Diane Truax; Anne Marie Truax v. Chimineas, Ltd.; Steve Beck; State of California
Published: Jan. 24, 1998 | Result Date: Nov. 20, 1997 | Filing Date: Jan. 1, 1900 |Case number: CV079529 Verdict – $0
Judge
Court
San Luis Obispo Superior
Attorneys
Plaintiff
Don A. Ernst
(Ernst Law Group APC)
Defendant
Joel A. Davis
(Office of the Attorney General)
Experts
Plaintiff
Robert W. Johnson CPA
(technical)
John Stechman
(technical)
Defendant
Robert F. Kovach
(technical)
Michael L. Challgren
(The Challgren Law Firm)
(technical)
George M. Brinton
(technical)
Thomas C. Edwards
(technical)
Facts
On Aug. 31, 1995, at approximately 8:30 p.m., decedent John Truax, a 44-year-old bank vice-president, was killed and his wife, Anne Marie Truax, was injured in an accident on State Route 166 on the bridge over the Cuyama River, west of Cottonwood Canyon Road. This is a remote rural area of San Luis Obispo County dominated by cattle ranching. The accident occurred when a westbound Isuzu Trooper sports utility vehicle driven by Anton Kerckhoff struck a cow on the road, causing the cow to become airborne and strike plaintiff's eastbound BMW. Kerckhoff recalled seeing only a "big brown spot in the windshield" immediately before the impact. (Kerckhoff settled before trial for his $100,000 policy limit and a good faith order was entered). Kerckhoff admittedly was driving 60 to 65 mph at the time. The highway in question is governed by a 55 mph posted limit. The location is unlit and it was dark at the time of the accident. After being hit by Kerckhoff's vehicle, the 1200 pound airborne cow crashed through the windshield and tore off the roof of plaintiff's vehicle, fatally injuring the decedent, who died at the scene. Plaintiff wife Anne Marie Truax was rendered unconscious and had absolutely no memory of the accident or other events before waking up in the hospital. Plaintiff wife settled her own personal injury claim for $25,000 against defendant Chimineas and Beck before trial and voluntarily dismissed the personal injury claim against the State. Only the wrongful death claim went to the jury. Plaintiff Dianne Truax is the decedent's adult daughter from a prior marriage, who was not present at the time of accident. The cow was admittedly owned by defendant Steve Beck, who was leasing the property from defendant Chimineas Ltd. for a cow and calf operation. After the rest of Beck's cattle was moved westward about one month before the accident, the cow in question had been left with its calf about 30 days earlier in an area known as the "east field" about two miles from the Cuyama River bridge. The fencing around the ranch, including the fences along Highway 166 and the Cuyama River was alleged to be old and below the legal standard height of 48 inches. (Beck testified that the fence was 48 inches but was impeached with a photo taken by his insurance adjuster showing Beck holding a tape measure to the fence, indicating a height of 44 inches.) Expert witness testimony of both plaintiffs' and the State's cattle experts established at least three possible escape points for the cow in question, which was probably seeking water or attempting to rejoin the herd and/or find its calf. Beck and Chimineas Ltd., cross-complained against the State, which in turn cross-complained against Beck and Chimineas. The plaintiffs brought their claim against the State of California based upon governmental premises liability (Government Code º830-835.4), on a theory that the State had actual or constructive notice of the alleged dangerous condition, but told the jury the State did nothing wrong and invited a defense verdict as to the state.
Settlement Discussions
The plaintiffs made a settlement demand for $1 million policy limit as to defendants Chimineas and Beck and $100,000 as to the State which was withdrawn before trial. Defendants Chimineas and Beck offered a structured settlement and cash worth approximately $300,000.
Damages
Lost support and household services totaling $850,000, reduced to present value. Plaintiff asked for $860,000 economic damages and at least an equal amount in non-economic damages as to Anne Marie Truax. No specific amount was requested for Dianne Truax, but plaintiffs suggested an award of 40-50 percent of amount awarded to Anne Marie Truax. Attorney for Chimineas and Beck requested a defense verdict, based on no negligence and no causation. Attorney for the State requested a defense verdict based on no notice or alternatively on affirmative defense that reasonable action was taken to protect against the loose cow.
Other Information
The verdict was reached approximately one year and three months after the case was filed. A settlement conference was held on Oct. 23, 1997, before Paul Fritz of Creative Dispute Resolution resulting in no settlement. In a special verdict, the jury found that cow created a dangerous condition on the highway which caused the accident, but that the State did not have actual or constructive notice a sufficient time prior to the accident to take corrective measures.
Deliberation
1½ days
Poll
12-0 (as to liability of Chimineas, Beck and State), 12-0 (as to lack of negligence by deceased), 11-1 (as to lack of negligence by Kerckhoff), 10-2 (as to damages)
Length
11 days
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