Forensics vs. Common Sense

One of the more interesting cases I had a few years back had to do with an older gentleman and his wife who were walking through a local parking lot to go to the movies on a Friday night. Because of the popularity of this destination – especially on a Friday night – my client had to park many aisles away from the theater.

His wife had agreed to walk ahead of him to get on line at the box office since the movie starting time was soon and the line to buy tickets was lengthy. And she was the quicker walker of the two.

As “Jim” was walking through aisles of cars, then across the parking lot pavement to the next aisle of cars he again emerged from the parked cars and was a few paces across the next lane of parking lot pavement when an oncoming car didn’t appear to see him and was coming directly towards him at a pretty good rate of speed for a parking lot.

While it was evening and dark, this parking lot was well lit with street lights since so many people walk there every night. Jim thought, “How can she not see me?” However, he was in no-man’s land. He couldn’t backtrack behind the last row of parked cars he had emerged from, and he doubted if he could completely cross the parking lot in time to avoid being hit.

And, Jim was well past the days when he could jump and tumble 10 feet away. And if he tried and failed to clear the oncoming car, he stood the chance of getting run over completely.

“This is ridiculous”, Jim thought, “I’ll make her see me!” The only real thing Jim had time to do, was to stand his ground, wave his hands and shout, “HEY!!!!”

He remembers seeing the car, the make of the car, the woman driving the car and that her head was down! She couldn’t see him because she wasn’t looking. Was she looking at her cell phone?

Of course all of this happened in a matter of split seconds, not the 58 seconds it’s taken to read this so far.

Jim remembers trying to protect at least one side of his body before impact with the car. He slightly turned to the left making his left side vulnerable but theoretically protecting his right side.

In a split second he was able to shout and pound his fist on the hood of her car. While it could have been so much worse, the front bumper of her car came in contact with his left leg and down he went.

Luckily, this split second reaction of Jim and possibly the “thud” sound of a car hitting a body, woke this woman up and she stopped immediately before running him over.

Jim suffered from a compound fracture of his left fibula (shin bone) and a deep vein thrombosis, a kind of blood clot deep in the leg that can be life threatening.

After very painful days in the hospital and months recuperating with a physical therapist, a claim was made against the car insurance company on behalf of this inattentive driver. Jim had been out of work with no income and had many insurance co-pays and deductibles to cover.

Of course her auto insurer wanted to settle, right? Those who have worked in the field of personal injury law know what’s coming….

No, as a matter of fact, not only would this insurer not make a substantial offer to settle this claim, they denied the claim stating that Jim was at fault for his own injuries.

When Jim was hit, he was in no position to give his version of the incident to the police. His wife was yards ahead of him, so she wasn’t an eyewitness. If there were any true independent eyewitnesses no one came forward to the police.

After Jim was taken by ambulance to the E.R. with his wife at his side, our mischievous little driver was free to tell the police what happened with no corroboration or contradiction.

It seems the story she concocted was that she was in control of the lane with her car and Jim didn’t see her. Jim, it seems, walked out directly into the side of her car as it was moving and was “brushed” off the side of the car sustaining injury all of his own accord. Because it’s natural for people to walk into the side of a moving car.

But this is how it appeared in the police accident report and this is the cockamamie defense she told her insurance company which documented this version as gospel.

Absolutely furious – I told the adjuster that this type of injury doesn’t happen that way. “Counselor, maybe you need to get a forensics accident reconstruction specialist to convince us otherwise.”

When faced with the prospect of spending thousands of dollars on an expert when common sense should suffice, I did a little sleuthing of my own.

First, the car that hit Jim had dark tinted windows on the side. Of course, there is no tinting on the windshield. Jim gave me a detailed description of the woman’s face and hair that he wouldn’t have seen from the side tinted window at night as she drove by. He even remembered that she had a blue glass dolphin hanging from her rear view mirror. (By the way, he never saw her after being hit. She avoided him completely and he was writhing in pain and barely recognized his own wife).

Next, we knew she had been driving a particular American four door sedan. We went online and determined the widest part of the front bumper was approximately 13 or 14 inches from the ground depending on tire inflation. The left fibula break sustained by Jim was exactly at 13 inches from the bottom his foot.

You simply cannot sustain a fibula break from a side-swipe impact. But you certainly can from blunt force trauma directly on to a shin bone.

Lastly, and most obviously, this driver was completely unable to explain why Jim was found on the ground in the middle of the parking lot aisle and not closer to the cars from where he allegedly had just emerged.

We succeeded. Without litigation, expert witnesses, forensic mechanics and tons of expenses, we convinced an insurance company of the obvious. Their insured had lied – badly – and would only suffer the wrath of a jury if we pursued this further.

The point is not to pat ourselves on the back, but rather to prove that all files need to be worked up independently and zealously. Much of what we proved was nothing more than common sense rather than evidentiary. However, all good personal injury attorneys know that every client has a different case and no two cases can be handled exactly the same way.

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