Facts

On Aug. 1, 2003, at approximately 4:15 p.m., a forklift, with its unloaded forks about four feet in the air, was being operated on Gibson Road, south of Valley Boulevard in El Monte, by A & A Building Material Co. employee Donald Smith. An apartment building was being constructed on the east side of Gibson Road. Plaintiff Valerie Santos was driving southbound on Gibson Road at 20 mph on this 25 mph street. After Smith noticed Santos' vehicle approach southbound towards him, he then backed up from the east curb to the west curb between two parked cars with the forks still remaining in the air. As Santos drove by, the forks smashed though the front windshield on the passenger's side and struck her son, 8-year-old Sergio Contreras Jr., on the right side of his head.

Plaintiff Valerie Santos, Sergio's mother, was driving the vehicle, which was struck by the forklift, and plaintiff Sergio Contreras Sr., Sergio's father, was driving a vehicle directly behind his wife's vehicle. They were driving to their storage facility. Santos did not see the forks prior to impact. Both of Sergio's parents contemporaneously observed the incident and the tragic injuries to their son and suffered from severe emotional distress.

Defendant A & A Building Material Co. was hired by a subcontractor, defendant Goodyear Construction Corp. to deliver building materials to the construction site. Texton Construction Co. Inc., the general contractor on the project hired Goodyear.

PLAINTIFFS' CONTENTIONS:
The plaintiffs contended that Santos was driving 20 mph and that the accident was caused by the unloaded forks being four feet in the air on the public street and that the defendants' collective failure to issue any type of warning to the public of the ongoing construction work. Neither Texton, Goodyear nor A & A fulfilled its duty to warn the public of the ongoing construction project or of the operating forklift. They did not use any type of warning nor place any signs, cones, lights, flagmen or any other notice to the public of the possible hazards.

DEFENDANTS' CONTENTIONS:
The defendants contended that plaintiff Santos was driving too fast and was comparatively negligent. However, a witness on the sidewalk, within 15 feet of the accident, testified in her deposition that Santos was driving slow and safe. She also testified that there were no warning signs, cones, flagmen, etc. at the scene on Aug. 1, 2003. She stated that she did see, however, "stop/slow" signs and orange cones on the days before and after the accident.

Injuries

Sergio suffered a depressed skull fracture, right parietal/temporal bone fractures, exposed brain content and other serious injuries necessitating a lobectomy of the right parietal lobe, reattachment of his right ear and numerous other procedures. Sergio was in a coma for about two weeks and has permanent brain damage. He suffered from altered mental status, significant cognitive problems, decreased attention, impulsivity, decreased safety awareness, deficit in short-term memory, difficulty concentrating, mild left-sided visual neglect, headaches, vision difficulties, dizziness, decreased balanced, abnormal coordination, speech difficulties, neurocognitive and neurobehavioral dysfunction, gross motor and fine motor skill deficits and is unable to function without adult supervision. His schoolwork suffered with decreased ability in mathematics, reading, spelling, writing, English and social skills. He has trouble keeping track of or completing his homework assignments. Between Aug. 1, 2003 and Oct. 10, 2003, Sergio Jr. was in the LAC/USC Medical Center and Children's Hospital for the emergency room treatment, numerous surgeries and physical and speech therapies. His bills for these two facilities were approximately $525,000. After Sergio was released from Children's Hospital, several medical experts examined him.

Result

The plaintiffs served C.C.P. Section 998 offers for the collective $4.5 million policy limits. The case settled at the March 3, 2006 mediation, before retired Judge Russell Bostrom for $4,285,000. Hon. R. Bruce Minto approved the Minor's Compromise Petition on July 20, 2006.

Other Information

MEDIATOR: Hon. Russell A. Bostrom, retired, (Judicate West).