No. CV01 0276414-S
March 3, 2006
MEMORANDUM OF DECISION
These actions were commenced by Gregory Smith who was the unfortunate victim of two automobile accidents during the same month; the first on April 9, 1999 and the second on April 29, 1999. These matters were consolidated for trial on June 13, 2002 (Gilardi, J.). John Barboza, now deceased, is represented in these proceedings by the administrator of his estate, Norman Fishbein. General liability and damages are not contested in either of these combined files, except to the extent that they should be apportioned between the parties.
The first accident occurred on Interstate 91 in New Haven, and there is no dispute as to the following facts. At or about 7:42 a.m. on the morning of April 9, 1999, three automobiles were heading in a northerly direction in three contiguous lanes near Exit 3. The plaintiff, Gregory Smith was in the right lane. The defendant, Julie Cianelli, was in the center lane, and an unknown driver and automobile were in the left-hand lane. Cianelli's automobile collided with the left-rear side of Smith's automobile causing him to lose control, spin 180 degrees around across the road and hit the barrier on the left hand side of the highway causing approximately $4,000.00 in damages to his 1993 Volvo sedan.
Smith testified that he was driving in the right lane at a speed of 55-60 miles per hour. Immediately prior to the collision, Smith heard the squeal of wheels and saw Cianelli's vehicle lose control. He then saw her strike the back of his vehicle. He has no recollection of seeing the third unknown vehicle.
Cianelli testified that as she was driving in the center lane at approximately 55 miles per hour, she noticed that the unknown vehicle had a "dealer plate" and that the driver was conversing on his cellular telephone. She also testified that she took some interest, along with her husband who was also in the car, in identifying the individual driving the unknown vehicle because her husband is an automobile dealer. At or about the time she was discussing these matters with her husband, Cianelli testified that the unknown driver suddenly and without warning changed lanes from the left lane to the center lane. At the time of this sudden and unanticipated lane change, her automobile was positioned in a manner that some portion of the front left side of her vehicle was in close proximity to some portion of the back right side of the unknown vehicle. She testified that this required her to immediately apply her brakes to avoid a collision. She also testified that she shut her eyes, panicked and lost control of her vehicle. Her husband similarly testified that she panicked.
Immediately after this incident, Smith sought medical treatment from the following medical providers: Dr. Arthur Siegel, neurologist, Dr. Anthony Lavorgna, chiropractor, and Dr. Donald Austria, a general practitioner.
The second accident occurred approximately three weeks later on April 29 at 8:02 a.m., when Smith was traveling in a southerly direction on Hemingway Avenue in East Haven. There is no dispute between the parties that as Smith approached Tyler Street at approximately 40 miles per hour, John Barboza negligently made a left hand turn in front of Smith's on-coming vehicle. Smith applied his brakes but was unable to stop before colliding head-on with the side of Barboza's vehicle, causing approximately $900 in damage to Smith's 1984 Audi sedan.
On the same day and thereafter, Smith continued to seek regularly scheduled treatment from the same medical providers that he had seen in connection with the first accident. As the result of either or both of these accidents, Smith suffered injuries to the lumbar, dorsal and cervical areas of his spine. In the opinions of various medical professionals, he has sustained permanent partial impairment to each of these areas. In a report of April 28, 2000, Dr. Segal ascribes a 5% permanency to the dorsal spine attributable to injuries caused by the second accident with Barboza. In the same report, Dr. Segal also ascribes a 2.5% permanency to Smith's cervical spine and 7.5% permanency to his lumbar spine, both attributable to injuries caused by the first accident with Cianelli. He also reported an injury to his left knee.
See Dr. Siegel's report of April 30, 1999, where he describes the onset of symptoms associated with Smith's dorsal spine immediately after the second accident.
However, Dr. Siegel's medical records are inconsistent with regard to the cause of the injury to Smith's cervical spine. In a report dated April 16, 1999, Dr. Siegel indicates that Smith's neck is "asymptomatic." Yet on April 30, 1999, Dr. Siegel discusses "persistence of symptoms" and refers to neck discomfort among others in this category. He then goes on to discuss the April 29 accident as the cause of injury to Smith's dorsal spine.
To add further confusion to the issue of the permanent partial injuries to various portions of Smith's spine, Dr. Lavorgna's notes and reports are entirely inconsistent. Dr. Lavorgna's notes do not seem to discuss injuries to Smith's dorsal or cervical spine. In fact, his notes from the date of the second accident April 29, 1999, specifically state "[t]here have been no significant events since the last report." The notes then consistently refer to the treatment of L5 and S1 areas of the lumbar region. In a report from Dr. Lavorgna to Dr. Siegel dated April 11, 2000, Lavorgna ascribes a 7% permanent partial injury to Smith's lumbar spine attributable to the first accident and makes no other findings. Yet in a letter to Attorney Michael F. O'Connor dated May 6, 2004, Lavorgna states that Smith's cervical and dorsal ailments are attributable to the second accident on April 29, 1999. This is thoroughly inconsistent with his notes and his previous report to Dr. Siegel.
Several years thereafter, Smith sought treatment from Doctors Mangieri, an orthopedic surgeon, and Opalak, a neurosurgeon. This medical treatment was for continued significant neck pain and for knee pain that has received no permanency rating, but which appears to have some foundation in the medical record for attribution to the first accident. Despite the more significant disability ratings for Smith's lumbar and dorsal areas, Doctors Mangieri and Opalak have focused their efforts on a significant problem with Smith's cervical spine, which is considered significant enough to seriously consider surgical treatment.
See Dr. Siegel's report of "knee discomfort" on April 16, 1999.
The parties have submitted two issues for consideration to the court. The first issue is to determine the degree of fault between Cianelli and the "unknown driver" in the first accident. The second issue is for the court to determine the relative causes of Smith's injuries attributable to the first compared with the second accident.
III. Discussion A. Cianeili Vis A' Vis The "Unknown Driver"
The court will first address the degree of fault attributable to the "unknown driver" in the first accident that occurred on April 9, 1999. At the hearing in this matter, it was suggested that the court consider two legal principles; first, the assumption that others will obey the law, and second, the principle of sudden emergency.
As driver of an automobile in Connecticut, Ms. Cianelli was entitled to assume that other drivers would obey the law. Therefore, Cianelli had the right to assume that the "unknown driver" would obey all statutes governing the operation of motor vehicles in this state and that he would use the care that a reasonably prudent person would use in the same circumstances. Cianelli was allowed to make this assumption until she knew or in the exercise of reasonable care should have known that the assumption has become unwarranted. See Turbert v. Mather Motors, Inc., 165 Conn. 422, 429, 334 A.2d 903 (1973).
Based upon a preponderance of credible evidence, the "unknown driver" changed lanes suddenly and without sufficient warning. Therefore, the court finds that the "unknown driver" committed an act of statutory negligence, in violation of General Statutes § 14-236(1), by moving from one lane to another on a multiple lane highway without ascertaining whether the lane change could be accomplished with reasonable safety.
Ms. Cianelli urges the court to consider the existence of a sudden emergency in the court's evaluation of whether she acted as a reasonable person under the circumstances. "The [sudden emergency] doctrine applies only in cases in which the operator is suddenly confronted by a situation not of his own making and has the opportunity of deciding rapidly between alternative courses of action." Mei v. Alterman Transport Lines, Inc., (Internal quotation marks omitted.) 159 Conn. 307, 312, 268 A.2d 639 (1970); quoting Vachon v. Ives, 150 Conn. 452, 455, 190 A.2d 601 (1963). However, a person choosing a course of action in an emergency is nonetheless required to exercise the care of an ordinarily prudent person acting in such an emergency.
The court finds that Cianelli was, indeed, faced with an emergency situation. The court further finds, however, that she failed to exercise the care of an ordinary prudent person acting in such an emergency. There are two factors that the court takes into consideration in this regard. First, there was testimony from Cianelli that she panicked, applied the brakes and shut her eyes. Second, she also testified that her attention was focused on the dealer plate and the identity of the "unknown driver," instead of keeping a proper lookout. A driver is required to keep a reasonable lookout for any persons and traffic likely to encounter. She is chargeable with notice of dangers or conditions that she could become aware through a reasonable exercise of her faculties. McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963).
Had Cianelli been more focused on the location of Smith's car in advance of the sudden emergency, and had she kept her eyes open throughout the emergency situation, she would have had the opportunity to keep her vehicle in proper control. Nonetheless, the court finds the negligence of the "unknown driver" to be the primary and more significant cause of the accident. As Cianelli approached the right-rear side of his automobile, the "unknown driver" failed to keep a proper lookout for her vehicle, which set in motion the chain of events that caused the accident. The court therefore assigns liability as follows: seventy-five percent to the "unknown driver" and twenty-five percent to Cianelli.
B. The Cause of Smith's Injuries
As the parties acknowledge and the court also finds, the medical records are less than perfectly clear and consistent concerning the cause of Smith's injuries to his lumbar, dorsal and cervical spine. Dr. Seigel's opinions appear to be far more consistent than Dr. Lavorgna's opinions, and they also appear to relate to and be based upon more contemporaneous observations of Mr. Smith's conditions. Despite the inconsistencies in these reports, the court sees no reason to dramatically depart from Dr. Seigel's opinion that the lumbar and cervical injuries occurred as the result of the first accident on April 9, 1999. It is also relatively clear from the record that Smith's knee injury was due to the first accident as well. The plaintiff cites the case of Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000) to support an apportionment of the vast majority of damages to the first accident. In Card, the Appellate Court approved the apportionment instructions of the trial court, wherein there were three different defendants, each of whom was involved in different automobile accidents with the same plaintiff within a relatively short period of time. In Card, the plaintiff was unable to differentiate the extent to which each accident caused her damages within reasonable medical certainty. The court therefore approved an instruction that allowed the jury to equally apportion damages among the three defendants.
In Card, the Appellate Court reasoned that "[t]he trier of fact's responsibility in cases involving injuries sustained in successive accidents is to apportion the damages among the parties whose negligence caused the plaintiff's injuries. We hold that the trial court should instruct the jury that if it is unable to determine how much of the plaintiff's damages is attributable to each tortfeasor, the jury may make a rough apportionment. The absence of conclusive evidence concerning allocation of damages will not preclude apportionment by the jury, but will necessarily result in a less precise allocation than that afforded by a clearer record." (Internal quotation marks omitted.) Id., 145.
Given the lack of clarity in the expert opinions of the medical professionals involved in the treatment of Smith, the court will apply the rule in Card to apportion some of his cervical injuries to the second accident. There is some indication, based upon Dr. Seigel's records, that Smith's injury to his cervical spine from the first accident was aggravated by the second accident as it became symptomatic, or more symptomatic after the accident that occurred on April 29, 1999.
Dr. Lavagne's opinion that the second accident caused Smith's cervical injury is inconsistent with his treatment notes, and appears to have been formed years after the accident and treatment that he performed for Smith.
The injuries to Smith's dorsal spine related to the second accident were relatively minor compared with the long-lasting treatment of his lumbar spine and the continuing treatment of his cervical spine and knee. In fact, there was very little treatment for Smith's dorsal spine, if any at all. Therefore, the court apportions damages as follows: 90% attributable to the first accident and 10% to the second. The court has previously concluded that the "unknown driver" was responsible for three-quarters of the first accident, compared with Cianelli's responsibility for one-quarter of Smith's injuries. Accordingly, in the case of Smith v. Balboza, the defendant is liable for $4,500.00 of the stipulated damages of $45,000.00 for both cases. In the case of Smith v. Cianelli, the defendant is liable for damages in the amount of $10,125.00 of the remaining $40,500.00. The "unknown driver" is responsible for the remaining $30,375.00 in damages.