$1.1 Million Settlement

 

Date of Verdict:

 

October 11.

 

Court and Case No.:

 

C.P. Mercer No. 2009-4727.

 

Judge:

 

Mediation.

 

Type of Action:

 

Personal injury.

 

Injuries:

 

Right tibia-fibular compound fracture, severe shoulder strain, severe neck strain, pleural effusions, depression.

Plaintiffs Counsel:

 

Wayne M. Chiurazzi, Katie A. Killion, Chiurazzi & Mengine, Pittsburgh.

 

Defense Counsel:

 

Stephen J. Magley, O’Malley and Magley, Pittsburgh; John A. Robb Jr., Robb Leonard Mulvihill, Pittsburgh.Comment:

 

A Pennsylvania woman who sustained serious injuries in a car accident in which the driver had a learner’s permit has settled for more than $1 million.

 

Pittsburgh attorney Wayne M. Chiurazzi, who represented plaintiff Helen R. Moss, reported the $1.1 million settlement after the matter went through successful mediation in October. Moss worked at defendant Jean M. Daffin’s candy store and also did household chores and driving for Daffin, according to defense counsel.

 

Daffin’s daughter, defendant Diane M. Daffin, was driving on the day of the accident under the supervision of her mother. At about 10 a.m. that morning, Moss’ amended complaint alleges, Diane Daffin had an epileptic seizure while driving. Then, later in the day, with Moss as a passenger, the plaintiff alleged Daffin had another seizure.

 

But the daughter’s attorney said there was never any evidence Daffin had even one seizure that day — she has never been diagnosed with epilepsy nor were any medical tests done to conclude a seizure occurred the day of the accident. That allegation was also denied in Daffin’s response to Moss’ amended complaint.

 

Attorney Stephen J. Magley pointed to a host of injuries that required Moss to have invasive treatments for about a year after the accident and wear an external fixator on her leg as reasons why Moss v. Daffin was settled outside of court.

 

“That’s why this case settled,” Magley said. “Liability was there.”

 

According to the complaint, the plan on the day of the accident was for Diane Daffin to drive to a local shopping mall and then Moss would take the car and do housekeeping for Jean Daffin while the mother and daughter shopped.

 

When Moss returned, the complaint says, Diane Daffin took back over as driver.

 

It was then that Daffin had her second seizure of the day, according to the complaint.

 

But Magley said the plaintiff made the allegation on the basis of her interpretation of Daffin’s behavior. As Magley put it, Moss said that Daffin got “that look she gets.”

 

He said there was never any concrete finding about why Diane Daffin lost control of the car. But that fact went undisputed. Magley added that Jean Daffin was not a licensed driver, meaning that Moss was legally the only one who could supervise Diane Daffin as a permitted driver.

 

Unable to control the car and with the gas pedal pressed to the floor, Diane Daffin drove the car off the road, crashing the car into two trees before coming to a halt. Moss sustained several serious injuries, including a compound fracture in her right leg, a severe shoulder strain, a severe neck strain, pleural effusions and depression.

 

Magley said Jean Daffin, but not Diane Daffin, sustained injuries.

 

Moss pled two counts of negligence: one against Diane Daffin, who is now an adult, and the other against Jean Daffin, for allowing her daughter to drive under her condition with Moss in the car.

 

“Despite defendant Jean M. Daffin’s personal knowledge of defendant Diane M. Daffin’s peculiar condition, she still allowed … Diane M. Daffin as a learner’s permit-only driver to operate a motor vehicle in which the plaintiff was a passenger,” the complaint said, citing Section 319 of the Restatement (Second) of Torts.

 

That section provides “one who takes charge of a third person whom [s]he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent [her] from doing such harm.”

 

A comment to that section said the section applies to a situation where an actor has charge of a third person “‘who has a peculiar tendency to act [injuriously],’” the complaint said.

 

In addition to the two negligence counts, the plaintiff added a count for joint and several liability.

 

Diane Daffin had initially denied liability in court papers, but Magley said she was pleased with the settlement.

 

“I think we’re pleased with the settlement,” Magley said. “It was an unfortunate, unfortunate accident.”

 

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.