February 9, 2016, PLLR E-Newsletter
Bus’s side-view mirror blocked view of pedestrian, leading to collision
The plaintiff sued a transit authority, alleging that its driver was negligent in failing to keep a proper lookout and yield to a pedestrian. Suit against the bus manufacturer alleged that the bus’s mirror needlessly obstructed the driver’s view. Chin v. Southeastern Pa. Transp. Auth.
Steven Chin, 25, was crossing a city street in an intersection crosswalk when a bus operated by Southeastern Pennsylvania Transportation Authority (SEPTA) struck him. Chin fell to the pavement, and the bus’s wheel ran over his right foot.
Chin sustained degloving and crush injuries to his foot and ankle, including multiple fractures, extensive soft-tissue injuries, and a total loss of the skin over a large portion of his foot and ankle. The degloving injuries prevented doctors from performing internal fixation, and Chin underwent external fixation of the fractures. His parents moved to the area and rented a house where they could care for him after he was discharged from the hospital. His mother dressed his wounds on a daily basis for four months, after which his sister assumed daily care responsibilities.
As a result of extensive scar tissue and injuries to his muscles, tendons, and ligaments, Chin is severely limited in his ability to move his ankle. His ankle and foot are stuck in a downward position, causing an impaired gait that places stress on his right knee, hip, and back. At the time of the incident, Chin was a runner on his college cross-country team. He was forced to give up running, and he suffered depression over losing his identity as an athlete and having to depend on his parents. He now works as an airline runway agent, but he requires prescription pain medication for his foot, which is swollen and painful at the end of the workday. In addition, he may develop arthritis in his knee and hip as a result of his altered gait.
Chin sued SEPTA, alleging that its driver was negligent in failing to keep a proper lookout and yield to a pedestrian in the intersection. He also sued the bus’s manufacturer, New Flyer of America, Inc., alleging strict liability and negligence claims. Among other things, the plaintiff contended that the position of the bus’s driver-side rear-view mirror needlessly obstructed the driver’s view. Chin contended that the mounting height of the mirror essentially blocked visibility over the top of the mirror.
SEPTA settled before trial for $250,000—the limit of its liability as a governmental entity—and the case went to trial against New Flyer, with SEPTA remaining on the verdict form. Chin contended that SEPTA had directed New Flyer to position the driver’s mirror in a way that minimized blind spots, but the manufacturer failed to do so. The plaintiff’s expert testified that the company failed to test or use any accepted methodology when determining the mounting height of the mirror and that, had it been just four inches lower, the driver would have seen Chin in the crosswalk. A New Flyer witness admitted that the roadside mirror height was six inches higher than that of other transit company buses.
New Flyer denied that the bus was defective and argued that the driver was solely at fault for failing to use the “rock-and-roll” method in which drivers are trained, which requires them to bend forward, backward, and side-to-side when making a left turn and to look around the mirror to eliminate the visual obstruction it created. SEPTA witnesses denied that the mirror was defective or that it played a role in any accidents as it was the driver’s responsibility to “rock and roll.” Two years after Chin’s accident, however, SEPTA commissioned an outside agency to study the mirrors and their mounting position. The study recommended that the mirrors be lowered four inches or, in the alternative, that a mirror four inches shorter should be used. After the study, SEPTA accepted the recommendation and replaced the mirrors on all New Flyer buses with shorter mirrors, which dramatically improved visibility.
The jury found that New Flyer was negligent and awarded $5 million in noneconomic damages, allocating fault at 75 percent to SEPTA and 25 percent to New Flyer. After allocation of fault, New Flyer is responsible for $1.25 million. Post-trial motions are pending.
Citation: Chin v. Southeastern Pa. Transp. Auth., No. 130900933 (Pa. Ct. Com. Pleas Phila. Cnty. Dec. 14, 2015).
Plaintiff counsel: AAJ member Mark J. LeWinter and Joseph Z. Traub, both of Philadelphia.
Plaintiff experts: Tom Flanagan, vehicle design, San Diego; Joshua Cohen, video/digital photo analysis, Portland, Ore.; and Steven Raikin, orthopedic surgery, Guy Fried, physical medicine, and Patrick Greany Jr., plastic/reconstructive surgery, all of Philadelphia.
Defense experts: Lance Watt, mechanical engineering, Lancaster, Pa.; Jeremy Bauer, biomechanics, Corvalis, Ore.; and Richard Mandel, orthopedic surgery, East Norristown, Pa.