Facts

Plaintiffs Michelle and David Hartwig were walking with their two sons near a construction site where developer D.R. Horton (dba Western Pacific Housing), was building a condominium high-rise. D.R. Horton had contracted with Liberty 1 Security Co. to guard the construction site at night. Alan Adams, a Liberty employee, had opened the gate on the 100-foot fence along the perimeter of the site in order to park his car when he attempted to close the gate, the fence began to wobble as he struggled to drag the gate closed. The entire fence collapsed, striking Michelle and her younger son. The Hartwigs sued D.R. Horton, Liberty 1, Adams, and American Fence, the makers of the fence that fell.

PLAINTIFF'S CONTENTIONS:
The plaintiffs claimed that D.R. Horton had negligently erected and maintained the fence, and that Liberty and Adams were negligent in their security services. They further contended that American was liable for the negligent manner in which the fence could be, and was, set up at the construction site. The plaintiffs said the fence was on a T-stand, a stand shaped like an upside-down T, which held the fence posts. However, the T-stand at the construction site was resting on a sloping street, and thus, the plaintiff argued, was not adequately anchored. The plaintiffs also claimed that David and the elder son suffered emotional distress as a result of seeing Michelle and the younger son injured by the falling fence. They denied seeing any signs or barriers the evening of the incident to warn pedestrians that the pathway was unsafe.

DEFENDANT'S CONTENTIONS:
D.R. Horton denied any negligence on its part in the erection or maintenance of the fence. It claimed that the plaintiffs were comparatively negligent for ignoring warning signs and barriers that gave them notice that the area was unsafe for pedestrians. Liberty and Adams also denied negligence, and claimed that Adams had handled the gate properly. It suggested that the fence was either a defective product or negligently erected or maintained. American denied the fence had a defect, and argued that the fence was either negligently erected and maintained or negligently handled. All defendants disputed the nature and extent of Michelle's injuries, pointing out that she was able to stand on her feet for prolonged periods of time as a teacher, and that she returned to her job when the school year started, about a month after the accident.

Specials in Evidence

Michelle sought $36,000 and the younger son sought $2,000.

Damages

The plaintiffs sought recovery for David and the elder son's emotional distress, and for Michelle and the younger son's pain and suffering.

Injuries

The falling fence struck Michelle and her youngest son. Michelle was pinned by the fence, and sustained a fractured ankle. She underwent open reduction internal fixation surgery and 12 weeks of physical therapy. Her younger son sustained superficial contusions on his head, requiring stitches. David and the elder son witnessed the accident.

Result

The parties settled for $800,000. D.R. Horton paid $435,000, Liberty and Adams paid $300,000, and American paid $75,000. $50,000 was set aside to purchase guaranteed structured annuity payments for the two children, in the amount of $25,000 each.