MEMORANDUM
From: Kim Huggins
To: LAWS 2320 Torts Class
Date: January 20, 2022
Subject: M5 Discussion Negligence Claim
QUESTION PRESENTED: In the Cade Perry v. Sophia Turner case, under Nebraska Rule of Law, can a claim of negligence be filed against the defendant?
SHORT ANSWER: Yes, a claim can be filed, as the facts in the Cade Perry v. Sophia Turner case do constitute each element of the claim. Therefore, relief should be granted.
FACTS: On August 20, 2020, Sophia Turner (25) was driving west in the right-hand lane at 35 mph on West Centre Street. Turner received a cell phone call; however, she dropped the phone when she went to answer it. The phone fell on the passenger side floor. Turner leaned over to pick it up, taking her eyes off the road for a few seconds. When Turner looked up, she saw two boys laughing and pushing each other. One boy ran into the road and Turner instinctively swerved to the left to avoid hitting the boy.
Turner was unaware a car, driven by Emily Stone (29), was in the left-hand lane. Once Turner swerved her vehicle to the left, Stone’s vehicle struck the front quarter panel of Turner’s vehicle, causing Turner’s vehicle to spin 180 degrees. Stone lost control of her vehicle, veered to the right, and hit a traffic light pole on the northeast corner of the intersection of 144th Street and West Centre. The impact of the accident caused the traffic light pole to snap in two. Stone, who was not wearing a seat belt, was ejected from the vehicle on impact, landing in a parking lot to the immediate northeast of the intersection. Stone suffered an irreversible brain injury (brain death) and was placed on life support. After David Stone (Emily’s husband) consented to the removal of life support, Stone died at 6:05 p.m. that day from her injuries sustained from the accident.
At the time of the accident, Cade Perry (35) was crossing 144th Street, heading east. A section of the traffic light pole struck Perry, pinning him to the ground. Perry, who is a registered nurse, works for a small private practice pediatric clinic two blocks north of the 144th and West Centre intersection.
Perry underwent emergency surgery, which saved his life but left him a paraplegic. He is currently in a rehabilitation center, where he will likely remain another six months. Perry also sustained a head injury which left him blind in the left eye and with blurred vision in the right. He now has recurrent headaches and impaired cognitive and speech functions. Perry will need future plastic surgery to repair scars from the impact and scarring related to multiple surgeries to repair broken bones in his face.
Turner suffered a concussion, soft tissue injuries to her left arm and leg, minor lacerations, and two fractured ribs. She was transported by ambulance to the hospital and was treated and released that same day.
Finn O’Donnell (78) was the only witness to the accident and is a former Main County District Judge. He was traveling west on West Centre Street and was three cars behind Turner when the accident happened. O’Donnell almost collided with Stone, who according to O’Donnell, was weaving in and out of the right and left-hand lanes while traveling at a high rate of speed. O’Donnell saw Turner swerve to the left and saw the impact. He did not see the pedestrian, but he saw Stone eject from the vehicle. O’Donnell called 911 to report the accident.
The traffic light and pole at 144th and West Centre Street is owned by Stop N' Go, Inc. The City of Hometown contracts with Stop N Go to install, maintain, and repair the traffic light and pole. The City owns and maintains the right-of-way property on which the traffic light and pole are placed. The City also owns and controls the intersection cameras affixed to the traffic light poles. The traffic light pole was purchased from Valiant Traffic Poles, Inc., a company in Hometown. The manufacturer of the intersection streetlight is Valiant Industries, Inc., a foreign corporation (meaning, it is incorporated in a state other than Nebraska). The pole was installed February 1, 2015. It was installed with a breakaway base. Stop N Go conducts quarterly maintenance checks on poles, looking for corrosion and any visible issues requiring repair and replacement. The last inspection of the pole that was hit by Stone was completed April 1, 2020. The visual inspection showed the pole was stable and not compromised by corrosion or stress cracks.
Malisa McCarty, the first police officer at the scene of the accident, cited Turner for willful and reckless driving. Turner was later charged with motor vehicle homicide following Stone’s death. Turner has retained a lawyer to represent her in the criminal proceeding. After investigation of the case, Turner agreed to plead no lo contendere (no contest) to a lesser charge of careless driving. Under Neb. Rev. Stat. § 60-6,212 Careless Driving is defined as “Any person who drives any motor vehicle in this state carelessly or without due caution so as to endanger a person or property shall be guilty of careless driving.” Careless driving is a traffic offense. Turner was ordered to pay the maximum fine of $100.
DISCUSSSION: In this case, for an “actionable negligence claim to exist, the plaintiff must show a legal duty owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.” A.W. v. Lancaster County Sch. Dist., 208 Neb. 205, 210, 784 N.W.2d 907, 913 (2010).
As a driver, Turner had a duty of care to safely operate her vehicle while driving by keeping her eyes on the road. Turner breached her duty of care when she chose to take her eyes off the road for a few seconds by pick up her cell phone which had dropped on the passenger side floorboard
This action caused Turner to swerve into the left lane of traffic to avoid hitting a pedestrian who had entered the road and collide with Stone’s vehicle. By colliding with Stone’s vehicle, this caused Stone to lose control of her vehicle and hit a traffic light pole. The light pole snapped in two and a section of the light pole struck Perry, a nearby pedestrian. As a result, Stone was ejected from her vehicle and later died from an irreversible brain injury after being removed from life support. Perry’s injuries left him a paraplegic with additional head injuries including blindness in his left eye, impaired vision in his right eye, recurrent headaches and impaired cognitive and speech functions, and broken bones facial bones.
CONCLUSION: Based on the facts, Turner would be guilty of a prima facie case of negligence since all four elements have been met including duty of care, breach of care, causation, and damages.
MEMORANDUM
From: Kim Huggins
To: LAWS 2320 Torts Class
Date: January 20, 2022
Subject: M5 Discussion Negligence Claim
QUESTION PRESENTED: In City of Hometown v. Sophia Turner case, under Nebraska Rule of Law, can a claim of contributory negligence for damages to property be filed against the defendant?
SHORT ANSWER: Yes, a claim can be filed, as the facts in City of Hometown v. Sophia Turner case do constitute a claim of contributory negligence for damages to property. Therefore, relief should be granted.
FACTS: On August 20, 2020, Sophia Turner (25) was driving west in the right-hand lane at 35 mph on West Centre Street. Turner received a cell phone call; however, she dropped the phone when she went to answer it. The phone fell on the passenger side floor. Turner leaned over to pick it up, taking her eyes off the road for a few seconds. When Turner looked up, she saw two boys laughing and pushing each other. One boy ran into the road and Turner instinctively swerved to the left to avoid hitting the boy.
Turner was unaware a car, driven by Emily Stone (29), was in the left-hand lane. Once Turner swerved her vehicle to the left, Stone’s vehicle struck the front quarter panel of Turner’s vehicle, causing Turner’s vehicle to spin 180 degrees. Stone lost control of her vehicle, veered to the right, and hit a traffic light pole on the northeast corner of the intersection of 144th Street and West Centre. The impact of the accident caused the traffic light pole to snap in two. Stone, who was not wearing a seat belt, was ejected from the vehicle on impact, landing in a parking lot to the immediate northeast of the intersection. Stone suffered an irreversible brain injury (brain death) and was placed on life support. After David Stone (Emily’s husband) consented to the removal of life support, Stone died at 6:05 p.m. that day from her injuries sustained from the accident.
At the time of the accident, Cade Perry (35) was crossing 144th Street, heading east. A section of the traffic light pole struck Perry, pinning him to the ground. Perry underwent emergency surgery, which saved his life but left him a paraplegic. Perry also sustained a head injury which left him blind in the left eye and with blurred vision in the right.
Turner suffered a concussion, soft tissue injuries to her left arm and leg, minor lacerations, and two fractured ribs. She was transported by ambulance to the hospital and was treated and released that same day.
Finn O’Donnell (78) was the only witness to the accident and is a former Main County District Judge. He was traveling west on West Centre Street and was three cars behind Turner when the accident happened. O’Donnell almost collided with Stone, who according to O’Donnell, was weaving in and out of the right and left-hand lanes while traveling at a high rate of speed. O’Donnell saw Turner swerve to the left and saw the impact. O’Donnell did not see the pedestrian, but he saw Stone eject from the vehicle. O’Donnell called 911 to report the accident.
Stop N Go, Inc. is the owner of the traffic light and pole at 144th and W Centre Street. The City of Hometown owns the right-of-way property only. It contracts with Stop N Go to install, maintain, and repair the traffic light and pole. The City owns and maintains the right-of-way property on which the traffic light and pole are placed. The City also owns and controls the intersection cameras affixed to the traffic light poles. The traffic light pole was purchased from Valiant Traffic Poles, Inc., a company in Hometown. The manufacturer of the intersection streetlight is Valiant Industries, Inc., a foreign corporation (meaning, it is incorporated in a state other than Nebraska).
The pole was installed February 1, 2015. It was installed with a breakaway base. Stop N Go conducts quarterly maintenance checks on poles, looking for corrosion and any visible issues requiring repair and replacement. The last inspection on the pole that was hit by Stone was completed April 1, 2020. The visual inspection showed the pole was stable and not compromised by corrosion or stress cracks.
Malisa McCarty, the first police officer at the scene of the accident, cited Turner for willful and reckless driving. Turner was later charged with motor vehicle homicide following Stone’s death. After investigation of the case, Turner agreed to plead no lo contendere (no contest) to a lesser charge of careless driving. Under Neb. Rev. Stat. § 60-6,212 Careless Driving is defined as “Any person who drives any motor vehicle in this state carelessly or without due caution so as to endanger a person or property shall be guilty of careless driving.” Careless driving is a traffic offense. Turner was ordered to pay the maximum fine of $100.
DISCUSSSION: In this case, for a claim of contributory negligence to exist, under Nebraska Revised Statute 25-21,185, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence or act or omission giving rise to strict liability in tort of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff, and all questions of negligence or act or omission giving rise to strict liability in tort and contributory negligence shall be for the jury.
Prior to the accident, Finn had seen Stone weaving in and out of traffic, traveling at a high rate of speed. Although it was Stone’s vehicle which ultimately hit the light pole causing it to snap in two, with a section of the pole injuring Perry who was walking nearby, it was Turner’s vehicle which initially collided with Stone.
Turner chose to take her eyes off the road for a few seconds as she reached down to pick up her ringing cell phone that had dropped on the passenger side floorboard. When she looked up, a pedestrian had entered the road. Tuner had to swerve into the left-hand lane of traffic to avoid hitting the pedestrian. This action caused Turner to collide with Stone’s vehicle which was in the left-hand lane. This collision led to Stone losing control of her vehicle and hitting the light pole. Stone, who was not wearing a seat belt, was then ejected from her vehicle. The light pole snapped in two pieces and Perry was injured when a section of the pole pinned him to the ground.
CONCLUSION: Based on the facts, Turner would be guilty of contributory negligence for the damages to the traffic light pole owned by Stop N Go, Inc. and maintained by the City of Hometown, as it was her actions which lead to the vehicle accident involving Stone.
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