After a three-week trial, a Hunterdon County, N.J., jury awarded $5.961 million on Oct. 28 to a man who lost use of his right hand because of injuries suffered when tree limbs fell on his vehicle as he drove on a state road.

The suit, Matlock v. State of New Jersey , asserted that the state Department of Transportation breached its responsibility for fixing roadside hazards, including decaying trees.

This is the second win in as many years for attorneys John Dodig and Jason Daria of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in cases against government entities in New Jersey over the care of the Garden State's roads.
The firm received a $31 million verdict against Camden County in Anderson v. County of Camden for the county's failure to properly maintain guardrails. The firm's client suffered severe injuries when his car veered off the road where there was a drop-off between the asphalt and adjacent dirt and gravel. The verdict was adjusted by the court this year to more than $19 million.

In Matlock , Kenneth Matlock of Phillipsburg, N.J., was on Route 29 in Delaware Township on July 4, 2006, when two overhanging limbs broke loose from an oak tree set back 20 feet from the edge of the road and crashed through the vehicle's roof. The limb fell from a height of 20 feet.

The suit charged that the state was on notice of decaying trees along the road and had the time, authority, control and resources to remedy the problem.

Witnesses said the limb had green leaves sprouting from it, but the suit claimed the tree had "obvious and long-lasting signs of decay."

Called as plaintiffs' witnesses, DOT workers testified that they regularly inspected roadside trees and removed hazardous trees and limbs. They cited 55 reports of tree-related incidents on Route 29 in the two years before the accident.

Another plaintiffs' witness, an arborist who inspected the tree 23 days after the accident, said the tree's trunk was decaying at the point where the two limbs broke off. He also said one limb was hollow at the center and showed decay at the outer bark. The limbs were about 20 feet long. One was 10 inches in diameter and the other 15 inches.

The DOT, represented by Deputy Attorneys General Alfred Low-Beer and Suzanne Shaw, argued that it was not on notice that the limb constituted a dangerous condition and that the state was immune from liability because it exercised its discretion in formulating a procedure for locating hazardous trees.

The jury found that the DOT had constructive notice of the hazard in time to correct it before the accident, and that its failure to take measures to correct the hazard was unreasonable.

Dodig said the case, like Anderson , was a difficult one because it was tried under the New Jersey Tort Claims Act, which requires a higher burden of proof against a state agency.

He said he had to show there was a dangerous condition, that it proximately caused the injury, that the accident was foreseeable, that the state knew or should have known about the dangers and that the state's inaction to correct them was palpably unreasonable. Dodig said that is a higher standard than a negligence claim.

According to the suit, Matlock suffered cervical vertebrae fractures at C2 and C3, requiring fusion surgery. His right arm was crushed, causing severe nerve damage, muscle wasting and a claw-type deformity. His wife, sitting in the passenger seat, suffered a fractured vertebra at C1. The couple's daughter and two other children, sitting in the back seat, were not injured.
Matlock, now 43, is unable to use his right hand and has not returned to his job as a truck driver, the suit says.

The jury awarded Matlock $3 million for pain and suffering, $463,000 for past medical expenses, $756,499 for future medical expenses, $186,911 in past lost wages, $804,660 in future lost wages, and $750,000 per quod to Matlock's wife, Vicki.

Superior Court Judge Peter Buchsbaum dismissed Vicki's own injury claim before trial, finding her injuries were not permanent. Dodig said he would be applying for post-judgment interest that, if granted, would put the verdict at more than $6 million.

Steven Chung of Lundy Law served as co-counsel for the plaintiffs along with Dodig and Daria.

The attorney general's spokesman, Lee Moore, said the state is evaluating its options.

Charles Toutant is a reporter for the New Jersey Law Journal, a Legal affiliate. The Legal' s Gina Passarella contributed to this report. •