Defense Verdict in "Deep Pocket" Construction Accident Case

John Farmer and Lisa Freund recently obtained a defense verdict on behalf of an asphalt slurry contractor in the trial of a motor vehicle accident case.  Plaintiff, travelling home from the grocery store, was struck head on by a drunk driver who had crossed the center line of the roadway.  The week before, the asphalt slurry contractor had slurried the roadway, necessarily covering up the existing lane lines and double yellow line defining the center of the roadway.  The City had undertaken the responsibility for placing temporary reflective tabs on the roadway after the slurry had been applied to replace the lane markings, pending the repainting of the lines several days later.  The yellow tabs placed in the center of the roadway were alleged to have been single as opposed to double tabs and were claimed to have been spaced too far apart.  Plaintiff, who did not join the City as a defendant, claimed the temporary markings were insufficient per the Caltrans manual, confusing to drivers and contributed to the accident.  Plaintiff claimed that the slurry contractor was responsible because it had not completed its work at the site, despite the City’s apparent assumption of responsibility.

Plaintiff had substantial injuries, including two shattered kneecaps with 4 open reduction surgeries, a broken rib, pneumothorax, DVT with insertion of a vena cava filter and a comminuted fracture of the right fourth metacarpal with surgery.  Agreed past medical expenses were $240,000.  The defense contended plaintiff’s loss of earnings was $21,000; plaintiff claimed past and future lost earnings/earning capacity of $192,000.  Plaintiff’s counsel asked the jury for $1,432,000, including $900,000 in general damages.  Prior to trial, plaintiff demanded $1,000,000 from the contractor, reduced to $850,000 by CCP 998 demand, and further reduced to $700,000 while the jury was out.  The carrier for the intoxicated driver co-defendant offered its $15,000 policy.  The carrier for the contractor offered $147,875 by CCP 998 offer, increased before trial to $200,000.  After a 2 1/2 week trial, the jury returned a verdict of $511,000 ($261,000 economic, $250,000 non-economic) and allocated fault at 85% to the intoxicated driver, 15% to the non-party City and 0% (no negligence) to the slurry contractor, Farmer Case & Fedor’s client.