On November 21, 2011 Attorney Roger H. Williams of Williams, Moliterno & Scully successfully tried to completion the above captioned matter before the Honorable Judge W. Wyatt McKay in the Trumbull County Court of Common Pleas, in Warren, Ohio.

This case arose out of a collision between cyclist, Thomas McCain and State Farm insured driver, Ralph Williams Jr., at the corner of Porter Road and North Park Avenue in Warren Ohio. On the morning of May 29, 2009, Mr. McCain and his brother, Lewis McCain, were riding their bikes on the sidewalk of North Park Avenue en route to their mother’s residence across town. When the two men arrived at the intersection of North Park and Porter Road, the plaintiff entered the pedestrian crosswalk of North Park Ave. Simultaneously, defendant Ralph Williams, who was attempting to make a right hand turn off Porter Road onto North Park, released his foot from the brake pedal, colliding with Mr. McCain. Mr. Williams immediately braked, but the impact knocked Mr. McCain, still mounted on his bicycle, to the ground. Mr. Williams pulled around the plaintiff and parked his vehicle nearby before speaking with Mr. McCain. He then provided the plaintiff with his name and phone number, and without contacting the authorities, both parties continued on their respective ways.

After leaving the scene, Mr. Williams called his insurance company, State Farm, to report the accident. On the advice of a State Farm agent, Mr. Williams presented to the Warren Police Department to file an accident report. When making his statement, Mr. Williams admitted that he could not recollect who was responsible for the accident. He stated that he did not know whether he had hit the plaintiff with his car or if the plaintiff cycled into his car.

After Mr. McCain and his brother left the scene, they finished the 2-mile journey to their mother’s residence. Upon arrival, they reported the recent events to their mother, and she urged them to call the EMS. By this point, Mr. McCain was experiencing intense pain in his left hip. An ambulance was called and the plaintiff was transported to Trumbull Memorial Hospital.

While Mr. McCain was examined in the ER, a Warren police officer came to take his statement. When relaying the events leading up to the accident, Mr. McCain inaccurately stated he and his brother had been cycling in the street, not the sidewalk.

At the Trumbull Memorial Hospital Emergency Room, Mr. McCain was examined for complaints of hip pain. CT scans and X-rays of Mr. McCain’s hip revealed a left femoral neck fracture, and the plaintiff was subsequently admitted to the hospital. Once admitted to Trumbull Memorial Hospital, orthopedic surgeon, Dr. Kenneth Jones, reviewed Mr. McCain’s films and recommended he undergo surgery. The plaintiff consented to surgery and the next day Dr. Jones performed a percutaneous left hip pinning, a procedure, which uses orthopedic screws to fix the hip back into normal anatomical alignment. The plaintiff tolerated the surgery well and he was discharged home on June 2, 2009.

In the months following surgery, Mr. McCain had a number of appointments with Dr. Jones to insure his left hip was healing properly. During his deposition, Dr. Jones stated he was extremely satisfied with the outcome of the surgery and gave Mr. McCain a good prognosis for full recovery. Mr. McCain did not attend physical therapy or rehabilitative services after the surgery, which Dr. Jones noted was not unusual, as with fractures of this type the need for physical therapy is assessed on a case-by-case basis.

The plaintiff claimed $25,274.50 in medical specials for the treatment of injuries sustained during the accident of 05/29/09. The majority of these charges were for Mr. McCain’s treatment at Trumbull Memorial Hospital between the day of the accident and his discharge on 06/02/09. The Robinson vs. Bates figure for the medical expenses was $13,399.26.  Prior to the trial, Attorney Williams made several compromise settlement offers, which the plaintiff rejected. Unable to arrive at a mutually agreed upon figure, the parties went to trial on November 21, 2011.

The issue at trial was determining to what degree the respective actions of the plaintiff and the defendant caused the 05/29/09 MVA. Neither the legitimacy of Mr. McCain’s injury, nor the suitability of resultant treatment were disputed. However, prior to trial, counsel for the defendant had filed a Motion for Partial Summary Judgment, citing the fact that the plaintiff was negligent per se, as he was operating a bicycle on a sidewalk in violation of the City of Warren Ordinance 373.10, which prohibits the operation of a bicycle on a sidewalk in a business district.  This Motion for Partial Summary Judgment was granted.  Thus, the jury was instructed that Mr. McCain was negligent per se.  Therefore they were asked to make a finding of the respective comparative negligence of the parties, and its relationship to the accident at issue.

However, the events surrounding the accident remained unclear. The sole witnesses to the 05/29/09 collision were plaintiff, Thomas McCain, his brother Lewis and defendant, Ralph Williams. As the plaintiff’s brother was not called to testify at trial, the jury had to make their determination based on the statements provided by the plaintiff and defendant.  When called to testify, the involved parties relayed conflicting accounts of the MVA. They each denied causing the accident and insisted negligence fell on the other party.

When called to testify on his own behalf Mr. McCain stated Mr. Williams attempted to make a right turn, through the crosswalk of Porter Road, despite the fact he must have seen him entering the crosswalk on his bicycle. The plaintiff asserted he had the right of way and proceeded into the crosswalk in accordance with traffic safety laws.  He also claimed that, following the collision, the defendant stated “I didn’t see you” several times, and in doing so had admitted negligence. Additionally, Mr. McCain stated that the accident caused functional damage to his bicycle, forcing him to walk the remaining two miles to his mother’s apartment.

 Mr. Williams repudiated each of Mr. McCain’s statements. He testified that he did not see the plaintiff prior to executing his turn, and that Mr. McCain must have bicycled into the path of his vehicle. He also stated that though he wasn’t sure if he was responsible for causing the accident when he made his police statement, after replaying the events in his head, he was certain Mr. McCain caused the accident. He steadfastly denied telling the plaintiff “I didn’t see you” when he approached him after the accident, and claimed Mr. McCain’s bicycle could not have been functionally damaged, as he witnessed Mr. McCain mount his bicycle and cycle away after their exchange. The police statements provided by Mr. Williams, at the Warren Police Department, and by Mr. McCain, at Trumbull Memorial Hospital, did nothing to clarify the issues at hand. As noted above, Mr. McCain’s police statement was decidedly inaccurate, and Mr. Williams could neither confirm nor deny he was at fault for the accident at the time he filed the police report.

Plaintiff’s counsel attempted to prove Mr. Williams’s negligence through the testimony of independent insurance adjuster, John Turner. Mr. Turner, who has served as an accident reconstructionist, but not in this case, provided diagrams of the scene of the accident, and claimed that based on statements provided by Mr. McCain he was reasonably certain that Mr. Williams caused the accident. However, on cross-examination, Mr. Turner admitted he had not performed the scene visit until August 2011, over two years after the MVA took place.  He also did not know whether traffic patterns had changed at the intersection during the interim period. Mr. Turner also acknowledged that his assessment was based upon Mr. McCain’s account of the accident, rather than first-hand knowledge.

Additional testimony for the plaintiff was supplied by Dr. Kenneth Jones, the orthopedic surgeon who treated Mr. McCain, in the form of a videotaped deposition. However, Dr. Jones was uninformed regarding the facts of the accident, and could only provide testimony relating to his treatment of Mr. McCain. As the defense willingly acknowledged, Mr. McCain’s injury was directly related to the MVA, this testimony did little to further the plaintiff’s case.  During his closing argument, plaintiff’s counsel asked the jury to return a verdict awarding the plaintiff full compensation for his medical bills and an unspecified award for pain and suffering.

At trial, Attorney Williams sought to establish that it was, in fact, Mr. McCain’s own inattention and disregard for basic traffic safety rules that led to the accident. He pointed out that Mr. McCain’s police statement regarding the events of the accident had proven erroneous, and suggested that because the facts of the accident remained unclear, the plaintiff could not conclusively prove the defendant alone was at fault. Additionally, Attorney Williams asked the jury to consider why the only individual who could corroborate Mr. McCain’s story, his brother, had not been called as a witness. The plaintiff must be held to his burden of proof Attorney Williams reminded the jury during his closing argument, and this burden had not been met.

It took the jury approximately 45 minutes to return with a defense verdict. The verdict has now been journalized and it does not appear that there are any appealable issues.

Should you have any questions regarding this case please contact Attorney Williams at his email address rwilliamsi@wmslawohio.com or through calling our toll free line.