Facts

The California Department of Transportation (Caltrans) had hired Gordon Ball as a general contractor to repair a pedestrian tunnel. A roadside construction site was established on a bluff overlooking the ocean in Daly City on the western side of Route 35, which was a very windy area frequented by hang-gliders.

One clear, dry, windy day, plaintiff Anthony Badger was riding his bicycle along Route 35 southbound, in a designated bike route. As plaintiff rounded a curve, heading downhill, he saw cement K-rails completely blocking the bike route ahead. He was forced to divert to his left, into a traffic lane that had a posted speed limit of 50 mph. There were no signs warning bicyclists of the bike route closure, nor to warn drivers of the presence of bicyclists. There were no signs to warn of the construction either, as the site drawings indicated there should have been. As plaintiff reached the last K-rail, a poorly secured section of orange plastic mesh fence suddenly blew off of the top of the K-rail and hooked the right handlebar of plaintiff's bike. Plaintiff's bike came to an abrupt halt, and plaintiff was dragged down and to his right. He slammed into the pavement and bounced. Plaintiff thought he would be run over and killed, but managed to crawl to safety.

The plastic fencing was sagging and collapsing prior to the accident. However, instead of replacing it, Ball added more, and had just placed the section on top of the last K-rail the day before the accident.

Within hours of the accident, Caltrans ordered the orange fencing removed, and the next day, the K-rails were moved to give bicyclists access to part of the bike route. No other accidents occurred. Plaintiff filed suit against the state of California and its contractor, Gordon Ball.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that the defendants had endangered his life by negligently creating and maintaining the temporary traffic control zone. He argued that defendants were negligent by blocking the entire bike route when only a partial closure was necessary, failing to provide warning of the lane closure, failing to post flaggers to guide bicyclists past the construction site, and for only loosely securing the flimsy plastic fencing in a windy area. Plaintiff alleged that he had permanent physical and psychological limitations on his numerous, customary sports activities. He never resumed road bicycling because he feared being struck and killed by a car. He made a partial return to mountain biking, proceeding with greater caution and slower speeds on easier trails. He did not sail for nine months due to balance problems, hip pain, and fear of breaking his hip again. He never resumed sailing in long trips across rough water or jogging the fire trails near his home.

Plaintiff's experts testified that he suffered from reduced mobility due to scar tissue on the right lateral quadriceps, atrophy and weakness of the right gluteal and quad muscles, and reduced neuro-muscular coordination. Ongoing soreness, pain and tightness were noted in plaintiff's hip and thigh, which were aggravated by plaintiff's attempts at sports. Despite the healing of the fracture, his physical therapist opined that plaintiff was objectively limited by these problems. Plaintiff's clinical psychologist suggested that plaintiff had developed post-traumatic stress disorder, marked by heightened anxiety and a personality change. Plaintiff's forensic psychologist opined that plaintiff was a narcissistic person who maintained a high self-esteem by years of superior athletic performance and found his decline in performance capability humiliating, degrading, and painful. He placed plaintiff's global functioning ability at 60-70.

DEFENDANTS' CONTENTIONS:
Defendants did not contest liability, but their medical experts opined that plaintiff had healed well and was able to resume his normal activities. Defendants' psychiatrist acknowledged that plaintiff had sustained a concussion and acute post-traumatic stress disorder, but asserted that the concussion had left no cognitive symptoms and the post-traumatic stress disorder had resolved itself in three months. He placed plaintiff's global functioning level at 85.

Specials in Evidence

Plaintiff sought $28,940 in medical costs and $2,025 in psychotherapy costs.

Injuries

Plaintiff suffered a brief concussion, and sustained a non-displaced inter-trochanteric fracture of his right hip. A metal plate and screws were installed in plaintiff's hip the day of the accident, and removed nearly two years later. Plaintiff also claimed post-traumatic stress disorder due to his belief that his death was imminent at the time of the accident.

Result

The parties settled for $325,000 during a JAMS mediation session with Jerry Spolter.