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 ].)
Mr. Stanley provided a computer generated diagram to aid the jury in understanding his analysis and the exact locations of the bus and the plaintiff at one second intervals prior to the collision. Mr. Stanley was questioned about the location of the plaintiff in the crosswalk at each second going back approximately five seconds. In so doing, the jury could clearly see from his diagram the distance between the plaintiff and the bus as she walked towards it.
Q: Okay. So are you able to go back and show where the pedestrian would have been prior to impact.
A: Well, yes, assuming a path, I can – she is moving approximately 3.2 miles per hour. and so at this next box back, the pedestrian has moved back about half a stride from where the point of impact was.
Q: Okay. And the next second back, how far?
A: And the next second back, she is approximately even with this line, this white line here.
Q: Okay. And the next second back?
A: The next second back, she is right here.
This line of questioning continues until the plaintiff is five seconds back demonstrating that the entire time the plaintiff is walking towards the point of impact, the bus is making its turn and clearly in her field of vision.
Mr. Stanley’s testimony therefore permits an inference that nothing obstructed plaintiff’s view of the bus prior to the impact. Thus, despite the contrary eyewitness testimony that plaintiff was hit by the front of the bus, the jury was entitled to conclude, that had plaintiff been paying attention while crossing the street, she should have seen the bus turning in front of her and could have avoided the collision. (See Vehicle Code § 21950, subd. (b) [a pedestrian crossing the street in a marked or unmarked crosswalk has a duty to exercise reasonable care for his or her safety]; Smith v. Sugich Co. (1960) 179 Cal.App.2d 299, 311 [“It is the duty of a pedestrian to exercise reasonable care while crossing a street in a marked crosswalk, and to continue to be alert to safeguard against injury, and such duty continues throughout his passage.”]) (See Part 5 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.