Facts

On Nov. 10, 2006, at approximately 6:35 p.m., Dianne Smith, age 53, was driving her 1996 Saturn northbound in the number two lane on Mooney Boulevard in Tulare, approaching the intersection within Prosperity Avenue. Smith's eight-year-old daughter, plaintiff Galadriel Mills, was seated in the back seat, passenger side, in a booster chair. Both occupants were wearing seat belts.

At the above time and place, Smith was preparing to move over into the left turn pocket on Mooney Boulevard so that she could turn left westbound onto Prosperity Avenue. The intersection of Mooney and Prosperity was controlled by electronic traffic signals, with turn arrows controlling the turn lanes. The posted speed limit on Mooney Boulevard was 60 m.p.h.

At approximately 6:35 p.m., defendant Gerrid Climer was driving his girlfriend's father's new 2007 Chevrolet Tahoe SUV southbound in the number one lane of Mooney Boulevard at about 55-60 m.p.h., as he approached the intersection of Prosperity from north of Prosperity.

At the same time defendant Hans Javier Gutierrez-Hermosillo (Gutierrez) was driving his 1982 VW Rabbit within the course and the scope of his employment as a Pizza Hut delivery person. Gutierrez was already within the northbound left turn lane of Mooney with the intent to turn westbound onto Prosperity.

At approximately 6:36 p.m., while making his turn, Gutierrez's VW impacted into the left rear wheel well and fender of the Tahoe driven by Climer within the intersection of Mooney and Prosperity, as a result, Climer's vehicle lost control in a counter clockwise way. The Tahoe ultimately struck the raised center divider along Mooney, about 145 feet south of the intersection, causing the Tahoe to become airborne.

The left front of the large Chevrolet Tahoe impacted into the A-pillar on the driver's side of the Saturn, mortally injuring Dianne Smith and trapping her daughter in the back seat. Galadriel was ultimately removed from the vehicle with relatively minor physical injuries, but in substantial emotional distress.

Following the impacts, Gutierrez briefly approached Climer at the scene and claimed that he had a green arrow when his vehicle collided with Climer's. Climer responded by telling Gutierrez that it was not true that Gutierrez' arrow was green and went on to state that he, Climer, entered the intersection on a green light.

Gutierrez responded by fleeing the scene before the police and paramedics arrived.

PLAINTIFFS' CONTENTIONS:
Decedent Diane Smith's husband, Frank Mills and her daughter, Galadriel Mills, filed a wrongful death lawsuit. Galadrial also sued for her own injuries. Plaintiffs contended that regardless of which party had the right of way, both defendants had an obligation to keep a reasonable "lookout" for other traffic and to use reasonable care. Even where a right-of-way is given by statute, if conditions so require it to avoid injury to others, the right-of-way must be yielded. Bove v. Beckman (1965) 236 Cal.App.2d 555, 563.

It was established that the traffic signals were functioning properly and that the southbound through traffic signal turned green after the northbound left turn arrow cycled to red. It was also established that the left turn arrow maintained a yellow light for 3.2 seconds.

It was also undisputed that although there were no obstructions for either party to see one another and that both vehicles had its headlights on, neither party saw the other in time to avoid the impact between the Tahoe and the VW.

There was one eyewitness who claimed that the VW entered the intersection on a green arrow. There was another eyewitness who claimed that the VW ran a red arrow. There was also an eyewitness who claimed that the left turn arrow had been yellow for an uncertain period of time before the VW entered the intersection.

Gutierrez was not aware that Climer's vehicle was approaching directly in front of him until a "split second before or after" he hit it. Likewise, Climer was unaware of Gutierrez' vehicle until a split second before he was hit.

The plaintiff initially argued that neither driver maintained a reasonable lookout or utilized reasonable care while entering that intersection.

The plaintiffs' initial assessment of all of the available evidence was that Climer approached the intersection on a red light with the expectation that it would turn green as he was getting closer at a high rate of speed and was timing his approach accordingly. At the same time Gutierrez was focused on trying to get into the intersection before a yellow arrow turned to red. Both may have attained their goals but neither was keeping a reasonable lookout for other traffic. Both were likely focused on their respective traffic signals. Climer was 18 years old and Gutierrez was 19 years old, and only obtained his driver's license one month prior to the accident.

However, after hearing the evidence at trial, plaintiffs' argued to the jury that Gutierrez was primarily, if not exclusively, at fault for causing the accident and that the one eyewitness that suggested Gutierrez entered the intersection on a green arrow was not accurate. The other eyewitness accounts and the physical evidence supported the position that Gutierrez likely entered the intersection on a red arrow or the very end of a yellow arrow and did not use his blinker.

DEFENDANTS' CONTENTIONS:
Both defendants claimed that they entered the intersection on a green light. Defendant Guitierrez took the position that he was not at fault for the accident. Defendant Climer took the position that although he bore some responsibility for the accident, he was not the substantial factor in bringing about Smith's death or Galadriel's injuries. Defendants Guitierrez and Pizza Hut contended that the harm caused to the plaintiff was less than what plaintiffs' claimed.

Settlement Discussions

The plaintiffs submitted a C.C.P. section 998 offer to compromise of $1 million for Galadriel Mills, as well as a C.C.P. section 998 of an additional $1 million for Frank Miller. Pizza Hut offered a C.C.P. section 998 of $75,000 for Galadriel Mills and $50,000 for Frank Mills. The plaintiffs made no demand to defendant Climer. Climer offered combined policy limits of $700,000. The offer was withdrawn following the defense verdict.

Result

Plaintiffs' verdict for $7,620,381. The jury apportioned 100 percent liability to defendant Gutierrez and 0 percent (defense) to Climer.

Other Information

FILING DATE: May 21, 2007.

Deliberation

one day

Poll

12-0 (liability), 12-0 (economic damages), 12-0 (non-economic damages for personal injury), 11-1 (non-economic damages for wrongful death)

Length

12 days