A plaintiff whose annual earnings actually increased by hundreds of thousands of dollars after an auto accident was awarded $3.6 million for economic losses. In a strange twist, this award for economic losses followed a summary judgment granted to the public entity defendant barring the plaintiff’s claim for non-economic losses/pain and suffering.
The case arose out of an auto accident on a New Jersey State highway. The plaintiff sued the driver who caused the collision as well as the State and its Department of Transportation employee. The trial proceeded against the State and its employee after the plaintiff settled with the defendant driver with a liability finding of 60% on that driver and 40% on the State. The molded verdict resulted in an award against the State of $1.44 million.
The plaintiff alleged that he sustained a traumatic brain injury in the accident. However, the Court found that he did not vault the bar of a permanent loss of a substantial bodily function as required by the New Jersey Tort Claim Act for a claim against a pubic entity. Indeed, the evidence showed that he was able to fully function at home and at work. While he claimed that he had some cognitive impairments, the Court expressly found that he was able to function very well in his chosen profession – securities trading.
Notwithstanding the fact that he was not able to pursue non-economic damages for his alleged brain injury, the court permitted the case to go forward on the issue of economic damages. The plaintiff had earned over $800,000 the year prior to the accident and over $500,000 in the five months just prior in structured finance. He had resigned from that post just days before the accident to work as a trader in asset-backed securities. In that position, his earnings increased to $1.4 million in the next three years.
With increased earnings and no significant injury, the plaintiff was nonetheless able to convince a jury that his earning potential was diminished as a result of his cognitive impairment. Over net opinion objections by the defendant, the plaintiff’s expert testified that worker’s of his age with a professional degree and cognitive impairment earn 6.1% less and retire 7.1 years earlier than their counterparts with no injury. He estimated the plaintiff’s loss at $6.4 million.
Despite the fact that this plaintiff’s income was in the top 99% of workers and he was earning more after an injury not significant enough to permit recovery for non-economic losses, the Appellate Division affirmed the award.
See Knitowski v. Gundy, http://www.judiciary.state.nj.us/opinions/a5945-09.pdf
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