Pedestrian-hit-by-auto results in $1 million verdict against a $10 million demand. Orange County.
Restaurant manager strikes pedestrians at intersection on his way home after work. Course and scope of employment argued.
- Case Name: Jay H. et al. v. John Keith Bullard, Waterfront Enterprises, Inc., dba Newport Landing Restaurant and Oyster Bar, et al.
- Court and Case Number: Orange County Superior Court / 30-2014-00718428-CU-PA-CJC
- Date of Verdict or Judgment: Wednesday, November 01, 2017
- Date Action was Filed: Thursday, April 24, 2014
- Type of Action: Course and scope of employment, Vehicles - vs. Pedestrian
- Judge or Arbitrator(s): Hon. Peter J. Wilson
- Plaintiffs: Jay H., 52, real estate agent.Julene Marie Dawson, 53.
- Defendants: John Keith Bullard (employee driver); and Waterfront Enterprises, Inc. dba Newport Landing Restaurant and Oyster Bar (employer).
- Type of Result: Jury Verdict
- Gross Verdict or Award: $1,013,443.20
- Economic Damages:
- Non-Economic Damages:
- Jury Deliberation Time: 15 days.
- Jury Polls: 9-3.
- Post Trial Motions & Post-Verdict Settlements: None as of 11/07/2017.
- Attorney for the Plaintiff:
Lari-Joni & Bassell, LLP, By Torsten M. Bassell, and Nicole Lari-Joni,Los Angeles.
Schimmel & Parks, by Michael W. Parks, Sherman Oaks.
- Attorney for the Defendant:
Bremer Whyte Brown & O’Meara LLP, by Tyler D. Offenhauser and R. Todd Windisch, Newport Beach. (For John Keith Bullard.)
Veatch Carlson LLP, by Rob Mackey, and Gregory Selarz, Los Angeles. (For defendant Waterfront Enterprises, Inc. dba Newport Landing Restaurant and Oyster Bar.)
- Plaintiff’s Medical Expert(s):
Christopher P. O’Carroll, M.D., neurology, Newport Beach.
William Schobert, M.D., orthopedic surgery, Costa Mesa.
Robert M. Kachenmeister, M.D., plastic surgery, Mission Viejo.
- Defendant's Medical Expert(s):
Michael P. Weinstein, M.D., orthopedic surgery, Newport Beach.
James E. Rosenberg, M.D., neuropsychiatry, Woodland Hills.
Ari Kalechstein, Ph.D., neuropsychology, Los Angeles.
Facts and Background
- Facts and Background:
This incident took place on March 6, 2014 at 7:30 p.m., at the intersection of Pacific Coast Highway (“PCH”) and Thalia St. in Laguna Beach (subject intersection). Defendant John K. Bullard (a restaurant manager for Waterfront Enterprises, Inc., dba Newport Landing Restaurant and Oyster Bar) was driving home from his place of employment after his shift ended that evening.
Defendant driver’s vehicle was in the middle of the subject intersection when the traffic signal cycled to yellow, then red. Defendant driver Bullard says he did not see the plaintiffs step off the curb when he was in the intersection to make his left turn. As the light cycled to yellow, defendant driver waited until the last car traveling in the opposite direction cleared the intersection before proceeding with the left turn. The light then cycled to green for the cross traffic as well as for the pedestrians crossing the street. Bullard proceeded with his left turn and struck the plaintiffs as they were in the crosswalk. Mr. Bullard immediately pulled over and 911 was called to the scene. Both plaintiffs were struck to the ground by defendant driver's truck and taken by ambulance to the hospital. Defendants admitted liability but refuted the nature and extent of plaintiffs’ damages.
Plaintiff Jay H. did not make a claim for lost or future earnings. This matter was bifurcated wherein the First Phase of Trial was to determine the course and scope of employment status of John K. Bullard. The Second Phase of Trial determined the nature and extent of plaintiff’s damages. A jury of 9-3 found after the First Phase of Trial that John K. Bullard was within the course and scope of employment at the time of the accident on his drive home as the result of an exception to the “Going and Coming” Rule, i.e., Required Vehicle Exception. (See CACI 3725.)
As to course and scope, the “Going and Coming” rule states that a driver who negligently (or tortiously) causes a traffic accident during a normal commute from home to the workplace (or vice versa) is not within the scope of employment. Therefore, the employer is not liable to pay for the innocent other driver’s injuries or damages. (See Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301, and Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722.)
When the employer “incidentally benefits” from the employee's commute, that commute may become part of the employee's workday for the purposes of respondeat superior liability. A subset of the “incidental benefit” exception to the "going and coming rule" is called the “vehicle use” or “required vehicle” exception. Under this exception, if an employer “requires an employee to drive to and from the workplace so that the vehicle is available for the employer's business, then the drive to and from work is within the scope of employment” even if the employee's actual use of the vehicle for work-related purposes is infrequent. (See CACI No. 3725; Lobo v. Tamco (2010) 182 Cal.App.4th 297, 301.)
The jury found, based on all of the evidence, that the defendant employer Waterfront required Keith Bullard to have his vehicle available for the employer’s business for work-related errands. The jury relied on CACI 3725 in reaching their decision.
- Plaintiff's Contentions:
Plaintiffs contended that: (1) Defendant John K. Bullard was within the course and scope of employment with Defendant Waterfront Enterprises, Inc., on his drive home from work; (2) Plaintiff Jay H. suffered a traumatic brain injury and multiple fractures as a result of the accident; and, (3) All defendants are responsible for past and future economic and non-economic damages.
- Defendant's Contentions:
Defendants admitted liability. A jury found at the conclusion of Phase I of trial that defendant John K. Bullard was within the course and scope of employment with Waterfront Enterprises, Inc., at the time of the accident.
The defendants in Phase II of trial contended that plaintiff Jay H. did not suffer a traumatic brain injury and rather qualified for a current diagnosis of a mental disorder, unrelated to the accident in this matter, consistent with either an ongoing Stimulant Use Disorder or variant of Bipolar Disorder.
Injuries and Other Damages
- Physical Injuries claimed by Plaintiff:
Traumatic Brain Injury; multi-system trauma, including a complex maxillary sinus fracture; multiple broken facial bones requiring reconstruction of his left eye socket with placement of hardware to form artificial eye socket; broken jaw wired shut; multiple broken ribs; collapsed lung; left knee ACL tear and multiple meniscus tears requiring ACL replacement (from donor) and replacement of 2 menisci; left ankle pain and popping; nerve damage in left and right elbows and wrists each requiring separate surgical procedures to release and repair; ongoing numbness in left leg, both hands and arms and left upper lip (each to varying degrees.).
Post Traumatic Stress Disorder (“PTSD”); significant short-term memory loss, depression, anxiety/emotional disruption; and, numerous additional issues impairing his ability to function, including ongoing pain/discomfort, anti-social behavior, right hand tremors, clumsiness and instability on his feet and inability to cope and keep up with demands.
- Special Damages Claimed - Past Medical: $293,443.20
- Special Damages Claimed - Future Medical: $290,725 (option 1 with no shoulder surgeries) or $325,025 (option 2 with surgery to both shoulders).
Demands and Offers
- Plaintiff §998 Demand: $4,850,000.00 to defendant Waterfront Enterprises, Inc. dba Newport Landing Restaurant and Oyster Bar.
- Plaintiff Demand during Trial: $10,000,000+