Facts

On Nov. 26, 2007, Karen Jen, decedent, was jogging in a north Fresno residential area, near Woodward Park. Defendant Craig Howard, a Fresno Police Department officer, had just finished his 10-hour shift, at 7 a.m., and was reportedly driving a pickup southbound on Cole Avenue. While he was driving, Howard was also using his cell phone.

According to his cell phone records, at 7:08 a.m., Howard called the property room at the police station. At 7:09 a.m., he called his voice mail. To call voice mail he would have to input four digits on the phone to get his extension and then more digits as a password. At 7:09 a.m., Howard also called 911, which according to him occurred after he realized he had run over a person and after he ran back to check on the victim's condition. A neighbor's security video system was able to record the incident. The video showed Howard's vehicle rolling through the stop sign, at the intersection of Cole Avenue and Audubon Drive, and into the crosswalk in which Jen was jogging and rolling over her.

According to the first investigating officer, Howard stated that he stopped and looked and proceeded and had no idea where the person had come from. Reportedly, he said he was not using his cell phone at the time. Later, Howard stated that he was "almost sure" he stopped at the stop sign. Howard testified in his deposition that he was not using his cell phone. It was not discovered that Howard was using his cell phone until his cell phone bill was produced after his first deposition. When questioned about the bill, Howard stated that he had no recollection of using his cell phone at the time and could not explain the call to the property room.

In March 2008, Howard pleaded no contest to misdemeanor manslaughter and two infractions of failure to stop at a stop sign and failing to yield to a pedestrian, and sentenced to two years probation and 100 hours of community service.
The criminal case contained no investigation regarding his use of his cell phone or whether he was guilty of gross negligence, which would have been a felony. Howard remains a patrol officer giving citations to motorists.

Jen's son, 27, daughter, 29, and mother, 85 sued the defendant Fresno Police Department and Howard for motor vehicle negligence and wrongful death. Howard admitted responsibility for causing the accident due to his inattention.

The court ruled on a motion for summary judgment that there was adequate evidence to submit the matter to a jury.

PLAINTIFFS' CONTENTIONS:
Jen's family contended that Howard was in the course and scope of his employment, as he was making calls to the police department that he should have made from the police substation before heading home. Jen's family presented evidence at the trial establishing that officers commonly used their personal cell phones on the job for which they are not compensated.

DEFENDANTS' CONTENTIONS:
The police department contended that Howard was not in the scope of employment at the time of the accident, because he was off-duty, he was using his personal cell phone and vehicle, and he was not paid for the call. The defendants contended that Howard was not in the course and scope of his employment because he was off-duty, using his personal cell phone and vehicle and was not paid for the call. Evidence at the trial established that officers commonly used their personal cell phones on the job for which they are not compensated.

Damages

Jen's family claimed $22,000 in medical care, $5,000 in funeral costs, and damages for loss of care, comfort and society.

Injuries

Jen died at the scene.

Result

The jury found Howard was not working for the police department during the time of the accident and was not acting within the scope of his employment when making the cell phone calls, and cleared the police department of liability, finding Howard 100 percent at fault. The jury awarded plaintiffs $452,680. Howard's insurance covered $50,000 of the award. Additionally, Jen's under-insured motorist insurance covered $100,000, with credits. Howard was left with a net pending judgment of $352,000.

Deliberation

two days

Poll

9-3 (liability), 12-0 (damages)

Length

12 days