Case Study | Car Accident
for a client injured in a car accident caused by a construction zone flagman
Our client was driving through Suffolk County when she was struck by a vehicle waved into oncoming traffic by a construction flagman positioned approximately 50 feet from an active traffic signal. The flagman’s wave — intended to clear the driver through the work zone — was interpreted as clearance to proceed through the intersection. Our client was T-boned. The collision exacerbated a prior back injury to the point of requiring surgery she would not otherwise have needed.
The construction company argued the driver had disregarded the flagman’s instructions. We argued the instructions themselves were the problem. Palermo Law held both the driver and the construction company jointly liable and secured a combined settlement of $612,000 at pre-trial mediation.
| 1 | Identified the Construction Company as a Second Defendant
The at-fault driver’s insurance alone was not sufficient to reflect the full scope of liability in this case. From the outset, we recognized that the construction crew — not just the driver — created the conditions for this collision. A flagging operation positioned approximately 50 feet from an active signalized intersection is an inherently dangerous configuration, and we pursued the construction company as a separate defendant from the beginning. |
| 2 | Established the Flagman’s Signal as a Proximate Cause
The driver did not act recklessly in a vacuum — she responded to a signal from an authority figure in a work zone. We argued that when a flagman directs traffic around 50 feet of a traffic light, the signal is foreseeably ambiguous. A reasonable driver being waved forward in that context has no clear basis to know the signal stops at the work zone and does not extend through the intersection. The construction crew created that ambiguity. |
| 3 | Argued Shared Fault Between Both Defendants
The driver was not without fault — at approximately 50 feet from the intersection, she had a duty to confirm the flagman’s wave did not constitute clearance through a red light. But the construction company’s decision to stage a flagging operation that close to a signal without adequate separation made a misinterpretation foreseeable. Both parties bore responsibility, and fault was apportioned equally at 50%. |
| 4 | Distinguished the Prior Injury from the Accident-Caused Harm
The defense leaned on our client’s pre-existing back condition to argue that surgery was inevitable regardless of the crash. We countered with medical evidence documenting that the accident directly exacerbated a previously manageable condition to the point that surgery became necessary — a measurable, specific harm that would not have occurred but for the collision. |
| 5 | Resolved at Pre-Trial Mediation
With liability clearly established against both defendants, we positioned the case for resolution at mediation. Both insurers contributed to the settlement, and the matter was resolved for $612,000 without going to trial. |
The construction company’s defense was straightforward: the driver ignored the flagman. But that argument collapses when you examine where the flagman was standing. A flagging operation approximately 50 feet from a traffic light does not create a clear boundary between “work zone clearance” and “intersection clearance.” It creates confusion — and when a flagman waves a driver forward in that environment, the responsibility for what happens next does not fall entirely on the driver.
New York law recognizes that construction companies have an obligation to manage traffic safely within and around their work zones. Positioning a flagman that close to an active signal, without adequate separation or signage to clarify the scope of the wave, created a foreseeable risk. We made that case, and the construction company’s insurer ultimately contributed to the settlement.
The prior injury was a secondary challenge, but a significant one. Defense counsel will always argue that a plaintiff with a documented pre-existing condition was on a path to surgery regardless of the accident. The answer to that argument is in the medical record — and in this case, the record showed a clear line between a condition that had been managed without surgical intervention and a post-accident presentation that required it.
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