AARON BROWN
Missouri Lawyers Weekly
9/13/2004

A 69-year-old man who was paralyzed in an automobile accident has settled his Jackson County case for $3 million — even though he was driving with a revoked license and had serious pre-existing health problems.

Arthur Burns, who was injured when his car collided with a truck, had lost his license for failing to appear in court on a prior traffic charge.

The revocation loomed as an obstacle to recovery, said his attorney, Anita Porte Robb of Kansas City. And Missouri law did not give much guidance, she said — the last case on the issue was decided in 1929.

But case law from other states indicated that there was a good chance the evidence would be inadmissible.

“I think a lot of lawyers must have assumed that a plaintiff’s lack of a valid license was an insuperable weakness, and just declined these cases,” she said, speculating on reasons for the dearth of Missouri law. “And it’s obvious that the lack of a license would be a major impediment to recovery.

“Even on issues that may seem at first glance to preclude recovery; you can be surprised at what the law turns out to be. We were very pleased with what we were able to find in this case.”

She also said the settlement demonstrated that elderly clients can get substantial recovery for their injuries.

Paul Cowing of Kansas City, who represented the construction company, declined to comment on the case.

Accident
The accident occurred on Nov. 21, 2002. Arthur Burns was northbound on Hillcrest Road in Kansas City when a truck owned by a local construction company pulled out of a gas station into his path.

Burns’ car broadsided the truck at about 25 mph. He suffered a spinal injury and was left with incomplete quadriplegia, which is characterized by reduced function and strength in both arms and both legs.

He was hospitalized numerous times for the spinal cord injury and resulting complications, including sepsis and renal failure, abnormal liver function, dehydration, heel ulcers, and severe chronic pain. His medical expenses ran to $558,000.

Revoked License
The license issue was a concern at the start, Robb said. Burns lost his license after failing to appear in court for a previous citation for not obeying a traffic control device.

This raised the possibility that the defense could argue that Burns would not have been on the road at all, and the accident would not have occurred, if he had been in compliance with the traffic laws.

“A lot of people might think in a knee-jerk fashion that this was an issue that could have precluded recovery,” Robb said. “You have an unlicensed driver behind the wheel, and an obvious question of but for causation.

“So we conducted research to see if that was the case and if the fact that a driver was unlicensed was admissible and considered relevant at trial.”

Initial research into Missouri cases was helpful but far from conclusive, Robb said. A case from 1929 was on point, and suggested that the information would not be admissible unless relevant to issues of negligence or comparative fault.

But the issue has not come up again in Missouri courts in the intervening years.

Cases from other jurisdictions were more helpful, she said. At least five other states suggested that the lack of a valid license would not be admissible unless relevant to issues of “negligence, comparative negligence or proximate cause,” she said.

“I think the important practice point here is not to make assumptions where you’re not absolutely sure of what the law says. Because sometimes the law can be counter-intuitive to what you would expect at first glance.”

Another potential problem in the case was Burns’ age and previous health problems, Robb said.

“There’s certainly a common wisdom out there that it’s difficult to get adequate recovery for elderly clients because of their shorter life expectancy, and because they so often have prior medical conditions.”

And she noted that compensation for Burns’ spinal injury in the accident was not a complete slam dunk, due to his pre-existing degenerative spinal disease.

“We definitely had to make sure that our client’s orthopedic and neural disabilities were not the result of the disease, but rather were caused by the accident,” she said.

Two of the medical problems for which the man sought compensation in the case, renal failure and poor liver function, were not the direct result of the accident, she noted.

Burns did not have a prior history of kidney or liver problems, but did suffer from congestive heart failure, which arguably could have been their cause.

“He had what I would call a typical set of degenerative health problems that you find in elderly people,” she said. “And some of those can progress to a debilitating state with or without an auto accident.

“The defense was going to argue that the liver and kidney problems were not part of a sequence leading back to the accident, but were caused by problems with the care he received,” she said.

In the opinion of the man’s treating doctors, however, the kidney and liver troubles were the result of a “sequence of events” that started with the spinal injury in the accident, she said.
“The treating doctors did come to the conclusion that the kidney and liver problems would not have happened but for the spinal injury and the accident,” she said.

Robb also said there were hints that the defense would argue that Burns had not done enough to avoid the accident.

“There could have been a question of whether he kept careful lookout,” she said. “And even if the truck driver did do wrong, whether Mr. Burns should have been able to take action to avoid the accident by braking or swerving was at issue.”

Confidentiality
Robb noted that the defense initially wanted a confidentiality agreement as a condition of a settlement, but her client refused. Eventually, the parties agreed upon a partial confidentiality agreement in which the names of the construction company and the insurer would not be revealed.

Robb said her client’s refusal to agree to comprehensive confidentiality did not arise from a desire to punish the company or the driver. Rather, he wanted to be able to show skeptical family and friends that the accident was not his fault.

“The other driver was not a problem driver, and the company was not a disreputable company,” Robb said. “They didn’t seem to need to be exposed. And we did share that with our client during the negotiations.

“But this gentleman had a problem with family and friends who assumed the accident happened because of his age and his illnesses. And he wanted them to know that it wasn’t his fault. It was a question of his pride and his reputation within his family and friends.”