Date of Verdict:  October 16.

Court and Case No.:  C.P. Philadelphia No. 101202055.
Judge:  Gregory E. Smith.

Type of Action:  Workplace negligence, motor vehicles.
Injuries:  Back and neck.

Plaintiffs Counsel:  Joseph F. Schwartz, Silver & Silver, Ardmore, Pa.

Defense Counsel:  Chilton G. Goebel III, German Gallagher & Murtagh, Philadelphia; Harold E. Viletto, Weinraub & Miller, Norristown, Pa.; David Ira Rosenbaum, Rawle & Henderson, Philadelphia.
Plaintiffs Experts:  Gerard Varlotta, physical medicine, New York, N.Y.

Defense Experts:  James Mackell Jr., orthopedic surgery, Doylestown, Pa.

Comment:  A Philadelphia jury has awarded $115,000 to a man who was injured riding in his car while it was being towed, alleging the method of towing the vehicle — connecting the car to a tow truck with two chains and pulling it — was dangerous.

On January 20, 2009, plaintiff Paulo Silva, 35, vice president of a bank’s information technology department, experienced a flat tire on his BMW Z3 automobile while in the Poconos, where he had a lake home.

Because he was a BMW owner, Silva was able to contact the roadside-assistance company Signature Motor Club, which then contacted a local towing service, FDR Holdings Ltd. Tow-truck driver Dennis Donagan was dispatched to Silva’s lake house in a four-wheel-drive dump truck, which reportedly was used instead of a conventional tow truck because the towing service did not have any other four-wheel-drive vehicles, and the small road leading to Silva’s lake home was icy.

Once arriving at the Silva residence, Donagan connected two chains — one 15 feet long and the other 12 feet long — and hooked the combined chains from the back of his truck to the front of Silva’s BMW. Donagan instructed Silva that he would pull the BMW, with Silva behind the wheel, from his home to the main road, while Silva steered the vehicle with its transmission in neutral. Silva’s daughter joined him during the trip, occupying the front seat.

About half-way into the 1.8-mile trip, the BMW reportedly hit a patch of ice, which caused it to slide off the gravel roadway and strike a tree on the front passenger’s side of the vehicle. Silva claimed that he suffered a C4-5 disc herniation during the accident.

Silva sued BMW (the claim against which was voluntarily dismissed early in the litigation), Signature Motor Club, FDR Holdings and Donagan. (Silva’s daughter reportedly suffered a head injury; she filed a separate suit, which concluded with a settlement involving confidential terms.)

Silva faulted FDR Holdings and Donagan for its dangerous, inappropriate method of towing Silva’s BMW, and for its failure to tow the vehicle via a flatbed truck, the specific towing mechanism as required by BMW. Silva’s counsel cited Donagan’s trial testimony, in which he indicated that he knew BMWs were supposed to be towed by flatbeds, but thought that using chains would suffice.

Silva’s attorney also criticized the rate of speed at which Donagan was traveling, given the icy road condition and his towing method: Silva testified that Donagan was traveling approximately 30 miles per hour in a 15-mph zone when the accident took place.

Silva further maintained that Signature had failed to properly train its subcontractors, such as FDR Holdings and Donagan, in safety procedures. Silva’s attorney pointed to Signature’s website, which outlined towing safety measures and contained materials and quizzes for users; it was argued that Signature did not require its subcontractors to take the quizzes. (Donagan had indicated he was not aware of the safety materials on Signature’s website.)

Counsel for FDR Holdings and Donagan asserted that Silva was comparatively at fault because he accepted the risk involved in Donagan’s towing method. According to Donagan, he was never initially told about Silva’s having a flat tire, and was under the impression that Silva was stuck in his development because of icy road conditions and simply needed assistance in getting out.

Because the road leading to Silva’s development was unpaved and hilly, Donagan claimed, when he initially received the dispatch request, he responded that he could not get his flatbed into the development because of the road conditions. However, he claimed he related, he could try to pull Silva out with a four-by-four truck and a chain, and Silva allegedly agreed to go along with that plan.

Donagan said his truck was in a very low towing gear at the time of the accident, and that he could not have been speeding. His and FDR’s attorney asserted that the chains became separated because Silva encroached on the truck and then panicked and cut his wheels too sharply, causing him to veer off the roadway and hit the tree.

Signature contended that Donagan should not have used chains to tow the BMW, but that, in any event, the terms of its contract meant that it was not responsible for the actions of independent contractors like FDR.

Two days after the accident, Silva, complaining of neck and lower-back pain, presented to a family physician, who referred him to a physiatrist in New York, where he worked.

Silva was put on a course of physical therapy and underwent an MRI that June, which, according to his physician, showed a C4-5 disc herniation. He was also diagnosed with cervical radiculopathy, which allegedly has caused radiating pain in his right (dominant) arm. Silva underwent trigger-point and Botox injections to his cervical spine. He continued pain-management treatment through February 2010, when he was involved in a rear-end motor-vehicle accident. Silva claimed that the second collision did not significantly exacerbate his neck injury. However, after that accident he increased his treatment, which at that point incorporated epidural injections. Silva’s suit sought to recover a health-care lien of approximately $6,800, as well as roughly $4,000 in out-of-pocket expenses.

In his videotaped deposition, Silva’s treating physiatrist causally related Silva’s injuries and treatment to the accident involving Donagan. The doctor opined that the subsequent rear-end accident had aggravated Silva’s injuries, but that it was a minor aggravation. The physician further explained how anything could have exacerbated his condition, such as sleeping or carrying his children. It was the physician’s theory that Silva’s current condition originated from the accident involving Donagan, and that Silva would possibly require a cervical discectomy in the future.

In the summer of 2009, Silva was laid off from his banking job. He claimed that his injuries prevented him from obtaining another job for comparable pay. (He eventually went back to work in October 2011.) His suit also sought to recover $317,000 in damages for lost wages.

Silva contended that he continues to experience pain and limited range of motion in his neck. He has trouble with heavy lifting, he claimed, and has been forced to cut back on physical pastimes, such as riding dirt bikes. Silva also testified that he had to put his computer screen on a stack of books at work so he did not have to bend his neck. Silva was still taking medication and receiving injections as of the time of trial. His suit sought to recover unspecified amounts of non-economic damages, for past and future pain and suffering, while his wife sought damages of loss of consortium. (Silva further claimed that he suffered emotional distress as a result of seeing his daughter get hurt.)

An expert in orthopedic surgery retained by the defense opined that Silva had only suffered a cervical strain and sprain as a result of the subject accident, and had made a full recovery. The physician pointed to MRIs taken in May 2011 and February 2012, which apparently showed no cervical herniation. Moreover, the subsequent rear-end accident did further aggravate Silva’s condition, according to the expert.

The jury of eight people deliberated for three-and-a-half hours before finding that FDR Holdings and Donagan had been 100 percent at fault with respect to the accident.

The jurors also determined that Silva had himself been negligent, but that his negligence was not a factual cause of injury.

No negligence was found as against Signature.

— This report first appeared in
VerdictSearch Pennsylvania, a publication of ALM •