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Dombroski v. City of Atlantic City

February 23, 1998


Argued January 21, 1998 Before Judges Long, Kleiner & Kimmelman. On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

The opinion of the court was delivered by: The opinion of the court was delivered by Long, P.j.a.d.

[9]    On July 28, 1993, plaintiffs John and Marilyn Dombroski filed this negligence action as a result of injuries sustained when plaintiff, John Dombroski was struck by a bus while crossing an intersection in Atlantic City. His wife sued per quod. *fn1 Defendants are Frederick V. Maxson, the driver of the bus; Lion Corporation, Inc., Maxson's employer; and the City of Atlantic City. Plaintiffs charged Maxson and Lion Corporation, Inc. with the negligent ownership, operation and control of the bus as well as negligent hiring. Atlantic City was charged with improper design and negligent maintenance of the crosswalk.

Atlantic City filed an answer denying the allegations of the complaint, asserting several defenses, and seeking contribution and indemnification from the other defendants. Maxson and Lion Corporation, Inc. subsequently settled with plaintiff for two million dollars.

The case against Atlantic City was tried before Judge Michael W. Winkelstein and a jury on March 18, 1996. The following facts were established at trial: On August 5, 1991, plaintiff was visiting Atlantic City. He was dropped off by a bus at the Atlantic City Bus Terminal and then walked from the terminal to the intersection of Atlantic Avenue and Missouri Avenue. He started to cross Atlantic Avenue on the green light. At this intersection there is a diagonal crosswalk that leads from the corner where plaintiff was standing to the opposite corner. In crossing, plaintiff walked to the left of the diagonal crosswalk. He was approximately halfway across when the bus operated by Maxson, which was turning left onto Atlantic Avenue, struck him. *fn2 The bus rolled over plaintiff's legs and ankles. After plaintiff twice yelled to the bus driver, the bus backed off his legs. Plaintiff never lost consciousness.

Five physicians testified on behalf of plaintiff at the first trial. Dr. John Esterhai, an orthopedic surgeon treated plaintiff for the injuries he sustained from the accident which were a fractured left shoulder, right tibia and left ankle. Esterhai testified that: 1) plaintiff has to restrict walking as much as possible, and if walking for longer than ten minutes he must use a wheelchair; 2) plaintiff is at risk for further injury because of the injuries to his lower extremities; 3) plaintiff experienced "severe physical pain" associated with the crush injury to his leg, the acute fracture to his shoulder and the damage to his ankle; 4) plaintiff continues to have pain as he is unable to move his upper left extremity and continues to have pain in his ankle; and 5) plaintiff has "permanent partial physical impairments."

Dr. Seth Braunstein, a physician at the Hospital of the University of Pennsylvania, testified that: 1) he has treated plaintiff for diabetes since 1982, but this condition was under control; 2) the injuries plaintiff sustained in the accident aggravated his diabetic condition since he is unable to exercise, resulting in weight gain; 3) there is a "high probability" that sometime in his life plaintiff will require an amputation of his left lower extremity; 4) had the accident not occurred it is "very unlikely that he would require amputation of his lower extremity;" and 5) prior to the accident plaintiff was an upbeat active individual but now is more introverted, less outgoing and less joyful.

Dr. Lloyd Brotman, a psychologist, testified that: 1) he first saw plaintiff three years after the accident; 2) plaintiff had become depressed, had gained weight because he was unable to exercise and had difficulty sleeping; 3) plaintiff was experiencing an "adjustment disorder with a depressed mood;" and 4) plaintiff had undergone the process of psychosocial acceleration. *fn3

Dr. David Sagransky, a specialist in internal medicine and rheumatology evaluated plaintiff two times after the accident and testified that: 1) plaintiff suffered severe damage to three of his four extremities since only his right arm was uninjured; 2) plaintiff was in constant pain and will always be in pain; 3) plaintiff has limited mobility of his left arm which is a permanent condition; 4) plaintiff's left ankle joint has been destroyed due to an infection leaving it permanently inflamed; 5) plaintiff's right ankle and knee are arthritic; and 6) plaintiff should be restricted to a wheelchair because the weight bearing on his knees and feet will wear out his joints.

Dr. Frederick Nahas, a general and vascular surgeon, discussed all the medical procedures plaintiff underwent during his hospitalization. Nahas testified that: 1) plaintiff's liver and spleen were repaired; 2) a fasciotomy was performed on his right leg to remove dead muscle tissue; and 3) skin grafts were performed. Nahas also testified that there is a reduced blood flow to plaintiff's legs which is associated with crush injuries to the lower extremities and that plaintiff is "quite likely" to undergo an amputation. In total, plaintiff was hospitalized 58 days.The effect of the accident on plaintiff's life was also established at trial. Prior to the accident, he was an active individual who enjoyed playing the guitar, hiking and other outdoor activities, and overall had an active social and work life. Since the accident he is more introverted, less outgoing and less joyful. Not only is he unable to use his left arm effectively, he must wear a brace to support his ankle, use a cane to help him walk and utilize a wheelchair if he is to walk longer than ten minutes.

Plaintiff's wife testified as to her loss. She and plaintiff used to take martial art classes, hike and walk the beaches together. Since her husband no longer can function in the same manner, the accident has had a dramatic effect on her.

Prior to the accident plaintiff was employed by Cigna Insurance Company as an audio-video production manager. Thirteen months after the accident he returned to the same position. Cigna has provided reasonable accommodations for him by allowing him to sit for most of the day. Plaintiff has received positive reviews since returning to work. Despite his impairments, he not only has returned to his previous position with no decrease in earnings, but in fact, has received periodic increases in wages since the accident. At trial, plaintiff attempted to adduce the opinion of an expert to support his claim for diminished earning capacity. After N.J.R.E. l04 hearing, the evidence was disallowed.

The jury returned a verdict assessing liability for the accident as follows: plaintiff (5%), Maxson and Lion Corporation, Inc. (80%), and Atlantic City (15%). Plaintiff was awarded $150,000 for his pain and suffering and his wife was awarded $50,000 for her consortium loss. The verdict was then molded to reflect the fact that Atlantic City had been found 15% responsible with a final judgment entered for $22,500 and $7500, respectively.Plaintiffs then filed a motion for a new trial on damages or additur which Atlantic City opposed. The trial Judge granted this motion on April 12, 1996 as to both plaintiff's pain and suffering damages and his wife's consortium damages. Atlantic City then filed a motion for leave to appeal from this order which was denied on May 31, 1996. Atlantic City also filed a motion for stay of the damages trial pending appeal which was denied on June 7, 1996.Prior to the second trial, plaintiffs filed two motions with Judge Carol E. Higbee before whom the retrial on damages was to take place. The first motion sought an order permitting an expert to offer testimony as to John Dombroski's diminished earning capacity which testimony had been precluded at the first trial. The Judge denied this application. Plaintiffs' second motion sought an order that the jury be informed of the assessment of percentages of liability from the first trial. The Judge granted this motion. In response, Atlantic City filed an emergent application for leave to appeal from this order. Another panel of this court granted the motion for leave to appeal on November 1, 1996 and summarily reversed the trial Judge's order with instructions that the jury not be informed of the prior allocation of liability.

The second damages trial commenced on November 4, 1996 before Judge Higbee and a jury. The evidence adduced as to damages at the second trial mirrored that which was adduced at the first except that Dr. Sagransky's testimony was omitted. The jury returned a verdict of $975,000 for plaintiff and $120,000 for his wife which was entered as a final judgment on November 18, 1996. Judgment was molded to reflect the prior assessment of liability for Atlantic City at 15%. Thus, Atlantic City was assessed at $164,250. Plaintiffs then filed a motion for a new trial on damages or additur which the court denied.

Atlantic City filed a notice of appeal, challenging the grant of plaintiffs' original motion for a second trial on damages. Plaintiffs then filed a notice of cross-appeal, challenging 1) the denial of their motion to admit their expert's testimony; 2) the denial of their request to instruct the second jury as to the prior assessment of liability; and 3) the denial ...

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