Confidential
Settlement – $177,831Judge
Court
Sacramento Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
John M. Coleman
(Coleman & Associates Lawyers)
(medical)
David M. McCann
(medical)
Richard Deatherage
(medical)
Kirk Berry
(technical)
Defendant
Thomas C. Christensen
(technical)
Facts
On October 18, 1991, the plaintiff, a 32-year-old student, was the driver of a vehicle which struck the defendant, a 13-year-old pedestrian. The defendant pedestrian darted out against the "don't walk" sign at a busy intersection and the plaintiff was unable to avoid striking him. The defendant pedestrian was left a paraplegic and suffered brain damage as a result of the accident. The plaintiff brought this action against the defendant pedestrian based on a negligence theory of recovery.
Settlement Discussions
The plaintiff made a $300,000 (policy limit) settlement demand. The defendant pedestrian made a settlement offer of $40,000.
Specials in Evidence
$21,431 $14,000 $10,000 $7,400
Injuries
The plaintiff alleged that she sustained post traumatic stress disorder and panic attacks resulting in agoraphobia as a result of the accident.
Other Information
The arbitration award was issued approximately three years and three months after the case was filed. A prior judicial arbitration held on January 6, 1995, before Jim Rushford of Sacramento resulted in an award in favor of the defendant pedestrian. The plaintiff rejected that award. The case went to binding high low ($300,000-$40,000) arbitration by stipulation. The plaintiff's post traumatic stress disorder did not require her to see a psychologist until almost one year after the accident. She received no medical treatment for injuries in the interim period. Over the next three years, the plaintiff's panic attacks became so disabling that she became agoraphobic (unable to leave her house without assistance) for a year and a half. She did not drive at all from March of 1993, until October of 1995. Two different psychologists found her so refractory to treatment that they referred her on without improvement in her condition. Even the defendant pedestrian's independent medical examiner agreed on the diagnosis. The arbitrator ruled that only if there was a physical injury, would all "parasitic" emotional distress injuries be recoverable. If there were no physical injury, the (Bro v. Glaser) requirement of outrageous behavior applied and could not as a matter of law be met by the defendant pedestrian's conduct. Consequently, the linchpin finding was whether the plaintiff hit her head on the steering wheel and suffered "physical injuries" in the accident. The plaintiff had admitted at her deposition that no bruising had taken place. The plaintiff contended that the impact was slight but adequate to support the emotional distress damages. The defendant pedestrian contended that no injury took place and, even if it did, no emotional distress damages were related to it. The arbitrator found that impact took place based on testimony by the experts and the plaintiff. The arbitrator also ruled that damages based solely on guilt over the injuries to the defendant pedestrian were not recoverable. The treating psychologists presumed the plaintiff's psychological symptoms were related to the shock of seeing the defendant pedestrian injured in the accident and guilt related to causing the defendant pedestrian's injuries. In July of 1995, however, the plaintiff had a dramatic breakthrough when a repressed memory surfaced which tied her basic post traumatic stress disorder fear to fear for her own safety in the accident. Based on those new facts, the arbitrator ruled that the plaintiff's post traumatic stress disorder was not caused solely by her reaction to the boy's injuries and, because it had a hybrid cause, the arbitrator ruled that she could recover for the psychological injury.
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