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A Pedestrian is Run Down in a Crosswalk by a Speeding Van, Resulting in Serious Injury and a Substantial Verdict

By William S. Bailey

Following an unsuccessful all day mediation, the mediator said to the departing claims adjuster, “Well, for your sake I hope I don't end up reading about this case in the WSTLA Trial News .” This comment turned out to be prophetic after a King County Superior Court jury returned a plaintiff's verdict on March 3, 1995 which was over twice the best offer of the defendants.

Plaintiff Nathan Malkow is a 36-year-old commercial fisherman who lived six months of the year in rural Okanagon County . On December 22, 1992, he was driving west of the mountains to meet up with the rest of his family for the Christmas holidays. He lost the fan belt in his truck just outside Monroe , Washington . He managed to limp into Monroe with an overheated engine and pulled into the parking lot of a car parts store along State Highway 2. He installed a new fan belt then decided to get some food at a nearby McDonald's while the engine cooled off. He pushed the crosswalk button at the intersection of State Route 2 and East Main and waited for the walk signal. He and his dog Rooster then started into the crosswalk when the light changed and were in the middle of the crosswalk when he was struck by defendant Christine Cooper, who was driving a courier van for defendant Air Data Express. Cooper had only worked for Air Data about two months and had another turning accident on the job three
days before she hit Mr. Malkow. Plaintiff's accident reconstruction expert estimated that the front of defendant's van struck Mr. Malkow at about 25-27 m.p.h. His body landed in the street, about 57 feet from the estimated point of impact. Two nearby motorists came to Mr. Malkow's aid and found that he was still alive, struggling to get up off the pavement. He was taken by ambulance for medical care in Everett , Washington . It was determined that Mr. Malkow had sustained a head injury of undetermined severity, but had no apparent fractures. Over the next two years, he would develop chronic myofascial pain, particularly along his left side and developed classic symptoms of a traumatic brain injury.

Although the defendant driver Christine Cooper was cited by police for failure to yield the right of way to a pedestrian in the crosswalk, defendants vigorously contested liability in this case. Plaintiff's counsel could not get into evidence the fact that Ms. Cooper forfeited bail to the charge of failure to yield to the pedestrian in the crosswalk. No other eyewitnesses were in a position to see the pedestrian walk signal. So only plaintiff was able to state that he was crossing with the light. Thereby, defendants turned the liability case into a classic swearing contest, one person's word against another's. Defendant Cooper testified that she wasn't sure that Mr. Malkow was really in the crosswalk. The jury chose to believe Mr. Malkow's version of the facts and disbelieve defendants. Despite a vigorous attempt by the defense to have Mr. Malkow found contributorily negligent, the jury declined to assess any blame against Mr. Malkow.