The Nebraska Injury Law Report

From the December 16th Sunday Omaha World Herald:

State rejects blame for stoplight problem
BY MARTHA STODDARD
WORLD-HERALD BUREAU

LINCOLN — The State Roads Department has changed nothing in its procedures for dealing with traffic signal problems since a malfunctioning signal cost a Schuyler youth his ability to walk, use both arms, see clearly and live independently.

The accident also is costing the state $9.9 million, a record amount for an injury lawsuit in Nebraska. The settlement was announced last week.

Mary Jo Hall, spokeswoman for the Nebraska Department of Roads, said roads officials continue to believe they did everything they could to prevent the Valentine’s Day 1999 accident.

“We stand by our safety methods, our procedures, and always ask that people drive carefully,” Hall said.

While the Roads Department says it did nothing wrong, two state lawmakers question the department’s response. The attorney for the victim is contending that the state is not following nationally accepted protocols.

In July, the Nebraska Supreme Court ruled that the Roads Department was at fault for not fixing the traffic light at the intersection of U.S. Highway 30 and Nebraska Highway 15 in Schuyler, despite repeated complaints that it flashed green in conflicting directions at the same time.

Jacob Wagner, then 16, was driving his car south when a westbound semitrailer truck owned by Metz Baking Co. hit him. Witnesses said the light was displaying green to both southbound and westbound traffic when the crash occurred.

After losing before the Supreme Court, the state settled with Wagner and his mother, Gail Fickle, on compensation for Wagner’s injuries.

The $9.9 million settlement will come out of the Roads Department’s state funds, which come from fuel taxes, sales taxes on motor vehicles and motor vehicle registration fees.

Wagner suffered severe brain damage. After years of therapy, he remains unable to walk. He has no use of one arm and limited use of the other. He has double vision and difficulty speaking.

State Sen. Arnie Stuthman of Platte Center, vice chairman of the Legislature’s Transportation and Telecommunications Committee, said the Roads Department’s failure to change procedures concerns him.

After getting multiple reports of problems, the department should have done more to find out why there was a malfunction in the traffic light, he said.

“In my opinion, the state should make sure that they (the lights) work and really monitor them,” Stuthman said.

Another committee member, Sen. Dwite Pedersen of Omaha, said the Roads Department should be looking into what went wrong and who dropped the ball. Ultimately, he said, the responsibility lies with the Governor’s Office, which oversees the department.

Hall said that because the department believes there was no wrongdoing on its part, no disciplinary action was taken against any employee.

Jen Rae Hein, a spokeswoman for Gov. Dave Heineman, offered no additional comments to those from the roads officials.

She referred questions to state Risk Manager Laura Peterson, who said: “I think we would categorize this as an extraordinarily unfortunate accident, but not a failure of the system.”

Sen. Deb Fischer of Valentine, chairwoman of the Transportation Committee, said she doesn’t know the specifics of the Wagner case but her experience has been that the Roads Department is responsive to citizens’ concerns.

Wagner’s family also settled with the City of Schuyler and with the trucking company, bringing the total settlement to more than $10 million. Lincoln attorney Doug Peterson said confidentiality agreements bar him from revealing the exact figure.

The $9.9 million portion appears to be a record for an injury lawsuit against the state, said both Doug Peterson and Laura Peterson, who are not related.

State officials agreed to the settlement after the Nebraska Supreme Court refused the state’s motion for a rehearing in the case.

In the trial, four members of the public said they noticed the malfunctioning light in 1998 and 1999 and reported it to the state. A Roads Department employee confirmed receiving two of those complaints.

Department employees said they found nothing wrong when they observed the signal. The department also presented evidence that workers had corrected other problems with the signal during the six months before the accident.

Wagner’s attorney said the Roads Department replaced the signal cabinet the year following the accident, but there had been at least one complaint about conflicting green lights since then.

Kevin Domogalla, operations and maintenance manager for the Roads Department district that includes Schuyler, said he couldn’t recall any reports of problems with the light during the year and a half he has held the job.

Wagner’s attorney said his clients had hoped the case would prompt state officials to change how they respond to reports of highway problems.

Doug Peterson said national standards on dealing with traffic light issues call for states to have a central number for people to report problems and for collecting detailed information from those people.

The standards also call for a signal technician to respond and open up the traffic-signal cabinet for all calls of conflicting green lights.

“They are not following industry standards,” Doug Peterson said. “It would seem that, after an accident this serious, to choose to operate in the same way is shocking.”

Hall said safety is a top priority for the department and reports of problems are always checked out but, in this case, those checks never revealed a malfunction.

“We at the Department of Roads sympathize with the Fickle family,” she said. “We hope the settlement proceeds will enable Jacob to receive the medical care that he needs.”

On Friday, December 7, 2007, Colfax County District Court Judge, Mary Gilbride, entered an Order approving a $9,900,000 settlement between the State of Nebraska and Gail Fickle, on behalf of her son, Jacob Wagner.

The settlement follows the July 20, 2007 opinion issued by the Nebraska Supreme Court which upheld the finding of liability against the State of Nebraska as a result of a defective traffic signal on Highway 30 and 15 in Schuyler, Nebraska, and the resulting accident on February 14, 1999. This amount, in addition to payments by other parties, brings the total settlement of this case to over $10,000,000.

According to Gail Fickle: “This has been a very long process when you consider that the accident occurred back in February of 1999, but we are very pleased to finally get the matter resolved so that we can now put the case behind us and continue to focus on providing for Jake’s future.”

The Fickles’ attorney, Doug Peterson, from the firm of Keating, O’Gara, Nedved and Peter stated: “We were very pleased that we were able to sit down with the State and get this matter resolved. Settling the case in this way was in everyone’s best interest. Our hope is that procedures have been improved to make sure that a tragedy like this does not happen again.”

Gail Fickle is currently trying to find facilities in Nebraska that will meet Jake’s medical and therapy needs. Jake is excited at the prospect of being closer to home so that he can see more of his family and friends. Gail wants especially to thank those people who were courageous enough to come forward with information about the malfunctioning lights and their willingness to testify at trial.

From the Lincoln Journal Star:

Accident victim still waiting for state to pay claim
BY JoANNE YOUNG / Lincoln Journal Star
Tuesday, Feb 26, 2008 - 09:29:44 am CST

SCHUYLER — Jake Wagner was 16 when he drove through the main intersection in Schuyler nine years ago on a Sunday evening — Valentine’s Day.

He has no memory of it, though, because as he and three friends headed south on that warm, clear night, to Glorimar’s café, a semitrailer truck slammed into the Buick Sentry he was driving, pushing it more than half a block west, leaving him with a critical head injury.

Witnesses said the traffic signal had malfunctioned, giving green lights to both Wagner and the driver of the semi, owned by Metz Baking Co. They said many people had called in complaints about the light malfunctioning for months before the crash.

The state has denied claims filed by Wagner’s Lincoln attorney, Doug Peterson, for years, but last year the state Supreme Court ordered the state to pay Wagner $9.9 million, nearly triple what had originally been ordered by a Colfax County District Court.

The award was among the largest publicly announced awards in the state. Some settled amounts are not disclosed because of confidentially agreements, but it was the largest ever against the state Department of Roads.

Wagner, now 25, still hasn’t seen the money. The Legislature must first approve the claim, which was heard Monday by the Business and Labor Committee. It has not yet acted to send the claim to the full Legislature.

Wagner’s mother, Gail Fickle, said people in Schuyler continue to tell her the light is still malfunctioning.

Mary Jo Hall, spokeswoman for the Department of Roads, said the Schuyler signal lights have become somewhat of a community legend, that the department’s research shows the lights work—they always have.

Fickle begs to differ.

The telephone rang shortly after 10 p.m. that night at the Fickle home. Gail and her husband had just returned from a Valentine dinner in Columbus and he reached for the phone.

“I said, ‘That’s Jake. Tell him no. He has to get home,’” she said.

But the caller wasn’t Jake. It was the call no parent ever wants to get — someone telling a mother to come immediately to the hospital.

They arrived minutes before he did, then heard the whoosh of the emergency room doors as the gurney pushed through and Fickle saw her son, lying so still, his arm flopping over the side.

“He looked like he was gone,” she said. “I said ‘Oh, dear God,’ and slid down the wall.”

A helicopter picked him up a few minutes later to take him to an Omaha hospital. His mother was unsure if he would make it there alive. He did, and he lived to the next morning, and another day and another.

He was semiconscious several months, then spent many more months in a rehabilitation hospital. Eventually, he was moved to another rehabilitation facility in Sheldon, Iowa, where he stayed for six years, his care paid for by Medicaid.

But last August, he was sent home, and his mother was told she needed to find a place in Nebraska to care for Jake. The family tried several nursing homes, but they weren’t the right fit for a 25-year-old who could get around in a wheelchair and needed the company of others his age as much as he needed daily care.

He’s been at home for more than a month. His mom takes care of him, but must work, too, and arrange for people to come and check on him hourly. He’s 6 feet tall and weighs over 185 pounds, and it’s difficult to help move him around. She’s fallen with him at least once.

Wagner still has trouble with speech, balance, feeding himself. He has only some use of his left arm and no use of the right.

He loves the outdoors, used to go fishing, hunting, trapping, skiing. Now he goes out in his wheelchair when the weather is nice. And he rides along when his stepdad goes hunting and trapping. Otherwise, his entertainment is the television.

“It’s not the best setup in the world, but we make do with what we can,” his mother said. “He needs to be somewhere that has activities for a young person. … Hopefully, this money should be a tremendous help to make his quality of life better.”

Fickle said she’s still concerned about the lights where Nebraska 15 intersects with 16th Street, which is also U.S. 30, in the middle of town.

Even though the state maintained conflicting green lights could not occur, attorney Peterson found witnesses who said they had seen it. And one man who had been sitting in the convenience store on the northeast corner of the intersection testified he saw the green lights at the time of the crash.

Dan Waddle, state traffic engineer, said every time the state has responded to a complaint, no problem was observed. The signals also test correctly.

The signals at the Schuyler intersection were changed a few years ago as part of a scheduled replacement and upgrade, Waddle said.

If the signal’s conflict monitor picks up a potential problem, he said, the lights go immediately into flashing red mode, or flashing red in one direction and flashing yellow in the other.

Conflict monitors are tested annually, he said.

Some people have questioned whether the state has a good process for handling traffic light complaints, since many complaints were said to have been reported before the accident.

Waddle said the state has a system for documenting complaints that come in to district sites and maintenance yards. And roads employees keep track of work done on traffic signal boxes by marking the inside of cabinet doors.

The state has plans to create an 800 number for traffic signal complaints. He wasn’t specific about when the number would be operational.

“It should be soon,” he said.

From the Omaha World Herald:

State agrees to pay $9.9 million to victim of Schuyler car crash
BY MARTHA STODDARD
WORLD-HERALD BUREAU

LINCOLN — Jacob Wagner of Schuyler, Neb., will receive $9.9 million from the State of Nebraska for injuries suffered in a crash blamed on a malfunctioning traffic signal.

The amount is part of a settlement reached between the state and Wagner’s mother, Gail Fickle. It was announced Thursday by Fickle’s attorney, Doug Peterson of Lincoln.

The settlement appears to be a record for an injury lawsuit against the state, said attorney Peterson and the state’s risk manager, Laura Peterson.

The state paid $3.4 million in connection with a 2001 Seward school bus crash on West Dodge Road that killed four people and injured 27. With payouts from all parties, including insurance companies, the total in that case was more than $12 million.

The state agreed to the Wagner settlement after losing twice before the Nebraska Supreme Court.

The high court ruled July 20 that the Department of Roads was at fault for not fixing the traffic light despite repeated complaints that it displayed green in several directions at the same time.

In that ruling, the court said Wagner may need more than $9 million to compensate him and his mother for medical bills, future lost earnings and pain and suffering. In September, the court refused the state’s motion for a rehearing in the matter.

Officials at the Roads Department did not return calls seeking comment on whether they have changed policies and procedures in response to the accident.

Wagner suffered severe brain damage in the Feb. 14, 1999, crash. Even after years of therapy, he is unable to walk. He has no use of one arm and limited use of the other. He has double vision and difficulty speaking.

Witnesses said the traffic light at U.S. Highway 30 and Nebraska Highway 15 in Schuyler was displaying green to southbound and westbound traffic at the time of the crash.

Wagner, then 16, was driving his car south when he was hit by a westbound semitrailer truck owned by Metz Baking Co. Three passengers in Wagner’s vehicle were not seriously injured.

The family already has settled with the City of Schuyler and with the trucking company, bringing the total settlement to more than $10 million. Peterson said confidentiality agreements bar him from revealing the exact figure.

Fickle said Thursday that she is trying to find a place in Nebraska where Wagner can live and that meets his medical and rehabilitation needs. She said her son is excited at the prospect of being closer to family and friends.

Wagner had been living at Village Northwest Unlimited in Sheldon, Iowa. He is staying temporarily at a nursing home in Sargent, Neb.

Earlier, she said that the money from the state would give her son more options in life, including getting medical care that Medicaid might not pay for and a new wheelchair van for the family.

It also might buy a specially modified four-wheeler that would allow Wagner to get back outdoors. Before the accident, Wagner had loved hunting, fishing and being outdoors.

Fickle said she appreciated the people who were willing to come forward and testify about the malfunctioning lights.

According to evidence at the trial, three Roads Department employees said they had been told of the problem although they found nothing wrong when they checked the signal.

Four members of the public said they noticed the problem in September and October 1998 and reported it to the state. A Roads Department employee confirmed receiving two of those complaints.

On product recalls, it’s “All China All the Time” these days.

BAKERSFIELD - A New Jersey importer of Chinese-made tires is asking the federal government for help in recalling almost half a million defective tires that may have already contributed to one death.

The tire recall follows other major recalls of Chinese-made products, including pet food, toothpaste, and toy trains, prompting widespread consumer concerns.

Now consumer groups wonder if Chinese-made products are safe, given the recalls made in recent months.

The National Highway Transportation Safety Administration said a New Jersey company—Foreign Tire Sales—has announced a recall of at least 450,000 tires made in China, although who is going to pay for the recall and tire replacements remains in question.

The defective tires, used on light trucks and SUV’s, have been sold under the names of Westlake, Telluride, Compass and YKS.

Lawyers are blaming the tires for a fatal accident last year near Philadelphia.

“Check your tires,” said Jeffery Killino, a lawyer for accident victims. “Make sure that you’re not riding on these tires!”

This tire recall follows several other recent recalls of Chinese-made products, including toothpaste containing a poisonous chemical, contaminated pet food, and Thomas the Train Engine toys decorated with lead paint.

If you or a loved one have been injured due to the negligence of another, please call Keating, O’Gara, Nedved & Peter at 888/234-0621 or fill out the contact form on this site. Your first consultation is free and we handle cases on a contingency fee basis.

The Journal Star reports today on the shocking case of a 5 year old who was struck walking to the school bus in a Lincoln residential neighborhood. The shocking part of the case is that the offending driver fled the scene and then, apparently, filed a false report claiming his car had been stolen.

A 5-year-old girl was hit by a car and critically injured walking to the school bus Wednesday morning at 19th and Harwood streets. A witness said the girl’s mother and about 10 children getting onto the school bus saw the car hit the girl and the car drive away.

* * *

A woman who lives in the neighborhood said she was on her porch when she saw the Taurus speed by, going maybe 40. And she saw the little girl take three steps out in front of a van parked against the curb.

“And the next thing I see her flying in the air and everything in her hands is everywhere,” the woman said. “And he just kept driving.” She said it was the most horrific sound she’s ever heard.

Rattled, she rushed inside to call 911 and said she’d just seen a speeding car hit a little girl.

About 10 kids had been waiting for the school bus at the corner saw it happen, she said. One little boy came up to her and said “He just kept going.”

“I will never forget that, ever,” she said.

Rescue workers took the girl to BryanLGH Medical Center West. She later was taken by helicopter to Creighton University Medical Center in Omaha, where she was listed in critical condition.

By late morning, the backpack, blanket and shoes sat on the pavement with markers around them, as police documented the scene.

If you or a loved one have been injured due to the negligence of another, please call Keating, O’Gara, Nedved & Peter at 888/234-0621 or fill out the contact form on this site. Your first consultation is free and we handle cases on a contingency fee basis.

In today’s Journal Star there is the moving account of Shannon Malloy who suffered an atlantooccipital dislocation or “internal decapitation” in an automobile accident.

As [Shannon’s] head hit the dashboard, the force separated the skull from the spine. It’s not an uncommon injury, but it’s usually found during an autopsy. It’s similar to what Christopher Reeve suffered, only his was more severe.

Surviving a dislocated head, while still rare, has become more common due to quicker airway protection and better spinal isolation at accident scenes. More than 100 “decapitated” people may be walking around, according to medical literature.

What is Spinal Cord Injury?

A spinal cord injury usually begins with a sudden, traumatic blow to the spine that fractures or dislocates vertebrae. The damage begins at the moment of injury when displaced bone fragments, disc material, or ligaments bruise or tear into spinal cord tissue. Most injuries to the spinal cord don’t completely sever it. Instead, an injury is more likely to cause fractures and compression of the vertebrae, which then crush and destroy the axons, extensions of nerve cells that carry signals up and down the spinal cord between the brain and the rest of the body. An injury to the spinal cord can damage a few, many, or almost all of these axons. Some injuries will allow almost complete recovery. Others will result in complete paralysis.

Is there any treatment?

Improved emergency care for people with spinal cord injuries and aggressive treatment and rehabilitation can minimize damage to the nervous system and even restore limited abilities. Respiratory complications are often an indication of the severity of spinal cord injury About one-third of those with injury to the neck area will need help with breathing and require respiratory support. The steroid drug methylprednisolone appears to reduce the damage to nerve cells if it is given within the first 8 hours after injury. Rehabilitation programs combine physical therapies with skill-building activities and counseling to provide social and emotional support.

Reference: The National Institute of Neurological Disorders and Stroke website.

If you or a loved one have suffered a spinal cord injury due to the negligence of another, please call Keating, O’Gara, Nedved & Peter at 888/234-0621 or fill out the contact form on this site. Your first consultation is free and we handle cases on a contingency fee basis.

From CNN.com:

If you are injured in a minor car crash, chances are good that you will be in the fight of your life to get the insurance company to pay all the medical costs you incur — even if the accident was no fault of your own. That’s what CNN discovered in an 18-month investigation into minor-impact soft-tissue injury crashes around the country. Those are accidents in which there is little damage to the vehicle and the injuries to people are not easy to see by the naked eye or conventional medical tools like X-rays.

Since the mid-1990s, most of the major insurance companies — led by the two largest, Allstate and State Farm — have adopted a tough take-it-or-leave-it strategy when dealing with such cases. The result has been billions in profits for insurance companies and little, if anything, for the public, according to University of Nevada insurance law professor Jeff Stempel.

Read the full article here.
If you have a dispute with your insurance company, please call Keating, O’Gara, Nedved & Peter at 888/234-0621 or fill out the contact form on this site. Your first consultation is free.