Facts

This case involved an incident that took place on April 15, 2020. It occurred at the Southern California Edison work yard located in Lake Isabella. J Squared General Contractors, Inc. ("J Squared") had one of its employees operating a forklift to load a semi flatbed with pieces of heavy metal. In the course of doing so, this employee dropped a 1,500-pound bundle of steel on the truck driver whose truck he was loading. This resulted in the death of Andrew Bough.
Plaintiffs Waylon Bough, Kyndra Bough, and Kolton Bough were ages 11 months old, 3 years old, and 5 years old, respectively, at the time their dad was killed. Plaintiffs brought a wrongful death claim for the loss of their dad. Plaintiffs also brought a survival claim for the decedent's pain and suffering. This was the first pain, suffering, and disfigurement survival claim taken to trial in the state of California under CCP 377.30. Plaintiffs contended their dad lived for more than one and a half hours following the incident as he was pronounced dead at a nearby hospital later that day.

PLAINTIFF'S CONTENTIONS: Plaintiffs contended that J Squared started this job one day before this incident took place. J Squared's employee, Doug Murphy, operated a large terrain forklift that had a telescoping boom. He loaded four trucks on the first day as well as four trucks the following day (the date of incident). While doing so, Murphy dropped loads from his forks, ran into materials on the ground, ignored hand signals and voice commands from the "spotters," and knocked pieces of steel off the trailers he had loaded. And, he lost control of his forklift and slammed into the side of a trailer he was loading, puncturing one of the trailer tires.

J Squared had hired Murphy six months before the date of this incident. During this six-month period, J Squared did not provide Murphy with real training nor supervision in forklift operation. Murphy did not have the requisite forklift operator certification at the time he was hired. None of J Squared's employees had the requisite forklift training certificate until April 13th, the day before this job started (and two days before the date of the incident). And, J Squared did not supervise Murphy during the two days of this job in his operation of their forklift.

Also, the type of material being loaded onto the trailers varied in size and shape. A lot of the materials were metal pieces that were "sizeable material in lengths of 35 feet, bundled to weigh up to 4,000 pounds." These loads called for the forklift operator to be able to center and balance these loads on the forks of this machine. Additionally, the work surface that the forklift had to be driven on consisted of rough sloping terrain and gravel. J Square did not provide their employee with any training on how to safely operate the forklift with these types of loads nor on this type of terrain. Nor did J Square supervise their employee on the operation of the forklift at this job site.

Lastly, the agreement between J Squared and Southern California Edison called for J Squared to provide their forklift operator with a "competent spotter/signaler" to assist its employee in the operation of the forklift. This spotter would be the operator's "eyes and ears." This spotter would help keep him from running into objects on the ground. J Squared chose not to provide this spotter.

The job also required the truck driver to tell the forklift operator where on the trailer bed the operator was to lay the load. This job required the driver to be on the truck. The truck driver also had to be on the trailer to place dunnage between the layers of steel. Dunnage are pieces of four by four inch lumber about eight feet in length and laid eight to ten feet apart perpendicular to the length of the trailer. The purpose of the dunnage was to separate the layers of bundles of steel beams.

Because of J Square's negligent supervision and training as well as the negligence of their forklift operator, 28 year-old Andrew Bough was killed.

DEFENDANT'S CONTENTIONS: Defendants admitted Murphy was operating the forklift within the course and scope of his employment with J Squared at the time of the incident. They claimed that because of this admission, evidence regarding J Squared's negligent training and supervision should be excluded under Diaz v. Carcamo (2011) 51 Cal.4th 1148. After the Judge determined evidence of negligent training and supervision were outside of the Diaz ruling and were admissible, Defendants contended that Murphy was an experienced certified forklift operator with over 40 years of construction experience. Murphy did not need further training or supervision because of his extensive expertise and experience.

Defendants also contended that Murphy instructed the Decedent to remain in the "safe zone," which was clear of steel, while Murphy reversed his forklift to adjust a bundle of steel that was slightly misaligned. As Murphy reversed his forklift, he turned his head over his shoulder, but was able to see Decedent and a piece of steel falling to the ground through his peripheral. Decedent had moved out of the safe zone and towards the middle of the stacked steel despite Murphy clearly communicating that he needed to stay clear of the steel while he adjusted the bundle.

Defendants further contended that the decedent was an experienced truck driver who should have known not to be near the steel. Decedent worked with Murphy the entire day before and should have stopped the work or reported to his employer if he did not feel safe around Murphy. Decedent assumed and invited the risk of injury when he decided to move to the middle of the stacked steel.

Decedent did not die an hour and a half later, but rather he died within minutes of the initial trauma as determined by the Coroner's Autopsy Report. The pain and suffering, if any, endured by the Decedent only lasted a matter of minutes. Lastly, the Decedent's three children were born out of wedlock and had different mothers. This was relevant for the determination of his relationship with his children and the amount of time he spent with them.

Insurer

Traveler's Insurance Co.

Damages

Non-economic damages for Waylon Bough: $3,000,000; Non-economic damages for Kyndra Bough: $3,000,000; Non-economic damages for Kolton Bough: $3,000,000; Pain and suffering of Andrew Bough: $2,000,000;

Injuries

Pain and suffering of decedent.

Result

Plaintiffs' verdict for $11 million at trial. The jury found J Squared General Contractors, Inc. 80% at-fault and Doug Murphy 20% at-fault. The decedent, Andrew Bough, was not found at-fault. Following trial, the parties settled for $12 million.

Deliberation

one day

Length

November 7th through December 1st of 2022