Facts

On Jan. 1, 2006, at approximately 3:30 p.m., Jacine and Maxfield Hewitt's mother, Jacine Sarmiento, was driving on State Route 1 near Struve Road in Monterey County with her daughter, Athena Rose Sarmiento, as passenger. A tree fell onto the roadway, killing Jacine Sarmiento and injuring Athena Rose Sarmiento.

The roadway was in a known dangerous condition. Poor soil conditions and poor health of the trees had caused trees to fall onto the roadway previously. The defendant allegedly knew of the hazard but had not fixed it.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that the Monterey cypress trees in the area where the incident occurred were a known dangerous condition. The eucalyptus trees were of poor health and had fallen previously. The plaintiffs claimed that while removing a eucalyptus tree that had fallen nearby, the foreman of the maintenance division for the Monterey District Department of Transportation did a cursory inspection of the trees remaining, including that Monterey Cypress involved in this incident and found that they were fine. According to defense counsel, this was about one year prior to the date of the subject accident.

The plaintiffs' experts testified that had a proper inspection been performed at that time which was within two years of the accident, he would have discovered the dangerous condition and the tree could have been removed before it fell onto the Sarmiento vehicle killing Jacine Sarmiento and injuring Athena Rose Sarmiento.

DEFENDANT'S CONTENTIONS:
The defendant contended it would have been impossible to inspect the more than 10,000 trees in Monterey County on SR 1. It would be too expensive and they also would have a difficult time removing trees because of the environmentalists. The defendant contended that this was an unusually severe storm with high winds coming from an unanticipated direction.

The defendant's expert testified that they found nothing significantly wrong with the tree and would not have ordered it to be taken down.

Testimony provided to the jury indicated there were some three million plus trees within state right of ways alongside of state roadways. It would be physically and fiscally impossible to inspect each tree annually as plaintiff's expert suggested. Testimony also revealed that plaintiffs' own expert, Mr. Batchelder, had never performed such an inspection on so many trees and that he could find no other state highway departments that conducted such inspections. Testimony also provided to the jury that some 75 million cars had passed through this section of State Route 1 in the five years preceding the subject accident.

Settlement Discussions

MEDIATION: Jack Williams held mediation on May 30, 2007. According to plaintiffs' counsel, plaintiffs Janice and Maxfield Hewitt demanded $900,000 each. Plaintiff Athena Rose Sarmiento demanded $9 million. The final demand was a joint sum of $1.5 million for all three plaintiffs. The allocation between the plaintiffs was 70 percent for Athena Rose Sarmiento and 15 percent each for Janice and Maxfield Hewitt. The maximum offer was $200,000 for a total package. According to defense counsel, the final offer to the State was $3.5 million, and there was never any offer below $3.5 million. SETTLEMENT CONFERENCE: The settlement conference was heard June 1, 2007. Plaintiffs Janice and Maxfield Hewitt demanded $900,000 each. Plaintiff Athena Rose Sarmiento demanded $9 million. The plaintiffs made a joint demand of $3 million. The total offer was $200,000. The plaintiffs indicated a willingness to come down from the $3 million figure, closer to $1.5 million. Defendant did not offer more than $200,000.

Damages

Plaintiff Athena Rose Sarmiento claimed $905,000 in economic loss damages from the age of six through 22 since she was living with her mother and would have been supported by her mother. Plaintiff Jacine Hewitt, 17, and Maxfield Hewitt, 15, were living with their father in Altoona, Pa. and would visit their mother during the summer. They alleged that they were deprived of their real mother with whom they had a close relationship by telephone and by summer vacations.

Result

Verdict for $2,983,692. Athena Rose Sarmiento: $1,932,004 ($932,004 economic; $1 million non-economic). Jacine Hewitt: $525,844 ($25,844 economic; $500,000 non-economic). Maxfield Hewitt: $525,844 ($25,844 economic; $500,000 non-economic).

Other Information

MEDIATOR: Jack Williams, Williams & Williams, San Jose. FILING DATE: Sept. 21, 2006. COMPARATIVE LIABILITY: 100 percent state of California.