$640,000: Happy Hour Truck Driver Versus Pedestrian
June 7, 2010
CASE DESCRIPTION: Plaintiff, Diane P., was Plaintiffs brought a lawsuit for personal injury damages, negligent infliction of emotional distress and loss of consortium. Diane P. left her home in Costa Mesa to take her usual evening walk. It was a clear evening with good visibility. She was about two blocks from her home and approaching an intersection. She stopped a the corner, where there was a stop sign, and looked around for cars. As she stepped into the intersection, a Metal truck, driven by Chanse W., failed to stop at the intersection’s stop sign and violently struck her. She was tossed 16 feet into the air, then fell and struck the pavement very hard with her back and the back of her head and neck.
RESULT: $640,000.00 total settlement
This version of the incident was confirmed by an independent bystander, as well as the driver, Chanse W. who stated that as he approached the intersection, he failed to come to a complete stop and rolled through stop sign. He said the sun was directly in his eyes and he could not see anyone in the intersection as he rolled through the stop sign. During the investigation the officer could smell the odor of alcoholic beverage on his breath and the person. For this reason, Chanse W. was given the standard alcohol screening tests. He failed such tests and was determined to be under the influence of alcohol. For this reason, the police recommended felony driving under the influence charges against Chanse W.
Liability against the driver: Plaintiff’s contended that there is no reasonable dispute that Chanse W. was not at fault for this incident. He admitted he did not see pedestrian Diane P. and rolled through the intersection. The police officers determined that Chanse W. was at fault for the incident and proceeded to file felony driving under the influence charges. Unfortunately, Chanse W. passed away due to mixing alcohol with seizure medication and his Estate was named as a defendant. The Probate Code allows a plaintiff to proceed against the insurance proceeds of the defendant under such a situation. As such, the insurance company, Golden Eagle, defended the action for both the Estate of Chanse W. and Sheet Metal, the employer of Chanse W.
Liability against Sheet Metal (SM): Plaintiffs’ contended (SM) was liable under theories of negligent entrustment, permissive use and vicarious liability. The undisputed facts of this matter established that SM exhibited gross negligence in letting Chanse W. drive its vehicle for the following reasons:
- SM knew Chanse W. had problems with drinking and taking seizure medications four months prior to the incident. Despite this knowledge, SM allowed him to continue to drive their vehicles. Not surprisingly, Chanse W. received a driving under the influence charge one month prior to the incident.
- SM knew Chanse W’s poor driving record was volatile of its own driving policy prior to the incident.
- SM made a conscious decision to let its insurance company determine the fitness of its drivers and did not enforce its own driving policy.
- SM was aware that Chanse W. had been identified as a reckless driver four months prior to the incident.
- SM was aware that Chanse W. would regularly make stops while going home from work at his friend’s house, as he did on the date of the incident.
- SM was aware of Chanse W’s drinking problems as Chanse W. was an alcoholic and would drink to excess at company events and at SM after work.
- On the date of the incident, Chanse W. was going home from work after stopping at a friend’s house for drinks, activities that SM was aware of.
The defense contented that the plaintiff was not careful. In addition they argued that Chanse was not in the course and scope of employment. Therefore, the company insurance did not cover him. The defense attributed the cause of the accident to the sun being in Chanse’s eyes.
TYPE OF CASE: Truck v. Pedestrian
INJURIES: At Hoag Hospital, following the incident, Diane P. was diagnosed with blunt head injury, with concussion, possible cerebral conclusion, and basila skull fracture, with a right hemotympanum, low back pain and elevated blood pressure. Over two years later she continued to complain of loss of sense of smell, left eye “flashes” episodically, right hip is painful at the joint, right ear has persistent tinnitus, occasional headache and dizziness, anxiety problems, associated with previously unconcerned events, such as walking in her neighborhood, concern over her grandson’s welfare, etc., lowered frustration tolerance and decreased patience.
DATE & LOCATION OF INCIDENT: On 8/10/01 at 6:45 p.m. in Costa Mesa, California.
PLAINTIFF’S AGE: Diane Porter – 57 at time of accident.
OCCUPATION: Office assistant.
Christopher R. Aitken
AITKEN * AITKEN * COHN
For Plaintiffs – Diane & Charles P.
QUINLIVAN & WEXLER
For Defendant – Sheet Metal
V. Rene Daley
LINDAHL, SCHNABEL, KARDASSADIS & BECK
For Defendant – Estate of W.
DEFENDANT INSURANCE CO.: Golden Eagle Insurance