Facts

This incident occurred on March 14, 2005, while Colleen Barger-Carey, 39, was helping Sharon Shipley to back her Lincoln Navigator out of a partially-blocked driveway in Sunnyvale. The plaintiff was standing behind Shipley's vehicle and guiding Shipley because a delivery truck owned by Intl. Moving Co., which was double-parked on the street, was partially blocking the driveway. Shipley's foot slid off the brake pedal and onto the gas pedal of her SUV, causing the vehicle to suddenly accelerate in reverse. Shipley's vehicle crushed the plaintiff’s forearm against the truck, nearly severing Colleen Barger-Carey's arm during the impact.

In addition to Shipley being responsible for her negligence, defendants Lau Yuen Kwong dba International Moving Co. was responsible for the truck being parked such that it partially blocked the driveway. If defendant Kwong had not left the truck so as to block the driveway, there would have been no need for plaintiff to attempt to direct Shipley in backing out of the driveway.

PLAINTIFF'S CONTENTIONS:
The plaintiff argued the Restatement of Torts Section 428 to place liability on Yamato Transport. Restatement of Torts section 428 provides:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

Defendant Yamato is a global delivery company that contracted with International Moving Co. to assist with deliveries. Yamato's business was regulated by the State of California. The business constituted an activity, which if negligently performed, could lead to serious injury or death. Therefore, as the hirer of the contractor, Yamato Transport was liable for the negligent acts of International Moving Co. that caused injury to Mrs. Barger-Carey.

DEFENDANT'S CONTENTIONS:
Defendant Yamato Transport argued it could not be held responsible since it hired an independent contractor to do the deliveries and was not responsible for International Moving Co.'s negligent acts.

Damages

Loss of past and future medical specials: $4,946,247; Loss of past and future earnings: $971,494; Loss of past and future household services: $519,925. Total special damages: $6,437,666; general damages: $19,313,000; Total Damages: $25,750,666.

Injuries

The plaintiff’s right arm was nearly severed, and she sustained a degloving injury (i.e., her upper extremity was skeletonised by removal of the skin and subcutaneous tissue). As a result of this degloving/crush injury, she sustained open comminuted fractures of her distal radius and ulna. Her median and ulnar nerves were severed, as were her brachioradialis, palmaris longus, and flexor pollicis longs tendons. Both the extensor and flexor surfaces of her forearm were degloved. The plaintiff is right-hand dominant. Despite extensive medical treatment to address her degloving and crush injury, her use of her right arm and hand are severely limited to this day. She has been forced to undergo numerous and painful bone, skin, and muscle grafts to repair her arm. These procedures have caused additional pain at her donor sites where the muscle, skin, and bone was harvested. Nearly two years after the traumatic incident, the plaintiff remains with an essentially non-functioning right hand. She has pain and scarring from donor sites of muscle, skin and bone, and therefore has an uncertain future in terms of continued reconstructive surgery and attempts to regain use of her hand.

Result

Judgment in the amount of $25,750,666. The prior settlement included $750,000 from defendant Lau Yuen Kwong dba International Moving Co.; and $200,000 from defendant Yamato Transport USA Inc. A confidential settlement was reached between the plaintiff and the Shipley defendants prior to the court trial.

Other Information

Percentages of fault were assigned as follows: 90 percent (Estate of Sharon Shipley); five percent (Lau Yuen Kwong dba International Moving Co.); five percent (Yamato Transport). Costs were awarded to plaintiff, in an amount to be determined.