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New York state has been hit with a $42.4 million tort verdict in a case in which the state’s defense was severely limited by a judge because of alleged foot-dragging by the attorney general’s office. Judge Judith A. Hard of the Court of Claims said she refused to permit the state to present expert testimony regarding a tragic Thruway accident because the state’s lawyers, apparently assuming — wrongly — that the state would prevail on a collateral estoppel argument, neglected to follow her scheduling order. The case, Church v. New York State Thruway Authority, 92341, arose after a Dec. 26, 1992, tragedy when Barbara and Gilbert Church of Shelburne, Vt., were traveling to visit relatives. Their 9-year-old son Ned was buckled in the back seat. Mrs. Church, who was driving, fell asleep at the wheel and the car drifted off the road, eventually going over an embankment. Ned suffered severe injuries resulting in quadriplegia. Litigation ensued against several defendants, including New York state, on the theory that the roadway lacked a suitable guard rail. Judge Hard found the mother’s negligence minimal and said that if a proper rail had been in place it is likely the accident would have resulted in nothing more than property damage. Evidence showed that a guard rail was supposed to have extended to the point where the Volkswagen Jetta left the road, but did not. The state Thruway Authority had contracted with Callanan Industries Inc. to erect a rail under state highway standards, and it also had a contract with Clough Harbor & Associates, an engineering firm. Clough Harbor was hired to manage the project and ensure that Callanan performed the work consistent with the state’s specifications. Callanan subcontracted the work to San Juan Construction and Sales Co., but San Juan did not complete the job. Lawsuits against all the defendants progressed slowly for a decade. An initial Court of Claims case was conditionally dismissed. For several years, while the case proceeded in courts other than the Court of Claims, the attorney general was not involved and the file was essentially closed in the Department of Law. Meanwhile, in Supreme Court, Callanan Industries and San Juan Construction moved for summary judgment arguing that they owed no duty to the plaintiffs. Justice Joseph R. Cannizzaro of Albany Supreme Court denied the motion, leading to an appeal. The Appellate Division, 3rd Department, reversed in a 3-2 opinion, paving the way for an appeal by right to the Court of Appeals. The Court of Appeals, in Church v. Callanan Industries, 99 NY2d 104 (2002), unanimously affirmed. By the time the appeal reached the court, Callanan, Clough Harbor and third-party defendants had settled for a total of $8.8 million. The case against San Juan went to trial, and a $6.8 million verdict was rendered but never fully entered because the Court of Appeals case was pending. The matter re-emerged in the Court of Claims after a three-year hiatus, forcing the attorney general to quickly react to a case newly returned to the calendar. Judge Hard insisted that the state disclose its expert evidence within six weeks, a deadline that a veteran litigator, Assistant Attorney General Dennis M. Acton, did not meet. Acton maintained that in any case the claimant was collaterally estopped from pursuing an action against the state because of the unfiled Supreme Court verdict. Judge Hard suggested that Acton had procrastinated and essentially ignored her scheduling order on the assumption that he would prevail on the collateral estoppel argument. When he did not, Hard moved the matter to trial. She ruled that the state could not offer expert testimony on damages to counter that provided by the claimant’s counsel, Arthur H. Thorn of Thorn, Gershon, Tymann and Bonanni in Albany. “The Court was mindful of the significant impact that this ruling would have on defendant’s ability to present its case but in the circumstances saw no alternative,” Hard wrote. She found that the state had an obligation to ensure that the entire 312.5-foot guard rail was installed but said it was 100 feet short. “When a government entity properly develops a design plan for construction, the courts are to accept that plan as the standard to be met in either direction: compliance with the plan’s specifications entitles the defendant to immunity because it meets the standard, and non-compliance with plan’s specifications deprives the defendant of immunity, leaving it liable for injuries that are caused, at least in part, by the deviation from the plan,” Hard wrote. “There is no legal defense available to defendant in this case.” As for damages, Hard described a now 21-year-old quadriplegic who will be ventilator-dependent for the rest of his life, another 44 years according to a life expectancy calculation. Ned Church requires constant care and will have to rely on others for basic living activities, such as eating and bathing, and can never be alone, the court said. DELAY CRITICIZED Despite his physical limitations, Hard said, Mr. Church at the time of trial was a junior at the University of Vermont, majoring in psychology and minoring in English and art. She said he plans to become a counselor. The award includes $5 million for past and future pain and suffering, $34.4 million for lifetime care and assistance, $2.9 million for past medical expenses and $621,283 for loss of earnings. Gilbert Church, the father, was awarded $314,400 in a derivative claim. Hard was critical of the performance of the attorney general’s office. She said it was “improvident” for the state to delay its preparation for trial. She also criticized the “extremely sketchy” responses submitted by the state’s attorneys. Judge Hard said that at one point she asked why the defendant was so tardy in its trial preparation and was advised that the Thruway Authority was still “looking for papers.” Even the motion for summary judgment was late, she said. “In retrospect, the Court realizes that it should have refused to entertain the motion for summary judgment … despite defendant’s earnest, if ultimately inaccurate, assurances that the motion was meritorious and would obviate the need for trial,” she wrote. Michele Hirshman, the first deputy attorney general, said the state believes Hard’s decision on liability, not to mention damages, was wrong and it will be appealed. “That being said, it is also important to say the office takes extremely seriously our obligation to comply with reasonable court deadlines,” Hirshman said. “We certainly regret that a deadline was missed, and we don’t intend for that to happen again.” The attorney general is also appealing the collateral estoppel argument. Arguments are slated for Dec. 15 before the 3rd Department. Thorn said that even with an $8.8 million offset to account for the settlement, the award is apparently the highest ever in a Court of Claims case. Thorn said he is confident it will be upheld. Thorn said Mr. Church is now a college senior and will graduate with his class next year. “What a kid,” Thorn said. “I have known him for 10 years and I have never known him to be angry or bitter or hostile. He is just a fabulous young man. If he had not sustained these catastrophic injuries, who knows what he would have been.” Thorn said Ned and his parents forbade the attorney to focus on Ned’s limitations in arguing for damages, insisting that he concentrate on what Mr. Church will be able to do. The $621,283 award for loss of earnings, he said, is based on the assumption that Ned will work and earn. “The parents insist, and so does this boy, that he is going to become a professional and he is going to work,” Thorn said. “As a result, I think the wage loss claim is smaller than it might have been.”

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