Facts

On Aug. 7, 2007, Braulio "Brian" Flores, age 4, was playing with his seven siblings at a relative's home in Fresno. The home was located on Ashlan Avenue. Plaintiff Kathleen Flores was in the backyard of the home with the other adults and believed that her son, Brian, was inside watching television with the other children. In fact, Brian was outside in the front of the house with his five-year-old sister despite being warned not to play in the front yard near the street.

Defendant Frank Bussey was in his van following his friend's vehicle and traveling 40 mph in a 45 mph zone. Bussey was approximately 100 feet behind his friend's vehicle when he heard a scream to the left side of his vehicle. When Bussey turned to look, he saw Brian's terrified sister just before striking Brian who was in the road in front of him. Brian was killed immediately.

Plaintiffs Alberto and Kathleen Flores, Brian's parents, filed suit for motor vehicle negligence and wrongful death. Bussey's insurer was State Farm Mutual Automobile Insurance Company.

PLAINTIFFS' CONTENTIONS:
The plaintiffs argued that Bussey should have seen Brian in the road as the point of impact occurred in an area where there was no foliage to obstruct Bussey's view.

DEFENDANT'S CONTENTIONS:
Bussey countered that the point of impact occurred where there was foliage from which Brian darted out into the road. The foliage obstructed Bussey's view and hid Brian, a small child. Bussey argued that if Brian had been clearly visible, his friend would have observed him as well since she was only 100 feet ahead of him.

Settlement Discussions

The Flores made a C.C.P. section 998 offer of settlement in the amount of $600,000 which was countered by Bussey's C.C.P. 998 offer of $50,000. $300,000 was offered at mediation.

Damages

The plaintiffs sought economic damages in the amount of $4,126 for funeral expenses and $4,300,000 for non-economic damages.

Injuries

The plaintiffs suffered the wrongful death of Brian.

Result

The jury found for the Flores in the amount of $4,126, which was reduced by 50 percent for Kathleen Flores' comparative fault. No award was made for non-economic damages.

Other Information

Plaintiff filed motion for new trial. Motion is pending.

Deliberation

3.5 hours

Poll

12-0 (liability), 10-2 (damages)

Length

three weeks