Facts

On March 17, 2010, at 9:15 a.m., plaintiff Carlos Jimenez, a 40-year-old laborer employed by Granite Construction Company was performing construction work on Highway 1 in Mendocino County between Elk and the junction of Highways 1 and 128.

The accident occurred when Granite Construction was paving one lane of Highway 1 between the steep bank and a deep drop to the Pacific Ocean protected by a guardrail. Because of the narrow width of the road, the paving was being done without a K-rail barrier along the centerline next to the live traffic lane. Trucks brought asphalt to be dumped into the paving machine, then drove to an area to turn around and then drove back past the paving machine to leave to get another load. Because of the distance, it had to be carried from the plant. The asphalt grew too cold, causing "chunks" to form that had to be removed. Plaintiff's job was to remove these chunks from the paving machine, using a shovel on the outside of the paver next to the live traffic lane. The accident happened when Plaintiff had to crouch down to dig out an asphalt chunk and stepped back to remove the chunk just as defendant V. Dolan's empty dump truck was driving past the paver. The truck ran over plaintiff's left foot, crushing it.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed that before he bent down to remove the asphalt chunk from the paver, he checked for traffic and there was none. Before live traffic was released to pass the paver, the workers were supposed to be notified but there was no warning that Defendant was going to drive past the paver.

Plaintiff also claimed that defendant driver was driving alone in the live lane without any other vehicles. Defendant driver was looking out the driver's window at the guardrail that was approximately one foot from his truck and was not looking at the paving machine or the workers. He told the investigation California Highway Patrol officer that he saw a man crouched down along side of the paver with a shovel but he continued to drive slowly while looking away to the guardrail next to his truck. The next thing he knew, people were yelling at him to stop and someone was crying out in pain. At his deposition, the driver admitted that he is required to have eye contact with highway workers before he can safely drive past them. The driver changed his story after the accident and at his deposition to state that he did have eye contact with Plaintiff before he started to drive past the workers. However, that statement was contradicted by what he told the CHP officer.

Plaintiff alleged that the accident was caused by the driver continuing to drive by Plaintiff, who was last seen crouched down with his back to the truck next to the live traffic lane. The Caltrans representatives were also responsible because they controlled the staging of the project, which was unsafe and could have stopped the driver when they saw him approaching the paver when it was unsafe to pass.

DEFENDANT'S CONTENTIONS:
Defendants claimed that plaintiff was at fault because he had his back to approaching traffic and then stepped backward into the live traffic lane in front of the truck without looking for traffic just as the truck passed the paver causing the truck to run over his foot.

The CHP investigating officer stated in his report that the cause of the accident was Plaintiff's unexpected movement into the path of the truck.

Defendants claimed that Granite Construction had set up an unsafe situation for the paving and shared responsibility for the accident.

Defendants alleged the State of California and its employees could not be held liable because they did not exercise retained control that affirmatively caused the accident under the Hooker standard.

Defendants further alleged that the truck driver claimed that he was driving slowly and had eye contact with Plaintiff before he attempted to drive by and was therefore not a cause of the accident.

Settlement Discussions

Plaintiff made a CCP 998 demand of $3 million policy limits to defendant V. Dolan Trucking, Inc. Defendants made no offer until mediation.

Specials in Evidence

$601,347 all paid by workers' compensation $1,213,373 $1,224,975 present value of life care costs

Injuries

Plaintiff suffered a complex crush/mangling injury of his left foot and ankle. Plaintiff underwent five surgeries in an attempt to avoid amputation of his foot. When these attempts failed, he underwent a below-the-knee amputation. Plaintiff had difficulty with the stump and with the prosthesis. He underwent surgery for excision of a neuroma in the stump. He continues to have phantom pain, back pain, and was suffering from depression.

Result

The parties settled for $2,050,000 paid on behalf of defendants V. Dolan Trucking Inc. and Erick MacCallum only.

Other Information

Plaintiff was represented by his workers' compensation case by attorney Timothy J. Egan, and received full future medical treatment with no credits and the lien was settled for $5,000. MEDIATOR: Kenneth D. Gack, JAMS. INSURER: Financial Pacific Insurance Company.