On November 13, 2010, Ralph Destino was involved in a motor vehicle crash in which his vehicle collided with a state trooper’s vehicle at a T intersection in Niagara County. Mr. Destino sustained shoulder injuries.
In the ensuing lawsuit, the Court of Claims judge determined that the trooper, who’d been on his way to provide backup to a domestic situation with firearms present, was involved in an emergency operation as defined by Vehicle and Traffic Law Section 1104 and, as such, liability against the state could only be imposed if his conduct rose to the level of recklessness.
After hearing testimony from both drivers and others, the judge issued a decision holding that the trooper demonstrated reckless disregard for the safety of others based upon his continued rate of high speed as he approached the intersection on wet pavement in dense fog and for his failure to stop and be certain that the intersection was clear before turning left. The judge also found however, that the claimant was comparatively negligent because he was going too fast under the circumstances. The judge concluded that liability should be apportioned between the parties with 75% liability against the state and 25% liability against the claimant.
A separate damages only trial was held following which the judge determined that the claimant, 46 years old at the time of the accident, was entitled to an award (before a 25% reduction for his share of liability) of pain and suffering damages in the sum of $550,000 ($300,000 past – 10 years, $250,000 future – 23 years).
Both parties appealed contending that the liability determination was not supported by a fair interpretation of the evidence. In Destino v. State of New York (4th Dept. 2022), the judgment was affirmed.
Here are the injury details:
- torn labrum in shoulder causing pain and significant limitations and requiring arthroscopic surgery to repair
- post-traumatic arthritis of the acromioclavicular joint with development of ganglion cysts
- permanent and significant limitations of range of motion in shoulder
- Claimant had a 15 year history of shoulder pain before this accident for which he underwent rotator cuff surgery in 2009. The judge found that claimant recovered fully from that surgery and was asymptomatic before this 2010 accident.
- There was no award for medical expenses or lost wages as claimant presented no supporting proof.