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Negligence: Automobile Accident/Pedestrian/Wrongful Death - $250,000 Settlement

Type of action: Personal Injury/Wrongful Death

Type of injuries: Brain Injury/Death

Court/case #: Superior Court, Middlesex

County, C.A. No. 89-2705

Judge or jury: N/A Name of judge: N/A

Special damages: $5,200.00 medicals

Damages awarded or settled.- Settled

Amount: $250,000.00

Attorney for plaintiff. Kenneth I. Kolpan, Law Office of Kenneth I. Kolpan, Boston

Attorney for defendant: Withheld Name of case: Kashuck v. Costa Insurance carrier- Liberty Mutual Highest offer- $250,000.00

Other useful info:

On January 3, 1989, decedent, a 70-year-old woman, was crossing northbound on Commonwealth Avenue at the intersection of Babcock Street when she was struck by the defendant’s van. Decedent was found lying unconscious outside the crosswalk after impact. The driver did witness the decedent sit up open her mouth.  Decedent suffered traumatic brain injury, did not regain consciousness and died one day later.

Criminal charges were brought against the defendant for causing her death but he was acquitted at a bench trial in Brighton District Court. There were no witnesses to the accident except for the defendant. Defendant claimed that the early morning sun blinded him as he made a left turn from Babcock Street to go east on Commonwealth Avenue. Police reports were inconclusive on whether or not decedent was struck while in the crosswalk. At the time of the accident, both the decedent and defendant had flashing red traffic lights. At the time of the collision, Massachusetts allowed for flashing red lights which were equivalent to a stop sign.  No witness testified that decedent had pressed the button for the pedestrian light before attempting to cross the intersection.

Decedent was immediately rendered unconscious.  Medical records indicated she was responsive to pain but defendant contested whether or not she consciously suffered pain during the 24 hours preceding her death. Attorney Kolpan, a Boston brain injury attorney, recognized that one of the specified harms to be compensated under the wrongful death statute is conscious pain and suffering.  The medical references to decedent’s response to painful stimuli, arguably, was evidence of conscious suffering and not a reflexive response devoid of awareness.  During the decedent’s hospitalization, doctors tested decedent’s awareness by pinpricks, pin under a finger nail and cold water ear test.

A second harm compensable under the Statute is net loss of income to the Estate.  In order to persuade a jury to compensate for this harm, the Estate must show what the decedent was earning at the time and prior to the incident, what her net income after expenses was and how much of her net income she had been giving to the heirs.  This figure would be the net loss of income of to the Estate over the decedent’s life expectancy. However, the decedent lived alone and was employed full-time as a secretary at a local university at the time of her death. Her surviving heirs were 2 adult children (one of whom lived out-of-state) and 3 grandchildren.  There was no documentation as to the net loss of income to the Estate. The settlement was for loss of consortium and medical expenses, two other compensable elements of the Massachusetts Wrongful Death Statute.

Suit was settled for $250,000.00 several months before trial.