Opinion
C.A. No. 99C-04-325-JRJ (Consolidated).
Date Submitted: January 8, 2003.
Date Decided: May 20, 2003.
Elizabeth Barnes Lewis, Esquire, Jacobs Crumplar, P.A., Wilmington, DE
Joseph J. Rhoades, Esquire, Law Office of Joseph J. Rhoades, Wilmington, DE
Joseph F. Gula, III, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, DE
Cynthia G. Beam, Esquire, Reger Rizzo, Wilmington, DE
Francis J. Jones, Esquire, Morris, James, Hitchens Williams, Newark, DE
Dear Counsel:
I apologize to Counsel for the delay in issuing my decision following the bench trial in this matter.
This personal injury action arises out of a May 25, 1998 automobile collision involving two vehicles, one operated by Keith M. Chambers ("Chambers") and the other operated by Kimberly M. Casale ("Casale"). Kimberly F. Lewis ("Lewis") was a front seat passenger in the Chambers' vehicle. Lewis sued Chambers and Casale for her personal injuries. Chambers and Casale asserted cross-claims for contribution. In addition, Chambers and Casale have sued each other for their individual personal injuries. Given the number of parties and the various claims asserted by and between the parties, counsel opted for a bench trial as opposed to a jury trial. I have reviewed the record and my notes from the trial. The following is my post-trial opinion regarding liability and damages.
Liability
The May 25, 1998 collision occurred on Kirkwood Highway by the Prices Corner Shopping Center ("shopping center"). Casale was traveling eastbound on Kirkwood Highway (toward Wilmington). Chambers was traveling westbound on Kirkwood Highway (toward Newark). The collision between Casale and Chambers occurred when Chambers attempted to make a left turn into the shopping center. Casale maintained that she had a solid green light and was proceeding through the intersection pursuant to that green light at the time of the collision. At trial, Chambers asserted that he had a green arrow entitling him to make a left turn into the shopping center without yielding to oncoming (eastbound) traffic.
The issue in this case is who had the right-of-way. No evidence has been presented by either party to support a position that the traffic signal governing either Casale or Chambers was in anyway malfunctioning at the time of the collision. It is clear from the evidence that if Casale had a solid green light, Chambers could not have had a green arrow. Alternatively, it is also clear that if Chambers had a green arrow, Casale could not have had a solid green light.
The testimony of witness Mary Ellen Hall ("Hall") supports Casale's claim that Casale had a solid green light. When the collision between Casale and Chambers occurred, Hall was attempting to exit the shopping center parking lot onto eastbound Kirkwood Highway (toward Wilmington). Hall testified that because of a colitis attack she was in a hurry to get home but had to wait to get onto Kirkwood Highway because of the traffic traveling eastbound. Hall's testimony corroborates Casale's claim that she and others traveling eastbound had a solid green light.
Plaintiff's witness, Francis Bromwell ("Bromwell"), was traveling westbound (toward Newark) on Kirkwood Highway at the time of the accident. Bromwell testified that the light governing westbound traffic was green. He also testified that the light for the left turn lane (Chamber's lane) was green. Bromwell stated that because the light for the left turn lane was green, someone traveling west and wanting to turn left would have had to yield the right of way to oncoming (eastbound) traffic. Bromwell also testified that when Chambers made the left turn into the shopping center he pulled out in front of the oncoming traffic that was traveling eastbound on Kirkwood Highway. It is important to note that according to Bromwell, traffic traveling eastbound was not stopped, suggesting Casale had a green light. If, as Bromwell testified, traffic traveling westbound had a green light, and traffic traveling eastbound had a green light, then Chambers could not have had a solid green arrow and did not have the right-of-way.
Chambers' sister Antoinette Demby ("Demby"), a backseat passenger in Chambers' vehicle, testified that Chambers had a green arrow. However, Demby's credibility is diminished by the fact that previously at a hearing in the Court of Common Pleas ("CCP") she testified that Chambers' light was green and never mentioned a green arrow. When asked at trial why she failed to mention a green arrow at the CCP hearing, Demby replied that no one asked her if it was a green arrow. It is clear that Demby was asked questions during the CCP hearing that should have elicited this answer.
Casale testified that she was familiar with the intersection where the collision occurred because she traveled through it frequently. She further testified that she knew it was possible for a vehicle heading westbound to make a left turn into the shopping center at that intersection. Casale testified she was traveling between 30 and 40 miles per hour. (The investigating officer testified the speed limit was 40 miles per hour.) Casale's statement at the scene concerning the traffic signal governing her lane of travel was consistent with her trial testimony. At the scene, she told the investigating officer that she had a green light.
Chambers testified that as he pulled up to the intersection there was a car ahead of him stopped in the left turn lane. Chambers had a solid red light. When the car ahead of Chambers proceeded to make a left turn, Chambers said he looked up, saw he had a green arrow, and proceeded to make a left turn behind the car in front of him. Chambers could not testify as to what signal the car in front of him had on when that driver proceeded to turn left. Chambers also testified that as he was making his left through the intersection, he saw a car stopped in the left lane of the eastbound lanes.
On cross examination, Casale's counsel impeached Chambers on some material points. First, Chambers admitted that in the CCP hearing he testified that when he approached the intersection the light governing his lane it was green, traffic coming from the other direction also had a green light, and therefore he could not make a left turn unless he yielded to oncoming traffic. Second, at the CCP hearing, Chambers further testified that the car ahead of him in the left turn lane was stopped, waiting for a break in the traffic coming from the other direction. Third, in a statement he gave approximately ten weeks after the accident, Chambers told the interviewer, "when the green arrow goes off, you can go as long as you check and make sure that there's no cars coming." Fourth, Chambers alleges that he told the investigating officer that he turned left on a green arrow, but the police officer testified at trial that Chambers told him that he had a green light and never mentioned a green arrow. Chambers also told the investigating officer that Casale had a red light, but the police officer testified that Chambers could not have seen Casale's light. Fifth, in a previous hearing, Chambers testified that he waited at the light for 10-15 seconds before making his turn and during that time the light was red. At trial, however, Chambers testified he waited 5-6 seconds before the light changed and then he proceeded to turn. Later in his testimony, upon further questioning, he again changed his estimate to 3-4 seconds.
Lewis, the front seat passenger in Chambers' car and a plaintiff in the suit against Casale, testified that as Chambers began his left turn, she observed a green arrow for his lane of travel. She further testified that she saw a car in the left lane of eastbound Kirkwood Highway stopped at the intersection. According to Lewis, as Chambers proceeded to make the left turn (passing the car stopped in the left lane of eastbound Kirkwood Highway), Lewis saw Casale's car approaching and screamed, and the Casale and Chambers vehicles collided.
On cross examination, Casale's counsel established that in a prior hearing, Lewis testified that she first saw Casale's vehicle enter onto Kirkwood Highway and pass through the intersection where the McDonald's is located. During Lewis' testimony, Casale's counsel established that the distance between that intersection and the Chambers' vehicle was 1,630 feet. Casale's counsel questioned Lewis about how she could have seen Casale's car 1,630 feet down the highway, particularly since there was a truck in front of the Chambers' vehicle waiting to turn left. Casale's counsel questioned Lewis about all the various structures in between the intersection where the accident occurred and the intersection where Lewis said she first saw Casale's car. Casale's counsel established that in a prior proceeding, Lewis testified that she not only saw Casale's vehicle enter the roadway, but she watched Casale's vehicle from that point up until the point of impact. This testimony is incredible in light of the distance and what must have been an obstructed view from her vantage point. Moreover, Casale's counsel pointed out numerous inconsistencies between Lewis' trial testimony and her testimony at the earlier hearing. Given the numerous inconsistencies, and Lewis' incredible testimony that she was able to see Casale's vehicle enter the roadway from a distance in excess of five football fields, the Court finds Lewis' testimony on issues relating to liability far less credible than the testimony of Casale and the disinterested witnesses.
James Piccioti ("Piccioti"), who was waiting behind Chambers in the left turn lane to turn into the shopping center, testified that when he pulled up behind Chambers the light was a red arrow and Chambers was stopped. Then, according to Piccioti, the signal changed to a green arrow. Piccioti testified that he was on Chambers' "tail" because he wanted "to make the green light." According to Piccioti, Chambers started to make his left turn "real slow," and kept going slower and slower. Piccioti said he saw Casale's vehicle coming, and stopped because he was afraid Casale's vehicle was going to hit his vehicle. Piccioti testified that Casale's vehicle was "hell bent that it was going to get something, whether it was going to be a car or me or whatever." According to Piccioti, Casale's vehicle switched lanes, irrationally, twice before the impact. Piccioti said that Casale's vehicle was traveling between 35 and 40 miles per hour. Although he was an eyewitness, Piccioti did not wait for a police officer to arrive at the accident scene. Later he responded to an ad in the newspaper seeking witnesses to the collision.
On cross examination, Casale's counsel established that a few months prior to trial, Piccioti said he was not sure whether Chambers and he had a green arrow but he was sure they had a green light. When questioned about this earlier statement, Piccioti testified, "I think I said that but the more I think about it, it was an arrow." Piccioti does not recall seeing any vehicle in the eastbound lanes except the Casale vehicle. Piccioti is a likeable gentleman, but the Court does not find his testimony very convincing. In addition to the inconsistency between his trial testimony and earlier statement, no other witnesses testified that Casale changed lanes irrationally or drove in a manner indicating she was "hell bent" on hitting another vehicle.
Given all the conflicting accounts, the Court is unable to reconcile the testimony and make one "harmonious story of it all" as this Court's standard jury instructions direct the fact finder to do. Thus, the Court must disregard the portions of testimony it finds unbelievable and rely on those portions of testimony it finds credible. After carefully reviewing all of the evidence and assessing the demeanor and credibility of each of the witnesses, the Court concludes it is more probable than not that Casale had a green light and was not negligent in a manner that proximately caused the collision. The Court also concludes it is more probable than not that Chambers proceeded to make his left turn on a solid green light and therefore was required to yield the right of way to Casale and the other oncoming traffic. The Court finds it is more probable than not that Chambers either did not see Casale's vehicle because of other vehicles on the roadway or he misjudged the distance between Casale's vehicle and his own. Under either scenario, the Court finds Chambers was negligent in a manner that proximately caused the collision.
Damages
Because the Court finds Chambers' negligence was the sole cause of the collision, he is not entitled to any damages. With respect to Casale's injuries, the undisputed evidence established that she had no injury to her head, neck, back or legs prior to the collision. Following the collision, Casale, then age 25, was transported by ambulance to the emergency room at Christiana Hospital with complaints of neck and back pain. As she awaited x-rays and treatment, Casale's pain grew progressively worse. She had excruciating pain in her neck, down her back and into both legs. Upon discharge from the emergency room, she received a prescription for pain medication and a muscle relaxer and was instructed to make an appointment with her doctor the following day. When she returned home that evening she was "really sore." She could not get comfortable, was experiencing back spasms and had difficulty moving and sleeping because of the pain. For the next few days she was in "a lot of pain," "extremely sore," "couldn't move," and "felt like [her] . . . head was just going to collapse. . . ."
Two days after the collision Casale saw Dr. Ufberg. She reported pain in her head, neck, back and legs. She described her head pain as "[l]ike somebody was pounding my head with a hammer." Dr. Ufberg concluded to a reasonable degree of medical probability that Casale suffered a cervical thoracic lumbosacral and bilateral thigh strain as a result of the collision. He also concluded to a reasonable degree of medical probability that she suffered muscular headaches and fibromyalgia as a result of the collision. Dr. Ufberg prescribed pain medication and physical therapy and limited Casale to part-time work status. Initially, Casale attended physical therapy every day, five days a week. Casale testified that she attended physical therapy from June 1998 until approximately January 1999. Casale testified that she attended physical therapy less frequently once she started feeling better. Once she stopped the formal physical therapy sessions, Casale performed home exercises. She continued to treat with Dr. Ufberg. As a result of her injuries, Casale took medication prescribed by Dr. Ufberg for about a year. Casale reported that she suffered anxiety and fear of driving for quite a while after the collision but this has improved. Casale, seven months pregnant at the time of trial, testified that the weight she gained during her pregnancy made her back pain worse. She testified that she still has headaches and lower neck and back pain from the collision. The neck and back pain is worse when it is humid or rains. Casale experiences back pain when she attempts to pick up heavy objects or move furniture.
According to Dr. Ufberg, who last examined Casale in August 2000, Casale sustained permanent injury to her cervical spine, thoracic spine and lumboscecral spine as a proximate result of the collision. Dr. Ufberg opined that Casale is permanently restricted from frequent reaching and above-head lifting as a result of the injuries suffered in the collision. When questioned about the Defense Medical Examination of Casale performed by Dr. Gelman, Dr. Ufberg testified that he disagreed with Dr. Gelman's opinions. Specifically, Dr. Ufberg disagreed with Dr. Gelman's conclusion that Casale has no residual problems from the collision, relying on his findings from multiple examinations of Casale spanning three years.
Casale presented as a pleasant, likeable, straightforward, young lady. She did not appear defensive, evasive or uncooperative during cross examination. She did not appear to embellish or exaggerate her symptoms. In short, the Court finds her testimony to be very credible and is persuaded that she still suffers and will continue to suffer from the pain, limitations and restrictions that both she and Dr. Ufberg described. In light of the degree and permanency of her injuries, and the effect those injuries have had and will continue to have on her, on a daily basis, the Court determines that $32,000.00 is just and reasonable compensation.
The Court will now address Lewis' injuries. Lewis, 38 years old, was a passenger in the front seat of Chambers' vehicle at the time of the collision. Lewis testified that upon impact her legs hit the dashboard and her body struck Chambers' body. She complained of head, neck, shoulders and left arm pain and was transported from the accident scene by ambulance to the Emergency Room at Christiana Hospital. She was examined, prescribed pain medication, released from the hospital and instructed to seek follow-up treatment.
Lewis saw Dr. Conrad King on June 3, 1998. She reported that from the time she was released from the hospital until the time she saw Dr. King, she experienced "excruciating pain," and "burning." According to Lewis, she complained of sharp pains in her head, neck stiffness, burning, inflamed shoulders, numbness in her arms, tingling in her fingers and pain in her thighs. Dr. King prescribed physical therapy and prescribed a muscle relaxant.
Lewis testified that she attended physical therapy for about five months. She saw Dr. King on a monthly basis in 1999 and approximately every two to three months in 2000. Lewis testified that she experienced "some improvement" but she did not get completely recover. Lewis testified that she was fearful of getting into the ambulance and has anxiety about riding in a car as a result of the collision. Lewis said that her injuries impaired her ability to perform certain household tasks, such as cooking, cleaning and vacuuming. Lewis testified that after the collision her children (ranging from ages 12 to 20) and her husband had to assist with these chores. Lewis also testified that she was unable to braid or style her children's hair and could not hug her children closely because of her injuries.
Dr. King testified about his examinations and treatment of Lewis. Dr. King reported that during her initial office visit, a little over a week after the collision, Lewis denied any prior history of trauma and symptoms prior to the collision. At her first visit, Lewis complained of pain along both sides of the neck extending into her shoulders and scapula. She reported that certain head movements exacerbated her neck and shoulder pain. In addition, she reported headaches at the base of her skull, pain along her left flank and pain in both anterior thighs. She also told Dr. King that she had no pain free days but had good and bad days. Activity tended to exacerbate her symptoms. She also complained of marked anxiety since the collision. Dr. King testified that Lewis' subjective complaints correlated with his objective findings of muscle spasms on multiple examinations. He also testified that Lewis' complaints of headaches, neck pain and left arm pain persisted but her left flank and anterior thigh pain eventually resided. Dr. King stated that at times during his treatment Lewis' symptoms worsened and therefore totally or partially disabled her from work. This happened several times. Dr. King released Lewis to return to work eight hours a day as of February 24, 1999. On February 26, however, Lewis experienced an exacerbation of her symptoms and Dr. King placed her on long-term disability until September 7, 1999. As of September 7, 1999, Dr. King released her to return to work part-time.
In Dr. King's opinion, Lewis sustained post-traumatic occipital neuralgia, post-traumatic cervical strain and sprain, Left C7 radicultitis, strain and sprain of the left latisimus dorsal muscle and bilateral quadriceps strain. He also testified that she had marked anxiety and depression. Dr. King testified that Lewis had objective muscle spasms, and objective evidence of cervical injury, namely an EMG showing left C7 radicultitis. Dr. King stated to a reasonable degree of medical probability that the injury to Lewis' cervical spine is permanent. In his June 22, 2000, Narrative, Dr. King stated:
Despite ongoing residual cervical pain, the patient's clinical condition has improved sufficiently so that she has been able to somewhat better tolerate her activities of daily living Physical examination reveals full range of motion of the cervical spine with some residual discomfort on extremes of rotation to the left and lateral bending to the right.
There is no evidence of residual paracervical myospasm or trigger points. Neurologic examination remain unchanged. Dr. King expected that Lewis would have restrictions in her ability to lift, push, pull, reach and stretch.
On November 2, 2000, Lewis was involved in another collision not the subject of this suit. In that accident, she was the front seat passenger in a vehicle struck on the driver's side by a vehicle that ran a red light. Dr. King treated her after the November 2, 2000 accident as well. According to Dr. King's November 9, 2000 narrative, Lewis lost consciousness temporarily after the second accident. She was transported via ambulance to the hospital. When she saw Dr. King one week after the second accident, she told him that she was unable to work and had experienced a precipitous increase in the frequency, duration and intensity of her preexisting neck pain since the November 2 accident. She told Dr. King that her pain involved both sides of the neck and extended into both shoulder tops and into the scapula. All head movements exacerbated her neck pain. She reported "global" headaches and difficulty tolerating reaching, lifting, pushing or pulling as a result of the exacerbation of her neck pain. She also reported soreness and achiness of the left elbow, but indicated her elbow discomfort was "much better" than initially following the November 2 accident. Finally, she reported soreness of the right calf, particularly with weight bearing and ambulation. According to Dr. King's November 9, 2000 narrative, Lewis was having a difficult time performing many of her normal activities. Currently, she suffers from constant burning in her neck and frequent headaches.
In Dr. King's opinion, as a direct result of the November 2, 2000 collision, Lewis sustained cerebral concussion with post-concussive syndrome, aggravation of pre-existing chronic cervical strain and sprain, contusion and sprain in the left elbow, and contusion and sprain of the right calf. She also suffered from anxiety. Dr. King disabled Lewis from work from November 2000 until June 2001. In his June 18, 2001 narrative, Dr. King opined that 50% of Lewis' cervical spine injury is related to the accident which is the subject of this suit and 50% is related to the second accident.
At the time of Lewis' last office visit with Dr. King in November 2001, she reported ongoing achiness and soreness of the neck localized on both sides and extending into both shoulder tops. This pain occurred 15 to 20 days per month. It tended to occur with activities such as reaching, lifting, pushing or pulling, but she also had significant pain at rest. Lewis testified she gained 30-40 pounds after the first accident because she could not be as active as she was prior to the first accident. Lewis' close friend, Dorien Snyder ("Snyder"), testified that after the first accident Lewis could no longer dance or power walk. In addition, Lewis was depressed, irritated and agitated.
The most compelling portion of Lewis' trial testimony concerned Lewis' inability to do her job after the May 1998 collision. At the time of the collision, Lewis had been employed by Trust Star Retirement Services for two years setting up IRA's. She testified that she loved her job and that it was going to be her career. It was a stable job that provided benefits. When Lewis testified about her inability to continue working at this job because of pain she became visibly upset and cried. There was no evidence to rebut Lewis' claim that she lost her job as a result of her injuries caused by the May 25, 1998 collision, however there was also no evidence of past or future lost wages.
Lewis' testimony about her physical injuries was more credible than her testimony on liability, but overall her presentation was not as effective or convincing as Casale's. On cross examination, Counsel for Casale established that records from an emergency room visit following the November 2, 2000 accident suggested that Lewis either told hospital personnel that she had no prior medical history or failed to tell hospital personnel, when questioned, about the injuries she sustained in the May 25, 1998 collision.
The Court determines that just and reasonable compensation for the injuries Lewis sustained in the May 1998 collision is $22,825.00. This figure includes $6,825.00 in future medical expenses.
IT IS SO ORDERED.