Pocialik v. Southern California Grading Co., et al.

On February 5, 2001, the firm achieved a substantial verdict in a wrongful death jury trial in Orange County Superior Court.  The case, entitled Pocialik v. Southern California Grading Co., et al., was tried by the firm’s Senior Associate, Richard A. Cohn, over the course of an approximate two week time period.

The case involved the death of 38 year old Charles Pocialik, Jr., who died on August 27, 1998, when he came into contact with a live electrical wire that had been negligently unearthed on a large Orange County Construction site known as SOKA University of America in Laguna Hills.  Mr. was employed as a water truck driver on the date of the incident, and his job duties involved during the water truck behind a large tractor (“scraper”) to spray water on the excavated dirt in order to keep the dust under control.

Unbeknownst to Mr. Pocialik, the excavation was being performed in a location where a buried temporary power line had been previously installed.  Before excavating, the defendants (the grading company and the general contractor) discussed that the power line ran below the intended excavation.  They thought it was buried three feet deep.  As such, they decided to excavate down only two feet, thinking such a precaution would prevent contact with the power line.  However, upon excavating, the line was struck, severed, and unearthed at only 21 inches below the surface grade.

California OSHA regulations and safety orders, industry custom and practice, and common sense dictate that prior to excavating over any electrical line, the exact depth and location of the line must be determined by “safe and acceptable means” — namely by using hand shovels to “pothole” down to determine the exact depth of the installation.  Intensive investigation, discovery , and multiple depositions taken in this matter revealed that the defendants had not complied with this requirement before excavating.

Reasonable prudence would also dictate that if an excavation was to be accomplished in such close proximity to a power line, then it was also required that the power be turned off before excavating — to prevent injury in the event of inadvertent contact with the line.  Additionally, if work is to be performed under such circumstances, then all involved workers should be informed of the potential for danger by having a “safety meeting” prior to commencing work.  In this case, everyone on the job site knew of the potential danger — except for Mr. Pocialik, who had not been informed by the defendants that the work was being performed in proximity to the buried power line.  Additionally, the defendant electrical contractor failed to install “underground warning tape” — which is a bright colored ribbon buried underground, but some six inches above the power line.   Had this warning tape been installed (as called for in the safety provisions of the construction contract between the general contractor and the electrical contractor) the operator of the scraper would have unearthed the warning tape first — and stopped the excavation immediately so that the power line would have never been unearthed.

The defendants argued vigorously that Mr. Pocialik was responsible for his own death — because he exited his water truck after the line was unearthed, and walked 40 feet over to the wire and grabbed it.  While no one knows for sure why Mr. Pocialik came into contact with the wire, the defendants argued that he should not have touched it under any circumstance — and to do so was negligent.  It was speculated that he grabbed the wire with the notion in mind that it was debris that was in the path of the excavation — and was being helpful by moving it.  In any event, he was electrocuted immediately upon contacting the line and died immediately.

The firm represented Mr. Pocialik’s mother, 62 year old Mary Pocialik.  She had a close, living relationship with her son.  They enjoyed attending church together on Sundays, and numerous other activities that they shared and had in common.  Mr. Pocialik sought only non-economic damages (i.e. loss of care, comfort, society, love, solace, etc . . . ) so presenting the damages aspect of the case to the jury in a sophisticated manner presented an extremely thought-provoking and emotional challenge for the trial attorney, Mr. Cohn.

Before trial, the defendants offered $250,000.00 on the case, and raised it to $300,000.00 during trial.  The firm demanded $600,000.00 on behalf of Mrs. Pocialik, and would have accepted $500,000.00 or less to resolve the case — to eliminate Mrs. Pocialik’s risk of going to trial.  There was certainly concern that the jury might consider to Mr. Pocialik to have been wholly at fault for his own death, or greater than 50% responsible.  In the end, the jury awarded $800,000.00 in damages, and found Mr. Pocialik only 10% at fault, with the defendants sharing 90% of the responsibility.  Keeping in mind that this verdict was for non-economic damages only, it represents a very substantial and respectable result from a conservative Orange County jury pool.