Over 6 Million Dollars Recovered Collision between county bus and asphalt roller vehicle results in amputation of foot/shattered arm.

Facts/Contentions

According to plaintiff: This consolidated action with cross-complaints arose out of a collision between a bus and an asphalt roller.

Plaintiff Ronald Daneault claimed that a county bus failed to yield the right-of-way and that other defendants contributed to an accident in which the county bus struck an asphalt roller vehicle operated by Daneault.

Defendants denied liability and argued contributory liability of the other defendants. The plaintiffs were Ronald Daneault, the asphalt roller operator, and Anna Fuller and Mary Ann Loya, two passengers on the bus who were injured. The defendants/cross-complaints / cross-defendants were Dave Transportation Authority, Abundio Martinez and the City of Costa Mesa. The cross-defendants / cross-complaints were R.J. Noble Company and Nacco Materials Handling Group Inc. dba Hyster Company. The intervener was State Compensation Insurance Fund.

The traffic collision occurred on March 13, 1997 at approximately 5:10a.m., in or near the southbound lanes of Harbor Boulevard, which was approximately 150 feet south of the intersection of Mesa Verde Drive East in Costa Mesa. The bus involved was owned by and registered to the Orange County Transportation Authority (OCTA) and was operated by defendant Martinez. The accident resulted when defendant driver, who was traveling between 40 and 65 mph, made and unsafe lane change and struck asphalt roller vehicle owned by plaintiff Daneault. The markings and signage on the bus identified it as an OCTA ACCESS paratransit vehicle providing special scheduled pickup and drop off services for disabled individuals.

As a result of the collision, the eight to 10-ton roller overturned, pinning Daneault’s feet between the drive roller and the curb. Daneault was not successful in freeing his feet until the front of his right foot was traumatically amputated by the roller wheel. The roller also crushed his left foot. His left arm was shattered into many pieces, probably at the time of impact when the bus initially struck the asphalt roller. His eyelid was lacerated and he also sustained numerous other physical and emotional injuries. R.J. Noble owned and provided the asphalt roller. Daneault was an employee of Cal-Mex Engineering but was on lease to R.J. Noble. The workers compensation insurance insurance carrier paying Daneault’s benefits was Cal-Mex Engineering and did not enter the action as a lien claimant or as an intervener.

At the time of the collision, Harbor Boulevard was under heavy construction and lane closures were in effect for certain lanes in both directions.

In the specific area of the accident, the entire lane 3 was coned off and shut down for asphalt repair and bus pad installation. Large wood barricades, cones and lane closure signs were present. There was no signage, however, adequately meeting the requirements of a construction area and/or specifying a 25 mph speed limit. Also at the time of the collision, an R.J. Noble Company pickup truck acting as a “chase” or “traffic” vehicle was trailing the asphalt roller vehicle operated by Daneault by a distance of 25 to 50 feet. The driver of the chase vehicle was Robert “Raul” Pedroza, an employee of R.J. Noble Company. At the time of the collision, the trailing R.J. Noble Company pickup truck apparently had stopped for several seconds to respond to Robert M. Barnekow, an employee “leased” to R.J. Noble Company by Pavement Recycling Systems Inc., who had called out to Pedroza from the other side of Harbor Boulevard.

The bus passed the trailing pickup truck in a hazardous and unsafe manner at which time the right side of the passenger portion of the bus struck the rear left portion of the asphalt roller vehicle operated by Daneault. As a result of the collision, the impact of the bus caused the asphalt roller vehicle to spin approximately 180 degrees and roll over before coming to rest on its side. The force of the collision ejected Daneault from his seat on the asphalt roller vehicle, up and over the control console and onto the ground under the spinning roller, causing his injuries and damages.

Daneault alleged that the accident was primarily caused by defendant Martinez, who testified that he simply did not see the asphalt roller until it was too late to avoid hitting it despite his attempts to avoid Daneault. Just prior to the point of impact. Martinez had yawned and expressed to a passenger that he was sleepy. The passenger testified that the first and last thing she noticed prior to the collision were the lights on the asphalt roller. A witness from across the street testified that he observed the bus traveling at approximately 60 to 65 mph. The Costa Mesa police did a reconstruction in which they estimated from brake skid marks that the bus was traveling approximately 40 to 45 mph after the collision impact occurred. Martinez did not brake prior to the impact but only applied brakes after the collision occurred. The police found Martinez to be at fault and in violation of Vehicle Code section 21658(a), and unsafe lane change.

Daneault further alleged that Dave Transportation, as the employer, was responsible for Martinez’ negligence. He also alleged that OCTA

VEHICLE NEGLIGENCE
Motor Vehicle v. Motor Vehicle: Miscellaneous/ Lane Change/ Right-of Way
COURSE AND SCOPE OF EMPLOYMENT PREMISES LIABILITY
Dangerous Highway: Miscellaneous
ORANGE COUNTY SUPERIOR COURT
Daneault v. Dave Transportation Services Inc., No. 781864.
Robert D. Monarch.

SETTLEMENT RESULT: $6,027,014
$3,870,000 payable to Ronald Daneault now as follows: $3,000,000 by the bus company, $800,000 by the City of Costa Mesa and $70,000 by Hyster Roller. Plus Daneault will also receive $4,494 per month, guaranteed for 20 years (total value of structure only over life expectancy is an additional $2,157,014)

TRIAL COUNSEL
Plaintiff: Stephen A. Jamieson, Solomon, Saltsman & Jamieson, Playa del Rey. Stephen W. Solomon, Solomon, Saltsman &Jamieson, Playa del Rey.

Defendant: J. Alan Frederick, Marrone, Robinson, Frederick & Foster, Burbank. James C. Nichols, Krimen & Bjornsen, Monterey Park. Marcus Mclaughlin, Law Offices of Marcy Mclaughlin. Marla Lamedman Kelly, Booth, Mitchel & Strange, Costa Mesa. Pamela Swindells, Kaiser & Swindells, Long Beach. Richard S. Stout, Christensen & stout, Brea. Sandra Montag, Law Offices of William I. Chopak, Costa Mesa.

Over 6 Million Dollars
RECOVERED
Collision between county bus and asphalt roller vehicle results in amputation of foot/shattered arm was responsible for the actions of Dave and its driver since it was a common carrier and OCTA had a nondelegable duty to the public. Dave was employed by OCTA under a contract dated May 22, 1995 by which Dave was to provide management and operation services for its paratransit services in Orange County.

Daneault also alleged that although this was a construction site area, according to the police it was not adequately signed for a construction zone and there were no signs prohibiting speeds in excess of 25 mph. Daneault alleged that defendants City of Costa Mesa and R.J. Noble, as its hired construction company, owned, managed and/or directly or indirectly controlled the southbound lanes of Harbor Boulevard at the time of the accident and thus had the power to prevent, remedy or guard against the dangerous conditions. The subject property was therefore inherently defective and in potentially dangerous condition at the time of the accident.

Claimed Injuries

According to plaintiff: Ronald Daneault: Traumatic amputation of the right foot; crushed left foot; shattered left arm; lacerated eyelid; numerous other physical and emotional injuries.

Claimed Damages

According to plaintiff: Ronald Daneault: $223,208 past medical (to date, the workers compensation carrier has paid the bills but might be entitled to some reimbursement); approximately $50,000 future medical (future surgery); $91,300 past economic loss; approximately $673,000 future loss of earning capacity as discounted to present value; reasonable compensation for pain and suffering and emotional distress.

Settlement Discussions

According to plaintiff: Demand: $6,000,000. Offer: None. The settlement was reached one year and seven months after the case was filed Experts Plaintiff: Stephen Becker, orthopedic surgeon, Irvine Orthopedic Associates, Irvine (714)727-3636. Kenneth A. Solomon, Ph.D., safety engineer/accident reconstructionist, Institute of Risk and Safety Analyses, Woodland Hills (818) 348-1133. Mark S. Sanders, PhD., human factors consultant, Sherman Oaks (818) 784-7041. Raymond G. Schultz, PhD., economist, Ibar Settlement Co. Inc., San Marino (626) 570-4888. Harry J. Krueper, civil/traffic engineer, Krueper Engineering & Associates Inc., San Bernardino (909) 884-2159. Timothy Ruest, accident reconstructionist/biochemist, Valencia (805) 257-8189. Ted Tanzer, orthopedic surgeon, Santa Ana (714) 542-9339. Heidi Paul, PhD., vocational rehabilitation consultant, San Marino (626) 796-3901. Edward Rivto, psychiatrist, UCLA, Los Angeles (310) 476-5109. Rod Cuervo, prosthetist, Orange (714) 639-7422. Lenard Prutsak, plastic surgeon, Orange (714)997-9078. Stuart A. Green, physician, Los Alamitos (562) 430-3561. William Annan, physician. Diana L. Karg, physician. J. Dean Mollner, physician. Ramani Nathan, physician. Joseph Klemek, physician. Joseph Brugman, physician. David L. Rodibaugh, physician. Gary Levine, physician. Timothy K. Ogawa, physician. Nanette Galveson, nurse. Cecilia Latapie, nurse. Gloria Garcia, nurse. Kathy Sherman, case manager. Donald D. Kronholm, engineer, Nacco Material Handling Group Inc., Portland, OR. Defendant: Geoffrey M/Miller, orthopedic surgeon, Manhattan Beach (310) 796-0705. C. Phillip O’Carroll, neurologist, Newport Beach (714) 759-8001. Edward D. Ruzak, civil/traffic engineer, Ed Ruzak & Associates, Fountain Valley (714) 964-4880. Sam Y. Salloum, accident reconstructionist. Norm Johnson Associates, Los Alamitos (562) 493-2431. Edward L. Workman, Ed.D., vocational rehabilitation consultant, Workman Morris Moilina, San Clemente (714) 964-4880. Sam Y Salloum, accident reconstructionist. Norm Johnson Associates, Los Alamitos (562) 493-2431. Edward L. Workman, Ed.D., vocational rehabilitation consultant, Workman Morris Molina, San Clemente (714) 492-6260. Kerry A. Berg, accident reconstructionist, Kerry A. Berg , accident reconstructionist, Kerry A. Berg & Associates Inc., Riverside (909) 784-4505. Richard W. Rauseo, safety engineer, San Dimas (626) 859-2400. Paul S. Guthorn, metallurgic engineer, Voller-Gray Engineering Laboratories, Long Beach (562) 437-6468. Robert F. Douglas, highway design engineer, Vollmer-Gray Engineering Labs, Long Beach (562) 437-6468. Jerry D. Dunham, safety engineer/accident reconstructionist, Forensic Expert Advisors Inc., Big Bear Lake. Henry J. Kahrs, certified public accountant, RGL/Gallagher LLP, Orange (714) 740-2100. Robert Benson, radiologist, Tustin Imaging Center, Tustin. David Denenny, orthopedic surgeon, Orange. Robert Dreibelis, physician, Tustin. Frederick Birnberg, physician, Hoag Memorial Hospital Presbyterian, Newport Beach. Michael Black, radiologists, Santa Ana Tustin Radiology Medical Group, Santa Ana. Michael G. McCalley, radiologist, Santa Ana Tustin Radiology Medical Group, Santa Ana. David Cohen, physician. Robert Stroup, physician, Western Medical Center/Santa Ana, Santa Ana. Expert Testimony According to plaintiff: Heidi Paul, Danaeult’s life care planner and vocational rehibiltation expert, opined that Daneault is permantly and severely disabled with a “profound” loss of access to the competitive labor market under two separate scenarios: with left arm immobility and right leg amputation-loss of access to the competitive labor market at 90-100 percent. Daneault has no feasibility for academic training. He will need attendant care. His life care needs, assuming his arm is amputated, are roughly $1.6 million as discounted to present value. Comments According to plaintiff: Daneault was immediately transported to Western Medical Center by Costa Mesa Fire Department ambulance.

Thereafter, he was treated by Ted Tanzer, and orthopedist, and Leonard Prutsok, a plastic surgeon. The doctors initially removed the heel portion of Daneault’s right foot, tried a prosthetic on the heel front of the and placed many metal plates and screws in the left arm elbow area. Daneault initially stayed in the hospital for 29 days. He then returned to the hospital and was admitted on five additional occasions for a total of 71 days for various operations to his arm and leg. Subsequently, all of the plates and screws had to be removed from the arm because of chronic infection. Ultimately, his right leg was amputated to the knee.

A three-inch piece of bone from the amputated leg was grafted to his left arm in March 1998. The left arm continued to remain infected. Daneault has almost no range of motion or usefulness of the left arm. The doctors were prepared to testify that to a medical probability they would need to amputate his left arm as well. Several muscle and skin grafts to the heel and foot were performed. Daneault is continuously in great pain.

At the time of the accident, Daneault was earning approximately $25.03 per hour plus benefits. At that rate, without discounting to present value and assuming total disability, in the competitive labor market, the loss was $91, 3000 for past economic loss and approximately $673,000 for future loss of earning capacity, as discounted to present value.

Daneault suffers and will continue to suffer, great pain from the incident and he claimed a reasonable compensation for pain and suffering and emotional distress. He can no longer participate in recreational activities like snow or water skiing, hiking, camping or playing golf with his son. He cannot do simple things like hold a heavy plate. It will get worse as he gets older. His life expectancy is another 36 years. Thomas O. Goodney of Platteville, Wisconsin designated by plaintiff Daneault as an expert witness. There was no other information provided for this expert.

Plaintiff Ronald Daneault was named as defendant in complaints filed by plaintiffs Loya and Fuller and those complaints were consolidated. Case number 781864 was consolidated with 78912 and 789852. Sandra Montag represented the City of Costa Mesa and R.J. Noble Company. Pamela Swindells represented Dave Transportation Authority and Abundio Martinez. J. Alan Frederick represented Nacco Materials Handling Group Inc. dba Hyster Company. Marla Lamedman Kelly represented Ronald Daneault as a defendant. Richard S. Stout represented plaintiff Mary Ann Loya. Marcus Mclaughlin represented plaintiff Anna Fuller.

Solomon Saltsman & Jamieson are attorneys practicing in the areas of ABC law, ABC Appeals Board cases, and all related Land Use Matters such as City and County Conditional Land Use Permits, Variances, Police and Fire Permits, Entertainment Law, Gaming Law, as well as Personal Injury litigation. Solomon Saltsman & Jamieson can be contacted at 800-405-4222.