Facts

On April 8, 2012, plaintiff Katherine Whitmire, 21, a collegiate rower and part-time hostess, was riding her Kawasaki Ninja motorcycle along with three other motorcyclist friends on Highway 242 in Concord. Whitmire claimed that as she crossed from the number 2 middle lane to the number 1 fast lane, she encountered a pothole.

Whitmire sued the California Department of Transportation for dangerous condition of public property for the roadway.

PLAINTIFF'S CONTENTIONS:
Whitmire claimed that the pothole and height differential between the lanes, caused her motorcycle to go out of control. Plaintiff claimed that these defects caused her handlebars to rotate from one side of the tank to the other, also called a "tank-slapper." Whitmire was unable to control the motorcycle, which eventually threw her over the handlebars. She rolled several times and slid for some distance. Whitmire eventually came to a stop in the live lanes of traffic, got up and ran across the freeway to the shoulder.

Plaintiff claimed that Caltrans failed to repair and/or maintain the highway and that Caltrans had notice, as its maintenance personnel was supposed to drive the highways on a regular basis to look for defects.

DEFENDANT'S CONTENTIONS:
Defense admitted that the Caltrans maintenance supervisor had previously observed the pothole/differential. However, based on his 25 years of training and experience, he determined that the area did not pose a risk to the traveling public so had not performed any repair work. The supervisor also testified that he had received no complaints from the public or law enforcement.

Injuries

Whitmire claimed she sustained a comminuted and displaced fracture of the left humeral head and neck, as well as a dislocation of her left shoulder. She had surgical repair the next day and was in the hospital a total of four to five days after the accident, where a stabilizing plate and screws were implanted. Whitmire also claimed that the subscapularis muscle to her left shoulder area was torn in the accident. Whitmire returned to the doctor months later for a check-up, complaining that her shoulder muscles would catch on the plate if she rotated her shoulder. The doctor, who performed the surgery, indicated that if she continued to be bothered by the plate/hardware, she could have a surgery to remove the plate. She also claimed frequent pain and that she cannot sleep on her left side. Additionally, she testified that if she has to lift anything above a couple pounds she would experience a sharp jab of pain in her left shoulder. She was treated with physical therapy for a while, which included stretching. She was also left with a scar on the left shoulder. She also claimed that she cannot workout or be as physically active as she was prior to the accident.

Result

Defense verdict.

Other Information

Defendant filed a Memorandum of Costs. EXPERT TESTIMONY: Shakir Shatnawi, opined that based on Caltrans' Maintenance Manual, the roadway defects should have been uncovered and repaired well before the accident. Russell E. Darnell, Ph.D., opined that the differential and pothole were dangerous and posed an obvious tripping hazard for motorcyclists, as motorcyclists would not be able to see them until it was too late. Robet C. Berti, L.A., P.E., conducted a laser scan of the highway to note the dimension of the pothole and differential. Plaintiff's pavement expert then opined that given the dimensions of the pothole and differential shown by the laser scan, Caltrans was required to repair this area because its own Maintenance Manual specifically says so. Kevan Shafizadeh, Ph.D., P.E., testified that there were no accidents involving motorcycles or that were pavement related at the subject location even though it was an extremely high volume roadway. Shafizadeh testified that over 73 million vehicles traveled that stretch of roadway in a little over four years prior to the subject accident and the crash rate per million vehicle miles at the location was only 0.57. Jason C. Fries, performed a three dimensional laser scan and model of the pothole and differential and demonstrated that a motorcycle tire could never come close to getting to the bottom of the pothole because the opening was too narrow to fit a tire. Donald L. Margolis showed through a basic speed/distance calculation that even if we accept plaintiff's in court testimony of riding at 65-70 mph, she would have only been in contact with the pothole/differential for 1/200th of a second and this would have been insufficient time, along with the dimensions of the defects, to transfer enough force to the motorcycle to cause it to go into a "tank slapper"/lose control. FILING DATE: Nov. 5, 2012.

Deliberation

20 minutes

Poll

11-1 (defense)

Length

two weeks