Chad McVay, a minor, by and through his Guardian Ad Litem, Catherine McVay, Johnny McVay, et al. v. Canyon Lake Property Owners Association, et al.
Published: Jan. 22, 2000 | Result Date: Jun. 10, 1999 | Filing Date: Jan. 1, 1900 |Case number: 304688 Bench Decision – $0
Judge
Court
Riverside Superior
Attorneys
Plaintiff
Defendant
Robert T. Dolan
(Gaglione, Dolan & Kaplan)
Experts
Plaintiff
Michael Saito
(medical)
Lester M. Zackler M.D.
(medical)
Harry J. Krueper Jr.
(technical)
Curtis J. Cope
(technical)
Theodore Vavoulis
(technical)
Defendant
Randi L. Firus
(technical)
Weston S. Pringle
(technical)
Roxy Szeftel
(medical)
James R. High
(medical)
Perry R. Lubens M.D.
(medical)
Jeffrey M. Lulow
(medical)
Gregory Mojado
(technical)
Jurg "Bill" Mattman
(technical)
Facts
On Aug. 23, 1997, 12-year-old Chad McVay was crossing a residential street in the private, gate-guarded Canyon Lake Development to access a park in the community. He was struck by a car crossing the street. Chad was a participant in a child's fishing derby at the park attended by over 200 children. The car was traveling at approximately 27 mph on a street with a posted 35 mph speed limit. Chad was struck by the right front corner of the car, hit the windshield, landed on the ground and was unconscious with substantial blood loss. Chad was taken to the hospital and remained in a coma for a number of days and had a substantial course of physical therapy. Johnny McVay, Chad's father, had driven Chad to the park, and watched his son cross the street and get struck by the car. Johnny McVay, at the time of the accident, was a 38-year-old bakery plant manager who shortly after the accident had a series of nervous breakdowns leading to hospitalizations and recommendations for lengthy long term care treatment.
Settlement Discussions
All plaintiffs made a settlement demand of $2,125,000. At trial, Chad reduced his demand from $600,000 to $300,000. Canyon Lake made a C.C.P. Section 998 offer of $100,000 for all plaintiffs, increased to $250,000 at trial. Defendant Wells Fargo made separate C.C.P. Section 998 offers of $5,000 for each plaintiff.
Specials in Evidence
$600,000 (Chad McVay)
Damages
A demand of $1.4 million was submitted on behalf of Johnny McVay who was claiming total disability due to the emotional distress of having watched his son be struck by a car. He had not worked since January 1998. Catherine McVay sought $125,000 for her loss of consortium claim. The plaintiff's economist was prepared to testify that Johnny McVay's total loss of income and future medical care was in excess $2 million. After missing a year of school, Chad McVay rejoined his eight grade class, but was no longer an "A" student due to the traumatic brain injury he suffered. He was also limited in the physical activities he could engage in due to the injuries arising from the accident. Johnny McVay at the time of trial was still unable to return to work and his emotional condition had continued to decline impacting on his physical ability to function.
Other Information
Plaintiffs' expert traffic engineer Harry J. Krueper Jr., testified that there was an obvious need to reduce the speed limit for the children's fishing derby with 200 children coming and going at specific times as well as to post a guard in the street and have cones and signs warning approaching drivers of the event in progress. The need for safety measures was apparent to the association in view of the plaintiffs' expert based on the prior history of the event. The plaintiffs' security consultant Curtis J. Cope, testified that Wells Fargo was negligent in having not recommended that an additional security guard be posted on the street during the event to control pedestrian and vehicular traffic during those times when the largest crowds were entering and exiting the park. The defendants' traffic engineer Weston S. Pringle testified that the residential street in question was no different that any residential street adjoining a park and that there was no need to reduce the speed limit for the derby in question due to the relatively small numbers of cars that would be required to park on the street and the fact that the park sat below the grade of the street allowing a "buffer zone" between the park and the street. The defendants' security consultant Jurg Mattman, testified that Wells Fargo did not need to recommend additional security beyond the one guard in the park in light of the fact that there had been no history of any traffic congestion on the street and that the event historically lasted the entire day with no history of "mass" arrivals and departures. The court determined that the evidence would be presented in various phases and that the first phase would involve the issue of whether or not the defendants were negligent in the planning and organization of the event in light of their knowledge of the prior history of the event. Evidence was taken in regard to the first phase of trial and arguments presented. The court ruled that the 35 mph speed limit at the park during the derby was not a dangerous condition and that neither of the defendants was negligent in the planning of the event and entered judgment in favor of the defendants. The driver and owner of the vehicle that struck Chad had previously settled for the policy limits of $130,000. According to the plaintiff, the court ruled in limine prior to jury waiver that evidence of the association's reduction of speed limits for the following year's derby, and the placement of cones and warnings signs with guards, was inadmissible as to notice of a dangerous condition
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