Articles Posted in Bus Accidents

The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Nonetheless, Dr. Sutton, plaintiff’s vocational rehabilitation expert, testified concerning plaintiff’s future earning capacity and potential lost earnings based on the unsupported assumption that plaintiff would have returned to work full time in the CAD industry. Dr. Sutton’s conclusions regarding plaintiff’s potential future earnings a CAD drafter, placing her in the 90th percentile in terms of salary, were based on speculation and conjecture. Moreover, Dr. Sutton made these assumptions about plaintiff’s future salary without knowing or evaluating what her salary rank had been the last time she was employed in the AutoCAD field. While plaintiff returned to school after being laid off from her position as a drafter to study English and accounting, she had not formally upgraded her CAD certifications.

Therefore, Dr. Sutton’s opinions regarding plaintiff’s potential future lost wages were based on pure speculation and cannot serve as a basis for the jury’s award. The evidence was not sufficient to support that plaintiff would have been able to successfully change jobs and would have advanced to the position of a senior CAD drafter.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Here, the jury’s award of $15.1 million in non-economic damages is excessive in light of the evidence and should be reduced by the court. While the evidence established that plaintiff suffered a severe brain injury, there was no evidence that plaintiff’s injury is so debilitating that she cannot function or perform daily activities. Kim Hind, plaintiff’s treating occupational therapist, testified that plaintiff was able to exercise independently, prepare and eat breakfast independently, could follow simple directions, was able to select clothes and dress without assistance as well as perform personal hygiene without assistance. Ms. Hind also testified that plaintiff was able to do laundry, vacuum, swim, and write checks all with minimal assistance. Plaintiff is ambulatory and able to walk without the assistance of a wheelchair, a walker, or any other device.

In light of plaintiff’s abilities to perform numerous daily functions that are a part of normal life, an award of $15.1 million in non-economic damages is grossly excessive. It is clear the jury made its award based on sympathy and passion, influenced by trial counsel’s improper “golden rule” argument, and not based upon the facts of the case.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

A NEW TRIAL IS WARRANTED BECAUSE THE DAMAGE AWARD IS EXCESSIVE.

This court has the explicit ability to grant a new trial based upon [e]xcessive. . . damages. (Code Civ. Proc., § 657, subd. 5.) The court’s discretion is particularly broad when it comes to excessive damage awards. The trial judge not only has the discretion to grant a new trial on the ground of excessive damages, but it is his duty to do so, or to provide for a reduction of the verdict, if under the evidence he believes it to be too large. (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 652; accord Handelman v. Victor Equipment Co. (1971) 21 Cal.App.3d 902, 909.) If the trial court concludes the jury awarded excessive damages, it may grant a new trial on liability as well as damages. (Collins v. Lucky Markets, Inc., supra, 274 Cal.App.2d 645, 649; accord, Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 443; see Code Civ. Proc. § 657, subd. 5.)

Alternatively, if the court finds excessive damages, it may order a remittitur in an amount that the court in its independent judgment determines from the evidence to be fair and reasonable and condition the denial of a new trial on plaintiffs’ acceptance of that reduced sum. (Code Civ. Proc., § 662.5.) In ruling on a motion for new trial for excessive damages, the trial judge sits as an independent trier of fact, not in an appellate capacity. (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 933.) This role as a fact finder is conferred on the trial court by Code of Civil Procedure section 662.5.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Well, this temporary job, to go through all these things, being in a coma, don’t go home, live in a rehab facility, have folks tell you when to get up, when to go to bed, going through all sorts of therapies, do that for almost two years, what would be a – what would be a fair hourly rate if you have to put in a classified ad to get one person to sign up, if you could, what’s an hour worth?

[” But think again about the classified ad. Classified ad: full-time job, thirty years plus, sign up today, sign up today, and you will be expected to do the things that [plaintiff] has had to go through and will have to go through the rest of your life. How many people would sign up for that? “].)

Counsel’s argument was nothing more than a thinly veiled attempt to ask each juror personally what he or she would expect as compensation for plaintiff’s injuries. Indisputably, counsel’s statements amounted to an improper golden rule argument that prejudiced the defense. Defense counsel objected to the improper argument, but the trial court overruled the objection.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

An argument that asks jurors how much money it would take to trade places with a severely injured plaintiff is impermissible for several reasons. First, “it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence.” (Cassim, supra, 33 Cal.4th at 798.) Second, it tends to denigrate the jurors’ oath to . . . render a true verdict according to the evidence. (Ibid.) Third, it can “tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing.” (Loth v. Truck-A-Way Corp., supra, 60 Cal.App.4th at p. 765.)

During closing argument in this case, plaintiff’s counsel asked the jury what amount of money it would take to convince someone, reading a newspaper advertisement, to submit voluntarily to the bus accident and injuries sustained by the plaintiff. Specifically, plaintiff’s counsel argued:
Say there is a classified ad in the newspaper that said: temporary job, sign up April the 7th and hold that job almost two years, 24 hours a day, seven days a week. . . . All you have to do: If you see a bus coming at you in the crosswalk, let it strike you, hit your head on the pavement, and then go to San Francisco — [defense counsel’s objection overruled] and then you go to San Francisco General Hospital. . . . So the ad says that after the pressure keeps rising, you just have to submit yourself to craniectomy. They go in and actually remove a part of the skull.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Mr. Stanley’s testimony concerning how the bus accident occurred was therefore sufficient to support the inference that plaintiff may have failed to exercise due care. (See Hasson v. Ford Motor Co., supra, 19 Cal.3d at p. 548 [ the fact that evidence is circumstantial does not mean that it cannot be substantial. . . . the jury is entitled to accept persuasive circumstantial evidence even where contradicted by direct testimony ]; see also Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 310 [the question of plaintiff’s comparative fault is for the jury if there is any evidence from which a jury might reasonably conclude that plaintiff failed to exercise due care for her own safety ]; Jarvis v. Southern Pac. Transportation Co. (1983) 142 Cal.App.3d 246, 254-255 [in personal injury action, the issue of contributory negligence was properly submitted to the jury where there was evidence from which the jury could reasonably infer that plaintiff should have heard the sounds or vibrations of the oncoming railroad boxcar].)

This testimony, even if disputed, was sufficient to allow the issue of plaintiff’s comparative fault to go to the jury. Accordingly, a new trial should be granted.

A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF’S COUNSEL’S IMPROPER GOLDEN RULE ARGUMENT ENCOURAGED THE JURY TO AWARD EXCESSIVE PAIN AND SUFFERING DAMAGES.

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Steve Black, an eyewitness to the accident, testified that “plaintiff was hit by the front of the bus as she was walking in the crosswalk.” However, defendant’s accident reconstruction expert, Paul Stanley, testified that, contrary to the eyewitness testimony, the point of impact occurred on the side of the bus, not at the front of the bus. Mr. Stanley explained that, based on the point of impact measured by the police officer at the scene and the location of the bus at rest, plaintiff came into contact with the driver’s side of the bus. (Neither the location of the bus at rest, as depicted by plaintiff’s photograph, nor the measurements of the police officer were objected to at trial).

Mr. Stanley further testified that, as the bus was turning left, it would have obscured Mr. Black’s view of the accident. Most importantly, Mr. Stanley testified that there was nothing between plaintiff and the bus that would have obstructed plaintiff’s view of the bus as she was walking toward it:
Q. If you go back two or three or four seconds or five seconds when you are doing your recreation, is there anything between the pedestrian and the bus that would preclude the ability to see the bus?
A. No. None at all
[Q. You’ve got two eyewitnesses say she was in front of the bus at the time of impact. But you have decided that she walked into . . . the left-hand side of the bus?
A. My hands are tied by the science. Like I said, it’s uncomfortable to face a jury and say, look, people are saying front, the physical evidence says side, and there is no physical evidence that lets me put it in front of the bus ].)

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

The court erred in removing the issue of comparative negligence from the jury as there was sufficient evidence to support a finding of fault on the part of the plaintiff.

It is well settled that the issue of comparative negligence is a question of fact for the jury where there is sufficient evidence to support an affirmative finding. (See Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [ Where contributory negligence is asserted as a defense, and where there is “some evidence of a substantial character” to support a finding that such negligence occurred, it is prejudicial error to refuse an instruction on this issue, since defendant is thereby denied a basic theory of his defense ] overruled on other grounds in Soule v. Gen. Motor Corp. (1994) 8 Cal.4th 548, 572.) Ordinarily issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. (Maxwell v. Colbum (1980) 105 Cal.App.3d 180, 186.)

Here, defendant stipulated it was negligent and that its negligence was a substantial factor in causing plaintiff’s injuries. Defendant, however, did not concede its affirmative defense of comparative negligence and requested that the jury be instructed on the issue of plaintiff’s comparative fault. Plaintiff’s counsel objected on the basis there was no evidence that could support a finding of fault on the part of the plaintiff. (Ibid.)

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

A NEW TRIAL IS WARRANTED BECAUSE THERE WAS SUBSTANTIAL EVIDENCE FROM WHICH A JURY COULD CONCLUDE THAT PLAINTIFF WAS COMPARATIVELY NEGLIGENT.

A directed verdict is appropriate only where there is no evidence to support a claim or defense.

A directed verdict is appropriate “only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630; see also Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479-480.) In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 629.)

A directed verdict may not be granted where there is any substantial evidence to support the claim or defense, “no matter how slight it may appear in comparison with the contradictory evidence.” (Howard v. Owens Corning, supra, at pp. 630-631; see also Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1149-1150 [even slight evidence in support of a fact to be inferred may be sufficient to allow the issue to go to the jury].)

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The following blog entry is written from a defendant’s position after a jury verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/brain injury case and its proceedings.)

Defendant, Universal Bus, LLC respectfully submits the following memorandum of points and authorities in support of their motion for a new trial:

INTRODUCTION

Defendant moves pursuant to CCP § 657 et seq, for a new trial on the claims made by plaintiff Jane Wong, a Sacramento resident. A new trial is warranted because:

1. The jury was not allowed to consider the comparative fault of the plaintiff despite evidence from which the jury could have reasonably concluded that plaintiff failed to exercise due care for her safety; and
2. Plaintiff’s counsel’s prejudicial and improper “golden rule” argument encouraged the jury to award excessive pain and suffering damages; and

3. The jury’s award of damages was excessive.

LEGAL ARGUMENT

THE TRIAL COURT HAS BROAD AUTHORITY TO GRANT A NEW TRIAL.

On a motion for new trial, the court reviews the entire case and, if it concludes that a miscarriage of justice occurred on any of the grounds delineated in Code of Civil Procedure § 657, it must grant a new trial. (Mercer v. Perez (1968) 68 Cal.2d 104, 111.)

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