Transportation
State ignored road's recurrent icy conditions, claimant alleged
| (P) $20,181,484.00 | |
| Roadways, Motor Vehicle - Center Line, Motor Vehicle - Ice, Motor Vehicle - Dangerous Condition, Motor Vehicle - Multiple Vehicle, Government - State and Local Government | |
| Slim Zouaoui and Mary Zouaoui v. The State of New York, No. 115405 | |
| Court of Claims, White Plains, NY | |
| Stephen J. Mignano |
|
| 07-27-2012 |
- Robyn Brazzil (damages); Block, O'Toole & Murphy, LLP; New York, NY, for Mary Zouaoui, Slim Zouaoui
- Nick Gjelaj (liability); Block, O'Toole & Murphy, LLP; New York, NY, for Mary Zouaoui, Slim Zouaoui
- Daniel P. O'Toole; Block, O'Toole & Murphy, LLP; New York, NY, for Slim Zouaoui, Mary Zouaoui
- Richard Magill M.D.; Orthopedics; Dobbs Ferry, NY called by: Daniel O'Toole, Robyn Brazzil
- Alan Leiken Ph.D.; Economics; East Setauket, NY called by: Daniel O'Toole, Robyn Brazzil
- Robert Koch; Plastic Surgery/Reconstructive Surgery; Goshen, NY called by: Daniel O'Toole, Robyn Brazzil
- Charles Kincaid Ph.D.; Vocational Rehabilitation; Hackensack, NJ called by: Daniel O'Toole, Robyn Brazzil
- James Shultz P.E.; Accident Reconstruction; Lancaster, PA called by: Daniel O'Toole, Nick Gjelaj (liability)
- Edwin Richter M.D.; Pain Management; New York, NY called by: Daniel O'Toole, Robyn Brazzil
- John McManus P.E.; Accident Reconstruction; Purchase, NY called by: Daniel O'Toole, Nick Gjelaj (liability)
- Jyotsna Gorti; Assistant Attorney General; White Plains, NY, for State of New York
- Michael Elia M.D.; Orthopedic Surgery; Bronxville, NY called by: Jyotsna Gorti
- William Fitzpatrick; Engineering; Hyde Park, NY called by: Jyotsna Gorti
At about 11 p.m. on March 11, 2007, claimant Slim Zouaoui, 32, an executive, was driving on the eastbound side of Route 6, near its intersection at Mahopac Avenue, in Somers. Icy conditions were prevalent. Zouaoui's car collided with a westbound vehicle that was being driven by Marc Gutterman. Zouaoui claimed that he sustained injuries of an arm and an elbow.
Zouaoui sued Route 6's maintainer, the state of New York. He alleged that the state was negligent in its maintenance of the road. He further alleged that the state's negligence created a dangerous condition that caused the accident.
In a separate filing in Westchester County Supreme Court, Zouaoui sued Gutterman, the owner of Gutterman's vehicle, the town of Somers and Westchester County. That case resulted in a settlement. Terms were not disclosed.
Zouaoui claimed that Gutterman's vehicle skidded on ice, crossed Route 6's double yellow center line and struck his vehicle's left side. He contended that Gutterman was maintaining an excessive, unsafe speed, but he claimed that the accident's primary cause was an icy roadway. Zouaoui's counsel noted that witnesses reported that ice covered both sides of the road throughout a distance of about 100 yards.
Zouaoui's counsel presented photographic evidence that demonstrated that vegetation was growing over and under the guardrails that framed the road. They contended that the vegetation prevented proper drainage of the roadway and led to recurrent icy conditions. They also presented testimony and evidence that established that icy conditions had caused several other accidents in the immediate area during the nine days that preceded the instant accident. One witness, an employee of the New York State Department of Transportation, opined that the instant accident occurred during conditions that were "as dangerous [as] you could get on a roadway." He claimed that his maintenance crew had been aware of recurrent icy hazards during the two to three weeks that preceded the accident, and he contended that the crew had deemed the area a "hot spot" that required "babysitting" maintenance that included constant checks and corrective measures. However, he acknowledged that those measures were abandoned during weekends, and claimant's counsel noted that the accident occurred on a Sunday.
Defense counsel contended that Route 6 was properly maintained during weekends and weekdays. The defense's expert engineer opined that the accident was a result of each driver's failure to maintain a safe speed. He also opined that any icy conditions were a natural occurrence that would have resulted from airborne moisture.
Zouaoui sustained crushing injuries of his left, dominant arm. The injuries included a comminuted fracture of the arm's humerus, near the elbow; destruction of the humerus's trochlea and medial epicondyle, which are upper components of the elbow; a fracture of the forearm's ulna; a dislocation of the proximal radioulnar joint, which is a lower component of the elbow; transection of the arm's ulnar nerve; and an avulsion of the forearm's flexor pronator muscle.
Zouaoui was placed in an ambulance, and he was transported to Westchester Medical Center, in Valhalla. His fractures were addressed via open reduction and internal fixation, and his hospitalization spanned about 17 days.
During the ensuing two years, Zouaoui underwent about 20 surgeries. The procedures were intended to repair the arm's structure and functionality, and they included the resection of about 2 inches of the humerus, the implantation of antibiotic cement and cadaverous bone, and the application of a graft of muscle. During the ensuing three years, he underwent eight additional procedures that were intended to improve the arm's functionality. He endured about 20 hospitalizations, and he developed four methicillin-resistant Staphylococcus aureus infections. The infections were addressed via antibiotics that were administered through his heart. Zouaoui claimed that his prolonged need for antibiotic and narcotic medications led to his development of hemorrhoids, which necessitated a hemorrhoidectomy, and a Clostridium difficile infection.
Zouaoui contended that his left arm is chronically painful and nearly functionless. He claimed that he previously enjoyed playing guitar and participating in billiards competitions, but that his left arm's condition prevents his resumption of those activities. He also claimed that his injuries stalled and stagnated a promising career. He contended that he requires lifelong medical treatment that will likely include fusion of his left elbow.
Zouaoui sought recovery of his past and future medical expenses, his future lost earnings, damages for his past and future loss of household services, and damages for his past and future pain and suffering. His wife, Mary Zouaoui, sought recovery of damages for her past and future loss of services.
On April 13, 2011, Judge Stephen Mignano found that the state was entirely liable for the accident. On June 6, 2012, Mignano determined that the claimants' damages totaled $20,181,484.
Mary Zouaoui
$250,000 Personal Injury: Past Loss Of Services
$500,000 Personal Injury: Future Loss Of Services
Slim Zouaoui
$1,507,929 Personal Injury: Past Medical Cost
$1,558,778 Personal Injury: Future Medical Cost
$4,983,030 Personal Injury: FutureLostEarningsCapability
$4,000,000 Personal Injury: Past Pain And Suffering
$7,000,000 Personal Injury: Future Pain And Suffering
$22,786 Personal Injury: past loss of household services
$358,961 Personal Injury: future loss of household services
This report is based on court documents and information that was provided by claimants' counsel. Defense counsel did not respond to the reporter's phone calls.
