Facts

Plaintiff Andy Martin, and his cousin got into a verbal altercation with security guards at a bar at the Eastridge Mall in San Jose. After Martin and his cousin left the mall, security contacted 911, claiming that Martin threatened to shoot them and that Martin or his cousin displayed a knife. Martin and his cousin were running down a bicycle path when San Jose Police officer, Alexandre Vieira-Ribeiro drove his vehicle onto the path behind them, striking Martin. Martin sued Vieira-Ribeiro and the city of San Jose. Martin was arrested and taken to a hospital where his injured ankle was placed in a cast. He ultimately underwent surgery on his ankle, and underwent pelvic surgery to treat one of his pelvic fractures.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that Vieira-Ribeiro violated his civil and constitutional rights, including his right to be free from excessive force, and that the city was vicariously liable for Vieira-Ribeiro's actions. He further alleged that Vieira-Ribeiro was negligent in his pursuit and in running him over. Finally, he argued that Vieira-Ribeiro used his vehicle with excessive and deadly force by running over Martin two times, despite Martin being unarmed.

DEFENDANTS' CONTENTIONS: Defendants claimed that Vieira-Ribeiro was concerned that Martin was armed and potentially dangerous and that he tried to pass Martin, after Martin attempted to run laterally, in order to block his escape. He claimed that his vehicle ultimately collided with Martin when he turned the vehicle to block Martin's path. He further asserted that he did not intentionally strike Martin, but that he only wanted to prevent him from escaping and that he felt threatened and feared for his life as he believed martin was armed before the encounter.

Injuries

Plaintiff claimed he sustained three fractures to his pelvis, soft tissue injury and a fracture of the pubic ramus that resulted in pubic nerve damage. He also sustained a tibia fracture of the ankle and contusions on both knees. Plaintiff's counsel contended that there are early indicators of arthritis to Martin's pelvis and that Martin now walks with a cane. Martin also suffered nerve damage that could not be surgically treated and resulted in erectile dysfunction. Martin attempted to use Viagra which was not successful. Also, Martin's urology expert introduced a device that could be surgically implanted and allow for an erection but parts of Martin's penis would need to be removed to allow for the implant. Consequently, Martin would be able to have an erection but would have no sensation. Defendants' counsel contended that Martin's pelvic injuries were inconsistent with the type of crush injuries that would occur if the full weight of the vehicle had run over Martin's body. Defense's retained orthopedic surgeon expert also opined that Martin had recovered and that Martin would not need any future medical care. He stated that Martin was mobile enough and that nothing medically could be further done.

Result

The jury found that Vieira-Ribeiro did not use excessive force against Martin and that the city was not liable for his actions under the Bane Act. The jury, however, did find that Vieira-Ribeiro was negligent in his pursuit of Martin and that the city was liable for Martin's actions. It apportioned 60 percent fault to Vieira-Ribeiro and 40 percent fault to Martin. The jury determined that Martin's damages totaled $6 million but did not award punitive damages against Vieira-Ribeiro. After apportionment, Martin should recover $3.6 million.

Other Information

The case was settled for $3.4 million post-verdict. No post-trial motions were filed.