DOVER - The husband of a Rochester woman killed when she was struck by a vehicle in a crosswalk near Strafford Square is suing the city of Rochester for breaching its duty to maintain the crosswalk in a safe manner.
Diane Felts, 62, of Walnut Street, was killed on Dec. 26, 2020, when she was struck while in the crosswalk at the northern end of Strafford Square.
Felts, who was crossing North Main Street toward the side where Holy Rosary Church is located, was tossed some 40 feet in the air in the violent collision, landing back on the pavement bleeding profusely from her head, mouth and nose, according to the complaint filed in Strafford Superior Court on Jan. 28, 2022.
"(Diane) Felts was struck with such force that her shoes flew off of her body and landed approximately 50 feet from the crosswalk where Mrs. Felts was struck," the complaint states.
The victim fell unconscious at the accident scene and went into a coma. She was taken off life support on Jan. 1, 2021.
The lawsuit filed on behalf of Felts' husband, Raymond, claims that the City of Rochester has known that the crosswalk near the intersection of North Main, Walnut and Washington streets has been among its most dangerous, but did nothing to improve its safety in the meantime while awaiting the completion of the Strafford Square Improvement Project and roundabout.
The make their case, the lawsuit points to the Rochester Police Department's own Facebook page of Dec. 27, 2020, where they described the tragic death of Diane Felts. Some of the many comments beneath the post point to the inherent dangers of the crosswalk in which Felts was struck. Some of the comments listed in the complaint include.
"[It's] tough to see anyone in that crosswalk"
"That's a bad spot to [sic] many people have got hit there"
"People are always speeding down north main in that area"
"I almost have been hit there its [a] dangeres [sic] spot"
"I almost get hit every time I go that way in my wheelchair. There are no crosswalk lights down there" . . . to which another resident responded: "[T]hey need to fix that. People don't care, they just fly down that road."
The complaint also notes that police responding to the accident were, themselves, almost hit and that they saw drivers often with their hands above their heads and squinting trying to see against the sun's glare.
The lawsuit claims that the city knew these concerns were real and substantiated, yet did nothing to remedy the situation.
"Defendant City of Rochester knew all of this, including that, due to the insufficiencies stated herein, incidents like the one described herein that so tragically took Mrs. Felts' life "happen quite a lot around [the] neighborhood," the complaint states. "Defendant City of Rochester also knew that the visibility was extremely poor at the area of the subject crosswalk and that many pedestrians would walk upon it without being seen by approaching vehicles."
While state law requires that drivers yield to pedestrians in a crosswalk, the suit argues there was a "lack of warning signs, signals, flashing lights, or any other indicators to drivers." It also states that "in combination with the positioning of the sun at various times of the day, (this) makes it practically impossible for drivers to observe the crosswalk and pedestrians walking through it."
The lawsuit, which was originally filed on Jan. 28, 2022, concludes that the City of Rochester is responsible for Felts' death.
"As a result of Defendant City of Rochester's failure to act and failure to maintain the North Main Street crosswalk and Strafford Square intersection in a safe manner, drivers and pedestrians have been injured in serious accidents in the area, including Mrs. Felts, whose injuries proved fatal," the complaint notes. "Mrs. Felts' fatal injuries were caused by the above-mentioned insufficiencies and the City of Rochester's gross negligence."
The lawsuit, which was filed on behalf of Felts' estate, seeks compensatory damages for pain and suffering, enhanced compensatory damages, and such further relief as may be proper and just.
The plaintiff, who is being represented by the law firm of Shaheen and Gordon of Dover, are seeking a jury trial.
A motion by the City of Rochester to dismiss the suit was denied on Sept. 1.
A second motion by the City of Rochester to reconsider its motion to dismiss was filed last week.
The second motion to dismiss was unavailable, but the original motion noted that municipalities have wide immunity from prosecution in all safety issues.
"It is well recognized law that municipalities "have not been, and are not now, guarantors of public peace, safety and welfare," the March17, 2022 motion to dismiss notes, citing a New Hampshire case "Stillwater Condo Association v Town of Salem."
The motion also claims the driver of the vehicle that struck Felts was driving dangerously, was wearing "sunglasses that were dirty," and was familiar with the glare of the sun as he headed southbound on North Main Street toward Strafford Square.
The City of Rochester is being represented by the law firm of Gallagher, Callahan and Gartrell of Concord.
No charges were filed against the driver of the car that struck Felts.
Rochester City Attorney Terence O'Rourke was present at last Monday's hearing at Strafford Superior Court, but is not representing the city in this matter.
Stafford Superior Court Judge Daniel Will is presiding over the case.
A ruling by Will may take several weeks or even months.
While no comment from the city could be expected as the case remains open, it should be noted that O'Rourke has not responded to comments or requests for Right to Know documents since he claimed on April 12 that he need not respond to such because the city of Rochester has learned "based on research" that The Rochester Voice is not a citizen of Rochester or New Hampshire.