Facts

On May 1, 2007, at 10 p.m., a multi-ton boulder, from defendant homeowner Mary Tooker's riprap revetment seawall, crushed plaintiff Wayne Reyes, who was allegedly standing on the sand of the beach. Tooker owned the property located at 925 S. Pacific Street, Oceanside, Calif. 92054.

On May 3, 2007, at 1:19 p.m., in response to the injury to Reyes, the City of Oceanside inspected Tooker's seawall and found it to be a public nuisance.

Tooker's neighbor, Donald Ratkowski owned the property adjacent to 925 S. Pacific Street. During 2006, Ratkowski hired defendant PBA, Ltd. to build a seawall on the Ratkowski property. PBA is a contractor in the business of constructing and maintaining riprap revetment seawalls in the City of Oceanside. During the 2006 Ratkowski construction project, PBA encountered an unexpected, underground boulder wall buried under the footprint of the Ratkowski real property. PBA asked Tooker for permission to place the Ratkowski's buried boulders onto her seawall.

After being granted permission, PBA placed the boulders onto Tooker's seawall and on her property. Prior to placing the boulders onto her seawall, Tooker's seawall had a gap in the wall. Both seawalls were comprised of multi-ton boulders and are adjacent to the public beach.

Reyes alleged causes of action for strict liability, negligence, negligence per se, premises liability, and public nuisance.

After private mediation, Reyes settled with Tooker for $200,000. Reyes also settled with Ratkowski for $20,000.

PBA was the sole remaining defendant in the case. PBA filed a motion for summary judgment seeking dismissal of all causes of action.

PLAINTIFF'S CONTENTIONS:
Reyes alleged that PBA performed work on Tooker's seawall without the necessary permits, proper inspection, or engineering plans, and that PBA negligently placed the additional rocks into an area of Tooker's seawall that had previously acted as a walk-way to the beach and was the exact area in which Reyes sustained his injuries.

Furthermore, Reyes alleged that PBA compromised the structural integrity of the seawall when it added boulders to the structure.

DEFENDANT'S CONTENTIONS:
PBA contended that, after the placement of the rocks was complete, Tooker lived in her home and had the opportunity to observe and inspect the work. PBA completed its work at the Ratkowski residence in July 2006 and did not continue work at either Ratkowski's property or Tooker's property after that time. PBA contended it did not have access to or control over Tooker's property after completing its work and was never asked by Tooker to make changes, maintain, or otherwise repair its work.

PBA offered independent third party witness accounts that Reyes was sitting within the seawall prior to his injury. PBA also offered the testimony of the fireman/paramedic that was primarily in charge of patient care while Reyes was under the boulder on May 1, 2007, who testified that Reyes told him he was climbing on the rocks prior to the boulder dislodging and causing his injuries.

Finally, PBA contended that a duty of could not be established and it could not be found negligent based on allegations that it placed stones on or behind Tooker's seawall a year prior to Reyes's injury. Even if negligence could be proven, PBA contended it was insulated by the "completed and accepted" doctrine, which states that when a contractor's work has been completed and accepted by the owner, the contractor is not thereafter liable to third persons for injury suffered by reason of condition of work, even though he was negligent.

Finally, PBA argued contributory negligence attributed to Reyes's injuries.

Settlement Discussions

Reyes served a C.C.P. section 998 demand of $299,000. Prior to its motion for summary judgment, which sought the disposition of each cause of action aserted, PBA offered $75,000 to fully resolve the matter. Reyes countered with a demand of $150,000.

Specials in Evidence

$250,000 $50,000 $50,000 $300,000

Damages

Reyes sought damages for pain, suffering, inconvenience, impotency, and emotional distress in the amount of $3 million.

Injuries

Reyes suffered a dislocated hip, broken pelvis, arterial injuries, urethra separation, injury to his right leg, right foot, and right ankle, "drop foot," injury to back, nerve damage, and injury to the penis. Reyes claimed impotency and emotional injuries including emotional stress, emotional trauma, depression, anxiety, and fear of death. Reyes contended he was immobilized for months after the accident, did not work for approximately one-year's time, and had corrective surgeries to reattach his urethra and insert metal plates and screws in his pelvis.

Result

The parties settled the matter, on the eve of PBA's motion hearing, for $112,500.

Other Information

MEDIATOR: Hon. Howard B. Wiener, retired, Private Dispute Resolution.