Articles Posted in Bus Accidents

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

6. All eyewitnesses at trial contradicted Ms. White’s hearsay testimony.

During trial, the jury was presented testimony of three eye witnesses other than Petra White to events immediately surrounding a bus versus pedestrian collision: (1) Mrs. Timmon (2) Tina Jones, and (3) Kim Perry. It was uncontroverted that Elm Street’s westbound traffic light was green for both Chance and the bus as the bus entered the southern pedestrian crosswalk at the intersection of 4th and Elm. All these eyewitnesses testified they saw this pedestrian walking (not bolting) in the southern crosswalk before the bus turned into that crosswalk, except defendant’s bus driver who failed to see Chance at all. Ironically, no one had a view better view both south and east of the southern crosswalk of 4th and Elm than the bus driver — had he chosen to look that way.

Unless all four (including White) non-party eyewitnesses were wrong about seeing this pedestrian near or on fourth Street before seeing the bus turn left from westbound Elm St. to southbound 4th Ave., Ms. Chance was clearly visible to the bus driver (as White testified) if had he looked to his left from his position as he described during trial before he hit her. The only credible explanation for not seeing her as she approached the curb and or entered 4th Street is that Davie did not look in her direction or her image in his fisheye rear view mirror did not register in his consciousness. When turning left from a one-way street to another one-way street, the only vehicle traffic that potentially threatens the turning vehicle will be from its right, which is where Davie’ attention obviously was. (See Part 12 of 13.)

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

4. In the present case, Officer Smith had no physical evidence to support his jaywalking opinion.

There was no physical evidence that demonstrated Ms. Chance was anywhere but inside the crosswalk from the time she left the curb until being knocked out of hem shoes by Davie’s bus except White’s hearsay statement. Officer Adams also had noted nothing that could be construed as evidence of where Ms. Chance was at the time she was hit. Since she was found shoeless and sitting in front of the stopped bus, she must have been thrown from someplace earlier in the bus’s path which logically would be somewhere underneath the 40-foot-long stopped bus, whose southernmost point was only18 feet below the Elm Street curb line according to Smith’s measurement. That position would have the bus straddle the subject crosswalk whose borders were defined by the red painted curb only 8 to 10 feet distant (18 feet minus the width of the sidewalk) from the southern most point of the stopped bus.

5. Officer Smith had no reliable hearsay to help form his opinion.

In addition to having no relevant physical measurements to identify the point of impact, Officer Smith had only the hearsay description of Chance’s conduct according to Ms. White that, considering her claimed vantage point of view for this description was impossible for her to have seen.

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

3. Further, since Officer Smith’s opinion does not fit into any legally recognized exception to this rule, his opinion is inadmissible.

The recognized hearsay exceptions admit out-of-court statements for their truth on the theory that the underlying circumstances carry the necessary indicia of trustworthiness to make the declarant’s statement sufficiently reliable as substantive proof (e.g., a party would not have made a disserving admission unless the admission was true; a nonparty declarant would not have spoken against his or her interest unless the statement was true, etc.). [See Williamson v. United States (1994) 512 US 594, 599, 114 S.Ct. 2431, 2435; People v. Cudjo (1993) 6 C4th 585, 608, 25 CR2d 390, 404 – hearsay exceptions involve circumstances affording some assurance of trustworthiness to compensate for absence of oath, cross-examination and jury observation.

There is case authority allowing a percipient investigating officer to estimate the location of the point of contact based on physical measurements of which he has percipient knowledge and reliable hearsay statements. Arellano v. Moreno (1973) 109 Cal.Rptr. 421 Cal.App.2.Dist. Possible partial hearsay basis of police officer’s opinion as to location of point of impact went to weight and not to admissibility of opinion where hearsay was reasonably reliable. A police officer trained and experienced in investigation of traffic accidents and in rendering of official reports on the facts and causes of the same may give expert testimony as to point of impact when his opinion is based upon his inspection of the physical evidence at the scene of the accident, however, his opinion as to point of impact is not admissible when based on what witnesses told him rather than on what he himself observed. Francis v. Sauve (1963) 222 Cal.App.2d 102, 115. (See Part 10 of 13.)

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

1. Officer Smith’s opinion was based exclusively on one unreliable hearsay witness: Petra White.

What Petra White told Officer Smith at the scene of the accident was quintessential hearsay not subject to any legally recognized exception:
Q. As best you recall, what did Ms. White tell you?
A. [Smith] She said she was on the northeast corner of Fourth and Elm, waiting for the light to turn green so she could continue southbound. She said that she saw a lady bolt from the east curb toward the west in a diagonal direction, I guess, if you will. Then the bus hit her, and then she had flown out of her shoes and she landed in front of the bus.
Q. When she indicated this diagonal direction, did she indicate whether or not this woman bolted in a diagonal direction toward the north or toward the south?
A. [Smith] Toward the south.
Q. So, away from the intersection?

A. [Smith] Correct. (Smith 4/28/08 RT15:9-23)

2. The content of the above testimony is pure hearsay, that is: an out of court statement offered to prove the truth of the matter asserted.

Rationale for Excluding Hearsay-Trustworthiness: The hearsay rule is predicated upon the essential trustworthiness or reliability of evidence. [People v. Ayala (2000) 23 C4th 225, 268,- The general rule that hearsay evidence is inadmissible because it is inherently unreliable is of venerable common law pedigree.] Unlike in-court testimony based on a witness’ firsthand knowledge, an out-of-court statement is not subject to cross-examination to test the declarant’s perception, memory and veracity when the statement was made. Lacking the be refit of cross to probe the declarant’s perception, memory and veracity, hearsay evidence is inherently unreliable as substantive proof. Buchanan v. Nye (1954) 128 CA2d 582, 585, — essence of hearsay rule is requirement that testimonial assertions shall be subjected to the test of cross-examination.]

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

D. There was an error in law in permitting Officer Smith to testify as to Chance’s Vehicle Code Violation where he was not designated as an expert, not deposed as such, and based his opinion only on inadmissible hearsay. (C.C.P. section 657(7)).

In Richard v. Scott (App. 4 Dist. 1978) 144 Cal.Rptr. 672, 79 Cal.App.3d 57, the court was presented with an injury action arising out of a two-car collision at a controlled intersection. In that case the trial court correctly exercised its discretion in granting plaintiff’s motion for new trial on ground that it had committed error in admitting opinion of defendants’ accident reconstruction expert that plaintiff was traveling in excess of posted speed limit. The record supported trial court’s determination that many of the factual assumptions made by such expert in arriving at his opinion lacked sufficient evidentiary support.

According to all non-party eyewitnesses, Ms. Chance was very visible walking up to, into and in the crosswalk before the bus turned into her path 26 feet beyond the Eastern curb. Since Davie himself testified that the traffic light was green for him as he timed it, it would also have been green for Plaintiff Chance who consequently had the right of way over the bus since she was not turning.

Following this presentation of testimony, the jury was instructed as follows:
(1) CACI 700 Provides in relevant part: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians … The failure to use reasonable care in driving a vehicle is negligence. Also,
(2) CACI 705. A driver must use reasonable care when turning; and

(3) CACI 710. The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.

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

3. Percipient non-party witness #3, Kim Perry saw Ms Chance walking “normal for an old person” in the crosswalk before a big bus turned left striking her in the center of the crosswalk. (RT of Perry’s Direct Testimony, 13:10 – 14:13.)

Argument: Like Jones, Perry was more distant and lower to the ground than Davie sitting high in the front seat of a bus with panorama window view including his left and front. (Trial Court Exhibit No. 1, Exh. 7). But for his concern about oncoming southbound traffic on Fourth Street coming from his right, there was no reason he should not have seen Chance as he approached and entered the intersection.

4. Even hearsay non-party witness #4, Petra White, in her sworn deposition, had no problem seeing Chance and indicated that the bus driver saw her as well. White reports seeing the bus start and stop several times in response to Chance stepping off and then retreating back onto the east curb before she entered the crosswalk. (White Depo., 39:14 – 41:20.) Further, White admits to seeing Chance leave the eastern curb of Fourth Street either 8, 4, or 5 feet south of the Elm Street Curb walking straight then losing sight of her due to the bus blocking her view until seeing Chance struck by the front of the bus, knocked out of her shoes and carried by the bus some distance before dropping to the street. (White Depo., 15:7-25; 20:15.)

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

SUMMARY OF EYEWITNESS TESTIMONY

All three non-party eyewitnesses testified they saw a pedestrian (Chance) walking in the crosswalk before the turning bus struck her:

1. Percipient non-party eyewitness #1, Annie Timmon, was a passenger on the subject bus sitting behind the driver. She testified via videotape that while sitting at a window several rows behind Davie, she saw Ms Chance walking “normal” on the sidewalk alongside the bus before it turned. She saw Ms. Chance walking beyond the curb, after he front of the bus had also entered the intersection. Ms. Timmon testifies: I saw they were going to touch… I thought I was in Mexico, and in Mexico the pedestrian waits in the middle of the street waiting for the bus to go by. I thought that she was going to stop at the center at the cane – the lane that it’s at the center. And when I saw that she was about to have contact with the bus, then I screamed… Q: Did you see what happened to this pedestrian? A: No … I couldn’t see. Q: Where was the pedestrian when you last saw her? A: Ahead when she was about to have contact with the bus. (Timmon Depo., 16:7 – 18:1.)

Argument: This testimony clearly supports Plaintiffs contention that a normally walking Chance was visible to the left of the bus driver Davie after he had entered he intersection but before he started to turn left striking her. Since she was walking alongside the bus, she was in the crosswalk area just having exited the sidewalk. Molly Chance had every right to enter the crosswalk on a green signal even after the bus had entered the intersection because she was walking straight and therefore had the right of way over the turning Davie just like eastbound pedestrians Davie had stopped for. If Timmon could see Chance as bus and pedestrian passed each other, certainly Davie should have seen her too, if he had looked to his left.

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

Although Chance’s ten-year-old car accident failed to illuminate any issue before the jury, the information did help assuage any pangs the juror’s consciences may otherwise have felt for leaving her disabled and confused for the rest of her life without compensation. When they learned, again over Plaintiff counsel’s objection, that Ms. Chance concealed/forgot a 10-year-old automobile accident during which she broke her leg without head trauma and that Ms. Chance was treated at that time under a different name, she was the subject of jury speculation as to her character for lying and fraud.

However, under the influence of the aforementioned improper and fatally prejudicial testimony, the jury was motivated to and the majority of them did ignore the courts instructions and failed to deliberate any evidence inculpating Defendant of negligence. The jury was charged as its first task to answer the special verdict question: Was Defendant Davie of USA negligent? Instead of taking the trouble to consider three days of testimony, photographic evidence and law provided them to answer that question, as juror Mike Brown’s declaration makes clear, the jury majority jumped to the question Was Molly Chance negligent? which required no time or thought at all based on their vivid recollection of Police Officer Smith’s opinion and their newly acquired negative predisposition to a lying, “cheating” Chance.

C. There is insufficient evidence to support the jury’s verdict. (C.C.P. section 657(6))
In Hendricks v. Pappas (App. 1947) 82 Cal.App.2d 774, 187 P.2d 436, the trial court granted the plaintiffs new trial motion following a jury trial involving an action against a motorist by a pedestrian for injuries sustained by the pedestrian when struck by automobile while he was crossing street.

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

B. It was an abuse of discretion for the court to allow remote, irrelevant but highly prejudicial testimony to be admitted concerning Chance’s ten-year-old traffic accident and hospitalization. (C.C.P. section 657(1))

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will … (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Ev.C. § 352.

Defendant argued and the court ruled that the relevance of this information went to the veracity of the Chance but this analysis is flawed in two ways:

First, Ms. Chance’s “veracity” was never in issue. No fact or contention at trial was supported by her testimony and was never solicited by either party. Because of her brain injury and retrograde amnesia, she neither testified as to how the accident happened nor to the nature and extent of her injuries. A fortiori, both sides extensively tested her for signs of attempts to game the mental impairment evaluation process. On all occasions she passed with high scores for veracity. Brain damage is a significant part of Chance’s consequential damages as presented by multiple eminent mental health care professionals including defendant’s own designated neuropsychologist expert, Dean C. Delis, Ph.D., Professor of Psychiatry, UCSD School of medicine. The fact of her brain injury was also evidenced just days after the bus accident at the brain injury clinic referral in the initial emergency hospitalization discharge records. As such, Chance’s cognitive faculties were objectively proven to be permanently impaired including memory and judgment without any reliance on her direct testimony.

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

LEGAL STANDARD FOR MOTION

C.C.P. section 657 provides, in part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury.
3. Insufficiency of the evidence to justify the verdict or other decision.

4. Error in law, occurring at the trial and excepted to by the party making the application.

ARGUMENT

A. Ignoring the Court’s Limiting Instruction as to the Import of Officer Smith’s Determination of Chance’s Violation of the Vehicle Code was Misconduct of the Jury, as Was their Refusal to Deliberate the Foundational Facts of Officer Smith’s Opinion (C.C.P. section 657(2))

Following Officer Smith’s testimony opining Chance was in violation of the vehicle code by her failure to yield right of way to oncoming traffic outside a crosswalk (CVC 219548(a)) aka jaywalking ) the court gave the jury a limiting instruction as follows: The officer’s determination that Ms. Chance violated the vehicle code does not mean that she’s at fault. He is not saying who is at fault for the accident, so that everyone is aware of that. (Reporter’s Transcript ( RT ) of Smith’s Testimony, April 28, 2008, 31:5-8.) According to the declarations of Jurors Mike Brown and Alice Greene, the jury disregarded that instruction instead treating Smith’s opinion as a finding of fault inculpating Chance of the accident. Compounding that misconduct, the jury then refused to deliberate the evidence that contradicted Smith’s opinion despite exhortations of the jury foreman to do so. In Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 65 Cal.Rptr.2d 321, the cour: explained that the jury must deliberate collectively. In that case, prior to deliberations, one juror wrote out a statement of her opinions and read it to the other jurors. The Court explained that this was permissible only if that juror was willing to continue with deliberations as required by C.C.P. section 611. The trial court accurately explained to the jury that A position on paper does not add or detract from anything, except that you may not simply say, Here. Read this, I have nothing else to say,’ because, if you do that, you are not deliberating. Id. at 262.

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