New York Verdicts

Amount:

$7,208,000

Type:

Verdict-Plaintiff

State:

New York

Venue:

Kings County

Court:

Kings Supreme

Injury Type(s):

Case Type:

Motor Vehicle – Pedestrian; Products Liability – Automobiles; Motor Vehicle – Reversing Vehicle; Wrongful Death – Survival Damages; Products Liability – Manufacturing Defect; Worker/Workplace Negligence – Negligent Maintenance

Case Name:

Pedro Vargas as Administrator of the Estate of Evan Hernandez-Morales, Deceased and Alexander Ivan Hernandez, an Infant by His Mother and Natural Guardian, Veronica Ortega v. Crown Container Co., Inc Crown Container Waste Services Corp., Crown Transfer Station Co., Inc., Advanced Fleet Maintenance, Inc., Electronic Controls Company and Ashim Ali,
No. 12520/08

Date:

March 25, 2014

Plaintiff(s):

Alexander Ivan Hernandez (Male, 2 Years), 

Estate of Ivan Hernandez-Morales (Male, 22 Years)

Plaintiff Attorney(s):

Paul J. Edelstein;
The Edelsteins Faegenburg & Brown LLP, New York, NY, of counsel, Sol Zepnick P.C.;
New York,
NY,
for
Alexander Ivan Hernandez, Estate of Ivan Hernandez-Morales ■ Daniel A. Thomas;
Law Offices of Daniel A. Thomas, P.C., New York, NY, of counsel, Sol Zepnick P.C.;
New York,
NY,
for
Alexander Ivan Hernandez, Estate of Ivan Hernandez-Morales ■ Matthew Zepnick;
Sol Zepnick PC;
New York,
NY,
for
Alexander Ivan Hernandez, Estate of Ivan Hernandez-Morales

Plaintiff Expert(s):

C. Gambardella;

Accident Reconstruction;
Spring Valley,
NY called by
Paul J. Edelstein, Daniel A. Thomas ■ Jeffrey Siedenberg;
Ph.D.;
Economics;
Riverdale,
NY called by
Paul J. Edelstein, Daniel A. Thomas ■ Michael Greenberg;
M.D.;
Forensic Pathology;
New York,
NY called by
Paul J. Edelstein, Daniel A. Thomas

Defendant(s):

Ashim Ali, 

Electronic Controls Co., 

Crown Container Co. Inc., 

Advanced Fleet Maintenance Inc., 

Crown Container Waste Services Corp., 

Crown Container Transfer Station Co. Inc.

Defense Attorney(s):

Robert G. Spevack;
Jeffrey Samel & Partners;
New York,
NY,
for
Ashim Ali ■ Daniel J. McNamara;
DeCicco, Gibbons & McNamara, P.C.;
New York,
NY,
for
Crown Container Co. Inc. ■ Sean T. Burns;
Carroll McNulty Kull LLC;
New York,
NY,
for
Crown Container Waste Services Corp. ■ Timothy J. Staines;
Lester Schwab Katz & Dwyer, LLP;
New York,
NY,
for
Electronic Controls Co. ■ Kenneth S. Merber;
Nelson, Levine, de Luca & Hamilton, LLC;
New York,
NY,
for
Advanced Fleet Maintenance Inc. ■ Brian Gardner;
Sullivan Gardner PC;
New York,
NY,
for
Crown Container Co. Inc. ■ Dennis J. Brady;
Goldberg Segalla LLP;
New York,
NY,
for
Crown Container Transfer Station Co. Inc.

Defendant Expert(s):

Joseph LaMantia;
Trauma;
Manhasset,
NY called by
Kenneth S. Merber

Insurer(s):

New York Marine and General Insurance Co. for Ali, Crown Container, Crown Container Transfer Station and Crown Container Waste Services (primary insurer);
Century Insurance Group for Advanced Fleet Maintenance;
General Star National Insurance Co. for Ali, Crown Container, Crown Container Transfer Station and Crown Container Waste Services (excess);
First Cardinal LLC for Electronic Controls

On May 10, 2007, plaintiff’s decedent Ivan Hernandez-Morales, 22, a sanitation worker, was struck by a reversing sanitation truck. The incident occurred while Hernandez-Morales and a co-worker were removing trash on 37th Street, near its intersection at 36th Avenue, in the Long Island City section of Queens. While Hernandez-Morales was standing between the truck’s rear end and a large steel waste receptacle, the truck’s driver, Ashim Ali, activated the truck’s power take-off unit, which transfers power to the truck’s compactor, from the engine. The truck lurched backward, struck Hernandez-Morales and pinned him against the waste receptacle. Hernandez-Morales sustained a fatal injury. Hernandez-Morales’ uncle, Pedro Vargas, acting as the administrator of Hernandez-Morales’ estate, and Hernandez-Morales’ son’s mother, Veronica Ortega, acting as her son’s parent and natural guardian, sued Ali; the truck’s owner, Crown Container Co. Inc.; two entities that were believed to be affiliates of Crown Container and that were believed to have serviced the truck, Crown Container Transfer Station Co. Inc. and Crown Container Waste Services Corp.; an entity that maintained the truck, Advanced Fleet Maintenance Inc.; and the manufacturer of one of the truck’s safety devices, Electronic Controls Co. The plaintiffs alleged that Ali was negligent in his operation of the truck; that Crown Container Transfer Station and Crown Container Waste Services were liable because the accident occurred within the course of Ali’s work duties; that Advanced Fleet Maintenance, Crown Container, Crown Container Transfer Station and Crown Container Waste Services were negligent in their maintenance of the truck; that the negligent maintenance created a dangerous condition that contributed to the accident; that Electronic Controls’ safety component was defective; and that the defect contributed to the accident. Plaintiffs’ counsel contended that Ali negligently failed to shift the truck’s transmission from reverse mode before activating the power take-off unit. Plaintiffs’ counsel also contended that the truck should have had an alarm and warning lights that would have activated when the truck reversed, but that Crown Container had not installed such a system. They noted that the truck’s parking brake was engaged when the accident occurred. They claimed that the brake should have prevented movement of the truck, and they argued that it had not been properly maintained by Crown Container, Crown Container Transfer Station and Crown Container Waste Services. Plaintiffs’ counsel further noted that the truck’s assembly included a neutral interlock shutoff device, which prevents the truck from moving when the power take-off unit has been activated. They claimed that the device, which was manufactured by Electronic Controls, malfunctioned during the moments that preceded the accident. They also claimed that Advanced Fleet Maintenance had failed to detect a defect of the device. After the conclusion of plaintiffs’ counsel’s opening statement, the plaintiffs, Ali, Crown Container, Crown Container Transfer Station and Crown Container Waste Services negotiated a settlement. The settling defendants’ primary insurer tendered its policy, which provided $1 million of coverage, and the settling defendants’ excess insurer agreed to pay $550,000. Judge Arthur Schack directed a verdict that established that Electronic Controls was not liable for the accident. The trial proceeded against Advanced Fleet Maintenance. Advanced Fleet Maintenance’s counsel claimed that his client last serviced the truck some six months prior to the accident. He claimed that the truck’s neutral interlock shutoff device was functioning properly during the service check, and he suggested that a Crown Container employee may have subsequently disabled the device.

Hernandez-Morales sustained massive crush-induced injuries of his torso. The injuries included a rupture of his diaphragm, a fracture of his sternum, fractures of several ribs, and lacerations of his liver and spleen. He also sustained a fracture of one arm’s humerus. Paramedics arrived after some 12 minutes had passed. Hernandez-Morales was not breathing, and a pulse was not detected. Resuscitative efforts failed, and Hernandez-Morales was pronounced dead upon his arrival at a hospital. The plaintiffs’ expert pathologist estimated that Hernandez-Morales likely experienced two to three minutes of pain before permanently losing consciousness. However, the expert also opined that Hernandez-Morales may have remained conscious until the paramedics’ arrival. At the time of the accident, Hernandez-Morales was an undocumented worker earning about $600 a week. Plaintiffs’ counsel contended that Hernandez-Morales could have eventually increased his earnings by becoming a U.S. citizen and pursuing union affiliation. Hernandez-Morales, 22, died May 10, 2007. He was survived by a 2-year-old son, Alexander Hernandez. Hernandez-Morales’ estate sought recovery of wrongful-death damages that included a total of $3 million for Hernandez-Morales’ past and future lost earnings, a total of $4 million for his pain, suffering and fear of impending death, and $1 million for his child’s loss of parental guidance. The defense’s expert internist opined that Hernandez-Morales’ injuries caused an immediate loss of consciousness.

The jury found that Advanced Fleet Maintenance, Ali and Crown Container were liable for the accident. Advanced Fleet Maintenance was assigned 49.5 percent of the liability; Ali was assigned 1 percent of the liability; and Crown Container was assigned 49.5 percent of the liability. The jury determined that the plaintiffs’ damages totaled $7,208,000. After a reduction that reflected the settling defendants’ share of liability, the award totaled $3,567,960. That amount, plus the money recovered via the intra-trial settlement, totaled $5,117,960.

Alexander Ivan Hernandez: $2,000,000 Wrongful Death: Past Loss Of Parental Guidance; $1,000,000 Wrongful Death: Future Loss Of Parental Guidance; Estate of Ivan Hernandez-Morales: $168,000 Personal Injury: Past Lost Earnings Capability; $1,040,000 Personal Injury: Future Lost Earnings Capability; $2,000,000 Wrongful Death: Survival; $1,000,000 Wrongful Death: fear of impending death

Actual Award:

$5,117,960

Judge:

Arthur G. Schack

Demand:

$250,000 (total, by both plaintiffs, from Advanced Fleet Maintenance)

Offer:

$25,000 (total, for both plaintiffs, from Advanced Fleet Maintenance)

Trial Length:

16
 days

Trial Deliberations:

2
 days

Jury Vote:

6-0

Jury Composition:

3 male/ 3 female

Post Trial:

Schack denied Advanced Fleet Maintenance’s counsel’s motion for a new trial.

This report is based on information that was provided by plaintiffs’ counsel and counsel of Advanced Fleet Maintenance, Crown Container, Crown Container Transfer Station, Crown Container Waste Services and Electronic Controls. Additional information was gleaned from court documents. Ali’s counsel did not respond to the reporter’s phone calls.