Facts

On March 9, 2003, plaintiff Erin McQueen, 8, was on the premises of defendant Our Savior Lutheran Church in Livermore when she was struck in the head by a softball hit by defendant Henry Westphal. Westphal was on the church's softball team, which was coached by defendant Dan Smith. The incident happened on a blacktop area adjacent to where the team was practicing. Erin McQueen sued the church, Westphal, and Smith, through her guardian ad litem and mother, Deborah McQueen. The parties stipulated to the fact that Westphal and Smith were acting in the course and scope of their agency with the church at the time of the incident. The church cross-complained against Deborah McQueen's boyfriend, cross-defendant Dale Wilkins, who had brought Erin McQueen to the field.

PLAINTIFF'S CONTENTIONS:
Erin McQueen claimed premises liability, contending that the church had carelessly set up the practice field so that softballs were hit in the direction of the blacktop, where children were known to play. Plaintiff contended that defendants should have known the danger this posed.

DEFENDANT'S CONTENTIONS:
The church claimed that Wilkins negligently supervised ErinMcQueen. The church also disputed the nature and extent of Erin McQueen's injuries, arguing that she had recovered remarkably well by the time trial occurred.

Settlement Discussions

Erin McQueen demanded $849,999, via CCP 998 The defense offered $250,001, via CCP 998.

Injuries

Erin McQueen claimed a stay in intensive care for five days due to a fractured skull and sustained epidural and subdural hematomas, contusions, capillary damaging in the brain, and loss of brain tissue in her bilateral frontal poles. Plaintiff claimed that this resulted in serious physical and emotional injury as well as brain damage and cognitive impairment. She claimed, based on testing, an adverse impact in her academic and vocational future. Erin McQueen's parents claimed she developed problems with divided attention and a poor memory and suffers fatigue. They claimed her deficits required massive schoolwork assistance. The defense offered the testimony of plaintiff's teachers, who testified that plaintiff was a terrific student who continued to earn high grades.

Result

The jury found for Erin McQueen, as against Smith and the church, but returned a defense verdict for Westphal. The jury also found for Wilkins on the church's cross-claim. She was awarded $216,435, consisting of $36,435 for past medical costs, $30,000 for future medical costs, $100,000 for past pain and suffering, $50,000 for future pain and suffering. The church was ordered to pay 90 percent and Smith the remainder.

Deliberation

1.5 days

Length

13 days