Facts

On Aug. 27, 2012, plaintiff Paige Horton, 20, and her mother, Pamela LeBlanc, 43, were exiting the front entrance of Casa de Oro Dry Cleaners when a vehicle driven by defendant Allison Mulligan ran over LeBlanc. Mulligan was pulling forward in a vehicle drive-through entrance by patrons of Casa De Oro when Mulligan hit the gas instead of the brakes just as LeBlanc had just stepped onto the pedestrian sidewalk. Mulligan's vehicle traveled up the sidewalk, out of control, and proceeded to run over LeBlanc and causing damage to the front portion of the Casa De Oro building.

A nearby automobile mechanic assisted by jacking up the vehicle and releasing LeBlanc from under the vehicle.

Paige Horton was next to her mother at the time of the impact, but was pushed back into the building by the impact.

Plaintiffs Paige and Haley Horton filed suit against Mulligan, Casa De Oro, and Byoung Moon, the business operator and Gilbert Ray, the property owner.

Paige Horton had a cause of action for negligent infliction of emotional distress as a Dillon v. Legg witness to the mayhem.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that the claims against Casa De Oro, Byoung Moon, and Gilbert Ray were based on the unsafe and dangerous condition of the narrow pedestrian sidewalk within a close proximity to the front door of the dry cleaners that was also used for a vehicle drop-off and pick-up.

Plaintiffs also contended there was evidence of prior actual and constructive notice of the unsafe and dangerous condition because the support poles for the drive-through overhand showed prior damage indicating prior incidents of vehicle collisions to the building. There was also evidence of prior tire marks on the curb up to the sidewalk, suggesting that numerous tires had struck the curb trying to thread the needle of the narrow drive-through lane.

Plaintiffs claimed that it was foreseeable that an inexperienced driver like Mulligan would accelerate up the small incline from the street and steer the vehicle into the curb and sidewalk to avoid hitting the support poles. This dangerous design created a significant risk of harm to pedestrians exiting the building.

Plaintiffs also claimed that defendants failed to warn the drivers and pedestrians of any dangers by failing to post warning signs, and construct protective sidewalk railings or barriers. Defendants also negligently caused or allowed the visibility of the customers exiting the building to be blocked by business signs placed on the glass door and windows.

Plaintiffs claimed an investigation revealed hidden videotape demonstrating the pathway of the Mulligan vehicle and moment of impact to LeBlanc. At that instant, she was exiting the dry cleaners as Mulligan hit the gas, losing control of the vehicle. The videotape revealed that a pedestrian walking out on to the sidewalk, like LeBlanc was, had no time to get out of the way, and was trapped in a dangerous condition with no chance of avoiding the accident.

Plaintiffs filed claims for wrongful death, negligence, and survivor action against Mulligan; negligence and premises liability against Casa De Oro; and for unsafe and dangerous design and conditions caused by a narrow drive-through lane and sidewalk that was too close in proximity to the entrance into the building against Byoung Moon, the business operator and Gilbert Ray, the property owner.

DEFENDANT'S CONTENTIONS:
Mulligan admitted fault and claimed that she accidentally stepped on the gas instead of the brakes.

Casa De Oro, Byoung Moon and Gilbert Ray claimed that because the building had been there for over 30 years and there had been no prior collisions on the property, the property was safe and that none of defendants had any notice of a dangerous condition. They further claimed that Mulligan was the sole cause of the collision because Mulligan admitted to her negligent conduct. They claimed that there was no comparative negligence. They alleged that because LeBlanc had an unrelated fall and traumatic brain injury approximately four months prior to the incident, and was disabled from working, that she was comparatively negligent for not being aware of the oncoming vehicles in the drive-through, and that her damages for lost of future income and financial support could not be proven as it was speculative as to whether she could have returned to work prior the incident.

Settlement Discussions

Plaintiffs demanded $3 million. Prior to litigation, Mulligan's carrier tendered its policy limits for $30,000 as she was only insured with Viking insurance for 15/30. Paige's separate physical injuries and emotional distress opened the second layer of the policy. The other defendants made no offers prior to mediation.

Specials in Evidence

$2,075 (Paige)

Injuries

LeBlanc died from multiple traumatic injuries and blunt force to her body shortly after the accident. Paige Horton suffered emotional distress and physical injury to her hand. LeBlanc's other daughter, Haley, was not present at the time of accident. Plaintiffs were orphaned as a result for the loss of their mother because their father was already deceased. Plaintiffs claimed a loss of consortium, comfort and love of a very close emotional relationship with their mother. They also claimed a loss of future financial support that was disputed because of their mother's disability related to a prior head injury from a fall.

Result

The case settled for $1,490,000 as follows: $30,000 from Mulligan; $1 million policy limits from Byoung Moon and Casa De Oro; and $450,000 from Gilbert Ray. There was $10,000 additional medical payments paid by Hanover and Farmers combined.

Other Information

EXPERT TESTIMONY: Traffic engineer expert, Ed Ruzak opined that the entrance to the drive-through was an unsafe and dangerous design and condition that exposed unreasonable risk of harm to pedestrians exiting the dry cleaners. INSURER: Viking Insurance for Mulligan; Hanover Insurance for Casa De Oro and Byoung Moon; Farmers Insurance for Gilbert Ray. MEDIATOR: Thomas Sharkey of Judicate West in San Diego. FILING DATE: Feb. 20, 2013.