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Lassiter v. Cohn2/1/2005
PUBLISHED
This appeal arises out of plaintiff's claim of negligence against the City of Durham and Durham Police Officer C.L. Cohn (collectively "defendants "). The forecast evidence of the facts giving rise to this appeal showed the following: On the night of 25 August 2000, there was excess traffic on Garrett Road in Durham due to the conclusion of a football game at Jordan High School. Adjacent to the high school, Garrett Road has three lanes, a northbound and southbound lane, and a center turning lane. An off-duty police officer was directing the game traffic, and stopped a taxi in front of plaintiff, both heading northbound on Garrett Road with the taxi in front. Approximately ten seconds after plaintiff came to a stop behind the taxi, a minivan struck plaintiff's vehicle from behind and pushed it into the taxi, creating a three-car collision in the northbound lane. The street was not well lit in the area of the accident.
Officer Cohn was dispatched to the accident and arrived coming southbound on Garrett Road in approximately six minutes. Officer Cohn chose to park her vehicle across the street from the accident with her emergency lights in operation, facing southbound, because the heavy traffic prevented her from making a quick maneuver to pull behind the accident to face northbound. She decided not to use flares or other warnings to protect those exposed at the accident scene as well as other drivers because she believed they would interfere with the officer directing traffic out of the game. At no point did she direct plaintiff or the other vehicles at the scene to turn on their car lights. Additionally, she did not require the vehicles to move further off the road or further north on Garrett Road, based on her determination that the cars were already as far off the road as they could be without falling into the ditch on its eastern edge. Plaintiff's vehicle was the most severely damaged, and required towing from the scene.
Officer Cohn conducted a solo investigation of the collision by speaking with the drivers and obtaining their licenses, registrations, and insurance information. Once Officer Cohn received all necessary information from the driver of the minivan, that driver was allowed to leave the scene which left plaintiff's vehicle exposed to any oncoming northbound traffic. Officer Cohn next requested that plaintiff come to the rear of his vehicle so that she could ask him some questions. When he reached the rear of his vehicle, they discussed information of the other drivers, insurance issues, and where he wanted the vehicle towed. Plaintiff stood at the rear for a couple of minutes with his back turned to the northbound traffic.
Ms. Theisen, the third-party defendant in the case, approached the accident in a Mazda Miata coming northbound on Garrett Road. As she rounded a bend on the road just before the accident, she diverted her eyes to the opposite side of the road to the flashing lights of Officer Cohn's southbound facing police vehicle. Nearly the same time that she was approaching the accident, a tow truck arrived coming via the southbound lane of Garrett Road with its yellow light bar on top of the truck. Ms. Theisen then noticed the accident scene directly in the path of her vehicle, and attempted to avoid hitting it by applying her brakes, and steering towards the shoulder of the road. Attempting to jump out of Ms. Theisen's way, Officer Cohn was struck by the vehicle and landed in a wooded area on the shoulder of the road. Plaintiff was pinned between his car and the Miata, suffering a severe injury to his left leg.
Due to plaintiff's injury he has incurred $196,018.55 of medical expenses, $33,000.00 of lost wages, and a 40%
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