ESCOTT v. EARLY

TOOMEY, JUSTICE.

On October 26, 1995, plaintiff brought his complaint in the Dudley District Court asserting that, on March 6, 1990, defendant had negligently operated her motor vehicle and thereby caused him injury and loss. After trial, the District Court, Reynolds, J. sitting without jury, entered judgment, on June 18, 1998, in favor of plaintiff in the amount of $12,000.00, plus interests and costs.

Defendant removed the matter to the Superior Court on June 23, 1998, and defendant, having omitted to claim her jury trial right in that court, was deemed to have waived her right to trial by jury. The matter was called for trial on October 25, 2000, and, based on the evidence there adduced, the Court enters the following findings of fact.

1. The incident giving rise to the cause of action occurred on March 6, 1990, at which time plaintiff was thirteen years of age.

2. Plaintiff was in the front yard of his home located at the intersection of State Street and George Street in Oxford, Massachusetts.

a. State Street ran north and south along the west side of plaintiff's home.

b. George Street ran east and west along the front (south) side of plaintiff's house.

c. Defendant resided on George Street, a few lots east of plaintiff's residence.

d. A telephone pole was located at the west side of the State/George intersection and bore a sign that read "Slow, Children, 20 MPH." The sign faced north.

e. A mailbox was located on a pole in front of plaintiff's house on the north side of George Street.

f. The slope from plaintiff's home to George Street was about five degrees and the distance from the home to George Street was twenty-six and one half feet.

g. Nothing obstructed the view of a motorist, travelling on either State Street or George Street, of the front of plaintiff's home and the slope to George Street.

3. Precipitation had ceased at about 12:00 p.m. on March 6 and snow had accumulated in the area to a depth of about three inches.

4. Plaintiff commenced sledding down the hill that fronted his house at about 3:30 p.m. Before each run he looked east and west. He made four runs successfully, although, on one or two occasions, he waited for cars operating on George Street to pass out of range. On none of the four runs did his sled progress onto George Street.

5. As he commenced his final run, he again surveyed the field and saw no vehicles. When part way down the slope, he saw defendant's vehicle proceeding, at about twenty miles per hour, east in the west bound (north) side of George Street. As he passed the mailbox, he reached out grabbing it, and his legs swung to the right, coming to a halt two to three feet into the west bound (north) lane of George Street.

6. Defendant had observed plaintiff at the top of the slope and "slowly" engaged her brakes as she proceeded on George Street. The driver's side rear tire of her vehicle struck plaintiff's right ankle. When she stopped and exited from her vehicle, defendant found plaintiff lying in the middle of the westbound (north) lane of George Street.

7. The point of impact was approximately 175 feet from the intersection of George and State Streets.

8. George Street had been sanded but not plowed before the accident.

9. Plaintiff suffered a fractured right ankle, which was addressed by a closed reduction, and was hospitalized for two to three days. He wore a full leg cast for forty-five days and a short walking cast for thirty days thereafter. He last saw a doctor for the ankle injury in October, 1990.

10. Plaintiff experienced some skin damage from the castings and walked with a limp for a period of time after the last cast was removed. He was absent from school for four class days and was unable to compete in Spring baseball or Fall football activities in 1990. He still experiences discomfort when he plays hockey or stands for extended periods.

11. Plaintiff was inducted into the US Army, served from 1995-1998, and was unimpeded in his military duties by his ankle injury. At present, he plays hockey, baseball and basketball without significant compromise by reason of the ankle injury.

12. Plaintiff's medical expenses, incurred as a result of the accident and hereby determined to be incurred in the course of reasonable treatment and reasonable in amount, totalled $4,423.20.

The submissions offered at trial persuade this Court, by a fair preponderance of the admissible evidence, that defendant had a duty of care toward plaintiff, that she breached that duty of care by the manner in which she operated her motor vehicle and that her breach was a substantial contributing factor in plaintiff's experiencing injury and loss. While plaintiff's injuries and losses were neither extreme nor persistent, this Court deems them to be appropriate for an award of money damages.

Those damages shall be calculated as follows:

Medical Expenses . . . . . . . . . . . . . . . . . . $ 4,423.20

Pain and Suffering . . . . . . . . . . . . . . . . . $10,000.00 ___________ Total $14,423.20

The Court also finds that plaintiff was comparatively negligent in the manner in which he operated his sled and that such negligence was a substantial contributing factor in his experiencing injury or loss. The Court is convinced, by a fair preponderance of the evidence, that plaintiff's comparative negligence was 10% and that defendant's negligence was 90% of the total negligence that occasioned plaintiff's injury and loss. Accordingly, plaintiff's money damages shall be reduced by 10% ($1,442.32) with the result that plaintiff's total money damages award will be $12,999.88.

Judgment shall enter for plaintiff in the amount of $12,999.88 plus interest from October 26, 1995 (the date plaintiff's complaint was filed in the Dudley District Court) and plus costs of $142.10 incurred by plaintiff in the District Court proceedings.

______________________________ Daniel F. Toomey Justice of the Superior Court