla were traveling at a given speed, and suddenly were struck with substantial force (70 MPH), causing their vehicle to suddenly increase speed. Now, think of your head....it's bobbing around on top of your neck. Your head is very heavy (try picking up someone's head, when they are completely relaxed). It's largely unsupported by the neck, so when the Corolla was shoved forward violently, the Plaintiff's body was shoved forward (along with the car), but his head (unless very properly supported by a headrest) didn't speed up with the rest of the car (unsupported), so now it's whipped backward violently, and most probably sheered off (fractured) the back side of a high C-Spine Vertebra (C1-3) if very high speed difference) or (C4-7) if lower speed difference. Unfortunately, in this case, a seatbelt would not have prevented this "suggested" MOI. I think you're fighting a losing battle with a "loading" injury such as from hitting the roof. If' you're going to argue a loading injury vs. a sheering injury, you'd better get some really good Trauma Surgeon's in there to examine X-rays.
5. Also, I'd argue that despite the fact that my Plaintiff may have been unrestrained, but he'd still be walking around today, had the Defendant not rear ended him for no good reason.
6. Has an accident investigator/reconstructionist (not routine patrol officer) examined the seatbelts? Were they in use or not? It's fairly easy to determine if a seatbelt was "loaded" with energy during a collision. Has anyone offered any opinions as to the damage (or lack thereof) which would actually determine seatbelt usage? Also, has anyone recovered the CDR Modules (if equipped) on the vehicles to determine speed? Has anyone done crush analysis to determine speed? Tire mark analysis? Does either vehicle show evidence of an under ride by the KIA? All of these things need to be determined.
Smith & Carson, Inc
400 Northridge Road, Ste 500
Atlanta, GA, 30350
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Sent: Friday, February 05, 2010 12:25 PM
Subject: [infoguys-list] belted in the back?
$20 donated to the Haitian relief fund. I really need your opinions!
thanks, as always.
What caused Perre's paralysis? Was it the accident or was it due to the possibility he was unbelted?
Whitney a soft spoken divorced 30 year old woman was driving a Kia minivan at 2 am on 12 31 08 with her 2 year old in the back, driving 350 miles to her destination on interstate 95. She was travelling at approximately 70 mph. She rear ended a 1996 Toyota Corolla occupied by 3 middle aged Haitian men .. The collision occurred in the right lane. Whitney has no memory of the accident. She cannot explain her lack of memory.
She is at fault.
The plaintiff, Perre, was in the back seat. The witnesses do not agree on his position in the back and whether he was belted. He struck his head on the roof and he is a quadriplegic. There will be defense expert testimony that he was not belted, and that belting would have prevented the injury, and therefore he was negligent. (there is no law requiring a passenger to be belted in the back seat).
The plaintiff's experts will testify that he was belted, and further will claim that belting would not have made a difference. The parties disagree on life expectancy and the cost of future care.
The vehicle occupied by Peirre, appears to have been travelling at well below highway speed, even though traffic was light.
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