The Long Beach City Council voted unanimously on Dec. 5 to pay the remainder of a $3.5 million judgment awarded earlier this year to a former Oceanside resident who was crushed by a police SUV while lying on the beach in 2010.
The city also issued what is believed to be its first public apology to the victim, Marshall Starkman, who officials said will never fully recover from his injuries.
“Although it’s with a heavy heart that we have to make this decision, any price on human suffering is a horrendous thing,” City Council President Len Torres said. “It was an accident, and we are very sorry that it happened. We realize that the injuries are going to be with this gentleman for the rest of his life.”
The council voted to bond $656,000 in order to pay Starkman, which brought a formal end to a lawsuit after Starkman sued the city following the May 27, 2010 incident, just before the start of the Memorial Day weekend. The bonds, city officials say, will pay for the portion of the judgment that exceeded the city’s insurance policy cap.
Starkman, then 43 and a manager of a cell phone store, was run over as he sunbathed near Laurelton Boulevard listening to a Mets game, his attorney, Neil Greenberg, said. He was on a low-lying lounge chair when Long Beach police officer Paul DeMarco, a 27-year veteran of the department who was patrolling the beach, made a sweeping U-turn in his Dodge Durango, responding to calls about a swimmer in distress, on a day when lifeguards were not yet on duty.
Police said that DeMarco made a visual check in all directions before turning his vehicle but did not see Starkman, who was struck by the SUV’s right tires and suffered multiple fractures of his spine, neck and ribs. He was transported by helicopter to Nassau University Medical Center, where he was admitted in serious condition.
Starkman subsequently underwent two cervical fusion spinal surgeries and, though Greenberg said that his client is lucky to be alive, he has never fully recovered from his injuries. According to court documents, Starkman continues to experience neck and back pain, among many other physical ailments, suffers from post-traumatic stress disorder and takes various pain medications to treat his chronic pain.
“He’s still in recovery,” Greenberg said. “It’s wonderful that he’s alive, and at the same time it’s horrible that it happened.”
“He had to teach himself how to walk again and how to perform basic bodily functions,” the city’s corporation counsel, Rob Agostisi, said of Starkman at last week’s meeting.
The city deemed the incident an accident, and no charges were brought against DeMarco, who has since retired.
In 2014, after a month-long trial, a Nassau County jury awarded Starkman $2.2 million in pain and suffering damages, including future lost earnings.
But he appealed to the New York State Supreme Court’s appellate division in Brooklyn, saying that the judgment did not adequately cover his pain and suffering. In March, he was awarded an additional $1.3 million, including future pain and suffering.
“It’s not hard to understand the appellate court’s actions on a human level, and candidly speaking, this is a very low verdict,” Agostisi said.
He added that the appellate court also gave the city permission to retry the case, but he advised against it, saying that the damage award would likely increase. If the city does not pay the award, he said, it could also be found in breach of contract, since Starkman “generously” agreed to give the city more time to pay the judgment.
“It’s absolutely essential that we pay this award and simply move on,” he said. “If we don’t, some very bad things will happen. Much more daunting, however, is the prospect of a new trial. The appellate division has already made clear that they value this case no lower than [$3.5 million]. It will never be less expensive to pay this judgment than it is right now — this is as cheap as it will ever get for the city.”
Though the incident occurred under the city’s previous Republican administration, a similar incident occurred on July 16, when two beachgoers were apparently run over at Edwards Boulevard by a police vehicle driven by a veteran officer, David Walpole. Walpole ran over a man and a woman as he was making a three-point turn in his truck after he responded to a large group of people swimming after hours.
The man suffered broken ribs and bruised lungs, while the woman was treated for a leg injury and a broken finger.
Councilwoman Chumi Diamond asked what steps have been taken to prevent such incidents from happening in the future. Agostisi said that the Police Department has changed its patrol policy, adding that SUVs are no longer used to patrol the beach and now only respond to 911 calls there.
Starkman, who is married and no longer lives in Oceanside, was “mortified” when he heard of the recent incident, Greenberg said.
“What would give Marshall some solace is if [the City of Long Beach] would develop a new program to remove these large trucks from the beach,” Greenberg said. “It would give him some peace, that there was some meaning in what happened to him if people on the beach were never in danger as he was.”