Facts

On Dec. 20, 2002, at 5:15 p.m., plaintiff Joe Tamas was traveling northbound in the number 2 of three lanes on Sepulveda Boulevard in Los Angeles when a vehicle swerved into his lane. It had swerved to avoid a third vehicle as it exited from a commercial driveway. Tamas, a 52-year-old certified automobile mechanic and small business owner, was seriously injured when he lost control of the 1990 VW Jetta he was driving and collided with a motor grader parked in the center median area.

Defendant T.L. Pavlich Construction Inc., which had contracted with the Los Angeles Department of Water and Power (DWP) to complete a public works project involving the installation of an underground pipeline, covering approximately five miles, owned the motor grader. Installation of the pipeline affected only the southbound lanes of Sepulveda Boulevard where two of the lanes were closed to traffic due to the construction work. The center divider of the roadway was used as a work area and staging area for equipment, including the subject motor grader, a crane, a water truck, and pipes 96-inch in diameter, 40-feet in length, weighing 35 tons. The work area was separated from northbound Sepulveda by solid double yellow lines and oversized orange plastic cones positioned approximately every 20 feet.

Maintenance of traffic flow and traffic safety within the construction area was subject to specifications set forth in a Traffic Control Plan approved by the DWP and the Los Angeles Dept. of Transportation (LADOT). T.L. Pavlic Construction Inc. was required to carry out construction for the project pursuant to the Traffic Control Plan. Whereas the DWP required only two feet of space between the roadway and parked equipment, the motor grader was parked three feet from the number one lane of northbound Sepulveda Boulevard and was barricaded in compliance with the requirements of the Traffic Control Plan.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that defendant was negligent in parking the motor grader so close to the roadway and that it would have been safer to park it closer to the center of the work area. Plaintiffs also contended that even if the motor grader was parked legally, defendant was negligent because defendant did not park the motor grader in the safest way possible.

Plaintiffs argued that defendant should have barricaded the motor grader with, for example K-rails to protect vehicles that might turn off the road from colliding with the motor grader.

Plaintiffs' traffic expert, Weston Pringle, argued that various CalTrans regulations and AASHTO guidelines required a "clear zone" between the roadway and the work area.

DEFENDANT'S CONTENTIONS:
The LADOT engineer who approved the final Traffic Control Plan testified that defendant's motor grader was parked in compliance with the plan.

Traffic engineering expert, John Squier, testified that the contract between the DWP and T.L. Pavlich Construction, Inc. provided that the contrator's equipment was to be parked in the work space and that the motor grader was properly parked within that work space. Mr. Squier further testified that the work space was closed off to traffic. Mr. Squier stated that K-rails were not required unless excavation was being done within five feet of the traveled roadway. Mr. Squier testified that "clear zones" were not designed for, nor practical when construction was being done on a low-speed urban street. Rather, it was necessary to balance the safety of the public and workers with the ability of the contractor to complete his work while maintaining traffic flow through the construction area. Because of the limited space in an urban setting, "clear zones" are not used.

Defendant's accident reconstruction expert, Dr. Marc Firestone, testified that since plaintiff's vehicle struck the motor grader at a large angle, close to 90 degrees, plaintiff's injuries would have been no different had he struck a K-rail which is only effective for small angle collisions. Dr. Firestone testified that parking the motor grader a few feet further from the roadway would not have made a significant difference in the force of plaintiff's impact with the motor grader.

Settlement Discussions

There were three mediations and several mandatory settlement conferences. During the final mandatory settlement conference, just before the second trial, plaintiff rejected a settlement offer of $350,000. Plaintiff subsequently raised his $1,000,000 CCP section 998 offer to $1,350,000.

Injuries

Plaintiff suffered a fractured left femur, which required the surgical insertion of a rod and a bone graft. Due to various complications, he underwent three subsequent surgeries, leaving his left leg shorter than the right. He also suffered a heart attack at the scene of the accident or shortly thereafter and a neck fracture at the C5 level, requiring the surgical insertion of screws and hardware. Plaintiff argued that his shortened left leg put added stress on his knees, ankles, hips, and lower back resulting in his need for ankle fusion surgery in 2010 and a right knee replacement in 2011 and as well as chronic lower back pain and depression. Plaintiff also claimed that he lost several teeth as a result of the accident. He further claimed that he might need a left knee replacement and hip replacements in the future. Plaintiff claimed approximately $335,000 in past medical specials, approximately $300,000 in future medical specials, and asked the jury for $1,000,000 for past pain and suffering and $1,300,000 for future pain and suffering, totaling $2,935,000. Plaintiff owned his own automobile repair business and claimed that he had to close the business because his injuries prevented him from doing the heavy physical work of an automobile mechanic.

Result

Defense verdict.

Other Information

The case first went to trial in June 2006, and ended with a hung jury. The two other drivers settled with plaintiffs before the first trial for payment of their insurance policy limits of $100,000 each. DWP settled with plaintiff before the first trial for $5,000. Plaintiff Maricruz Tamas, claimed loss of consortium, but agreed to dismiss the claim for a waiver of costs before the second trial.

Deliberation

six days

Poll

9-3 (defense)

Length

four weeks