Liz Romero v. Dora Adams (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Liz Romero, brings this action to recover for injuries and damages which she sustained as a consequence of a January 24, 2011 incident.

On that date, at approximately 7:30 a.m., the Plaintiff was walking across Main Avenue, in a generally eastbound direction, near the three way intersection of Main Avenue, New Canaan Avenue, and Main Street, in the City of Norwalk.   The intersection is controlled by a traffic light, which governs traffic on New Canaan Avenue (Rt.123) and Main Street.   There are four lanes of travel on each of the three highways, at the point where they intersect (See Diagram, Ex. 1).

At the time and place in question, the Defendant, Dora Adams, was operating a motor vehicle in a generally eastbound direction on New Canaan Avenue, as she approached the intersection.   The Defendant remained in the right hand lane of travel, as she made a left turn from New Canaan Avenue on to Main Avenue.   Main Avenue runs in a generally north and south direction.

There are two pedestrian crosswalks at the intersection, one of which crosses New Canaan Avenue in a generally north to south direction, and a second, which crosses Main Street (See Diagram, Ex. 1).

The Plaintiff walked across the two southbound lanes of Main Avenue, and in front of a car which was stopped in the left lane for northbound vehicles.   As the Plaintiff walked into the right lane for northbound traffic, she made contact with the right front corner of the vehicle being operated by the Defendant, Dora Adams (See Photos, Ex. 13;  Ex. 1).

As a result of the impact, the Plaintiff sustained a broken right leg, a midshaft fracture of the femur, for which she underwent surgery at Norwalk Hospital (Ex. 4).   She also suffered multiple injuries, including a head injury, in the collision.

Liz Romero, who was 41 years old at the time of the accident, remained at Norwalk Hospital until she was released on February 8, 2011.   She continued to treat for her injuries following her release from the hospital (Ex. 6, 7 & 8).   She also claimed to have missed time from her employment at Stew Leonard's where she was employed as a bagger.

In this action, the Plaintiff claims that the collision, and her injuries, resulted from the negligence of the Defendant Dora Adams, as set forth in her complaint (Ex. 2, par. 5).

The Defendant, Dora Adams, maintains that any injuries and damages resulted from the Plaintiff's negligence and carelessness, and that Liz Romero's own negligence caused her injuries.

During a trial to the court, both the Plaintiff, Liz Romero, and the Defendant Dora Adams, testified.   Testimony was also received at trial from Baradino (Dino) Zaccagno, a bus driver who witnessed the accident while stopped on Main Street in response to a red light (Ex. 1), and from Police Officer Francois VanRensberg.

By agreement of the parties, the court also considered the deposition testimony of Officer VanRensberg (Ex. 3) and Dino Zaccagno (Ex. 4), the Plaintiff (Ex. 9) and the Defendant (Ex. 10).   Recorded statements were also taken from the occupants of the vehicle which was stopped in the left northbound lane of travel, Elizabeth Necatera (Ex. 11), and her son Frank Necatera (Ex. 12).

The Plaintiff, both in her deposition and her testimony at trial, recalled little about the accident.   She remembers walking on Main Avenue, and did not see the Defendant's vehicle prior to impact (Ex. 9, p. 8, 14).   She was therefore unable to testify concerning the movements of the Defendant's automobile prior to impact.

The Defendant testified that she entered the intersection on a green light and remained in the right hand lane at all times.   She did not see the Plaintiff prior to impact with the right front corner of the vehicle, and claimed to have been “driving normally” at the time of the accident.

There were no skid marks or skuff marks on the pavement as a result of the accident.

THE PLAINTIFF HAS NOT SUSTAINED HER BURDEN OF PROOF ON THE ISSUE OF LIABILITY

Dino Zaccagno, who was driving a bus, which was stopped in response to a red light, had a clear view of the accident.   He was looking directly into the intersection, when the events which produced injury to the Plaintiff transpired.

In his deposition (Ex. 4) Zaccagno said that the Plaintiff was crossing Main Avenue, and that she was not within a designated crosswalk.   He described the Plaintiff as looking down as she was walking, and that her head was “bobbing” at the time.   He quotes himself as saying to a passenger on the bus, prior to impact, “this lady is going to get hit.”  (Ex. 4, p. 12).

According to Zaccagno, the Plaintiff “walked straight into the car,” and was not looking where she was walking.   He also opined that the Plaintiff was not looking in either direction.

A car in the left lane for northbound traffic, he believed was turning into a Dunkin Donuts located at the intersection.

Recorded statements were taken from Elizabeth and Frank Necatera.   Setting aside the fact that the statements were not under oath, discrepancies between the two statements, and with other evidence, renders them of little value in evaluating the issue of liability.

In the police report, Frank Necatera is noted as the operator of the vehicle at the time of the accident (Ex. 1).   This is consistent with Frank Necatera's recorded statement (Ex. 12).

The Necatera vehicle was facing north, and the Plaintiff's automobile was approaching from the right rear.   Frank Necatera states that the Defendant was driving 15 or 20 miles per hour at the time of the incident, and that his mother was in the passenger's seat (Ex. 12, p. 4–5).

Elizabeth Necatera contradicts both her son's account, and that contained in the police report.   She claims to have been driving the vehicle (Ex. 11, p. 3), and described the Defendant's vehicle as “going pretty fast,” and “barreling around the corner” (Ex. 11, p.4–5).

Frank Necatera states that his mother was “on the phone” and “wasn't really paying attention” (Ex. 12, p. 6) when the accident occurred.

The court finds that Elizabeth Necatera is not credible, both because of the discrepancies and because she was not in a position to observe the Defendant's vehicle as was Dino Zaccagno.

FINDINGS AND CONCLUSIONS

Based upon the evidence received at trial, and the Exhibits, the court makes the following findings.

IT IS FOUND, that the Plaintiff, Liz Romero, was crossing Main Avenue, and was not in a crosswalk.

IT IS FOUND, that she was crossing the street with her head down, looking at the ground, and that she was not paying attention to vehicles which were traveling on the highway.

IT IS FOUND, that she did not see the vehicle being operated by the Defendant, Dora Adams, prior to impact.

IT IS FOUND, that the impact occurred with the right front portion of the Defendant's vehicle.

IT IS FOUND, that any negligence on the part of the Defendant, based upon her failure to see the Plaintiff prior to impact, is far outweighed by the negligence of the Plaintiff, Liz Romero.

IT IS FOUND, that the negligence of the Plaintiff was far in excess of fifty (50) percent of the total negligence of all parties to the accident.

IT IS THEREFORE FOUND, that the Plaintiff may not recover for any injuries and damages resulting from the accident of January 24, 2011.

Judgment may therefore enter in favor of the Defendant, Dora Adams, as against the Plaintiff, Liz Romero.

Costs are awarded to neither party.

RADCLIFFE, J.

Radcliffe, Dale W., J.