Much ado, for good reason, has been made about the safety of the Brooklyn Expressway and its ancient, dilapidated state. Since the accident that claimed three generations of a family, the uproar to fix the road has grown to a fever pitch and the city has begun to install taller concrete barriers on the sides of the road, reports the Los Angeles Times .
Here is an excellent summary of the case for a personal injury claim against New York on behalf of the victims of a crash that killed three generations of a family in the Bronx.
Few though, are backing New York. Granted, no one, outside of the defense team, is going to argue that the road is safe. It is listed as one of New York's most dangerous roads. However, legally speaking, the city and state are not completely to blame.
Contributory negligence and comparative fault are two concepts that will come into play heavily, should a civil suit arise from this crash. Contributory negligence is a legal theory that states that if the person suing was at all at fault, they cannot recover. This applies even if they are one-tenth of a percentage at fault.
Fortunately, New York does not subscribe to that draconian theory. It is, as a brilliant Torts professor once stated, a "touchy-feely" state. Instead, they are ruled by the law of comparative fault. Should the case proceed to a judge or jury, the judge or jury will be instructed to assign percentages of fault to both parties. The plaintiff's recovery is reduced by whatever percentage that the jury assigns to her fault.
According to the Times, the driver, 45-year-old Maria Gonzalez, was travelling at an estimated 68 mph in a 50 mph zone. She clipped the center divider and may have overcorrected after experiencing tire failure. Her car hit the outside raised curb and flew over the side of the expressway.
The defense team will likely point to her speeding as a contributing cause. However, any fault she may have had in the accident will be mitigated in part by the traffic patterns of the street, which routinely run at 60 mph, and by the long and gruesome history of accidents and cars flying off the parkway.
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