Truck driver is run over by his own rig during altercation over truck making a turn on private business property. $9.3 million. Fresno County.

Summary

Long after city abandons a road often used by big-rigs, business places barriers to trucks and demands payments from truckers using the property to turn around at the end of the road. During a fight with business's general manager, trucker is run over by his co-driver. 

The Case

The Result

  • Gross Verdict or Award: $9,328,323.69
  • Award as to each Defendant:

    Plaintiff prevailed against Hiller Aircraft Corporation, with a finding that Mr. Palm was 45% negligent and that negligence was imputed to Hiller in scope of employment, which the jury found.

    The jury also found that Hiller was 25% at fault for negligence in the management of their premises and in the placement of the cement barricades.

    The jury found that M Street constituted a dangerous condition of public property and allocated 25% of fault to the City of Firebaugh.

  • Contributory/Comparative Negligence: 0% as to plaintiff, 5% to John Cheatham (tractor-trailer driver)
  • Economic Damages:

    $6,328,323.69

  • Non-Economic Damages:

    $3,000,000

  • Trial or Arbitration Time: 3 1/2 weeks
  • Jury Deliberation Time: Approximately 8 hours
  • Jury Polls: Out of 20 questions, the vote was as follows: 16 = 12 - 0; 3 = 11 - 1; 1 = 10 - 2

The Attorneys

  • Attorney for the Plaintiff:

    Miles Sears & Eanni by Richard C. Watters and Lyndsie N. Russell, Fresno.

  • Attorney for the Defendant:

    Ericksen Arbuthnot by David Frankenberger, Fresno. (For Hiller Aircraft Corporation.)

    Overstreet & Associates by Chester Walls, Fresno. (For City of Firebaugh.)

The Experts

  • Plaintiff’s Medical Expert(s):

    Dean Delis, Ph.D.,  neuropsychology, Encinitas.

    Amy Magnusson, M.D., physical medicine and rehabilitation, San Diego.

    Rick Sarkisian, Ph.D., vocational rehabilitation, Fresno.

  • Defendant's Medical Expert(s):

    The defense designated no experts.

  • Plaintiff's Technical Experts:
  • Plaintiff's Technical Expert(s):

    Rene Castaneda, P.E., accident reconstruction, Fresno.

    Robert B. Post, Ph.D., human factors, Granite Bay.

    Dalene Whitlock, traffic engineering, Santa Rosa.

    Marianne Inouye, economics, Pasadena.

  • Defendant's Technical Expert(s):

    The defense designated no experts.

Facts and Background

  • Facts and Background:

    This incident occurred on July 2, 2018. The plaintiff (24 years old) had traveled with his driving partner, John Cheatham, from New Jersey to Firebaugh, California to pick up chilled tomatoes at Red Rooster, a chilling and packing facility located on M Street. This was their first visit to Firebaugh.

    After picking up the tomatoes they proceeded to cross Nees Avenue and there were no signs indicating that the street was a dead end. As plaintiff drove toward the Hiller property, he crossed 11th  Avenue, where the paved curb-and-gutter roadway becomes dirt and gravel and narrows to approximately 50 feet wide. Plaintiff claimed he was lost and awaiting directions from his employer to return to the East Coast and traveled toward the Hiller property because it appeared to him to be a parking area for tractor-trailers. Although M Street was a designated truck route, there were no signs indicating such, and businesses at the intersection of M Street and 12th Avenue had “no truck parking” signs to prevent driveways from being blocked. M Street was commonly used by tractor-trailers, particularly for overnight parking for residents of Firebaugh. There are no posted “Dead End” or “No Outlet” signs on M Street.

    In 1988, the City abandoned portions of M Street and 10th Avenue by resolution of city council, in order to allow for private use of right-of-way that was no longer needed for public roadway. These abandoned portions formed part of the parcel upon which the Hiller property was located. In 2017, Hiller commissioned a survey of the Hiller and nearby parcels for a fence project because the physical property lines in that area had never been established, according to Hiller documents, but the record of survey was never filed until 2019.

    In approximately July 2017, employees of Hiller placed 10 large concrete blocks spaced approximately 56 feet apart, off the edges of the dirt roadway, to reduce dust from traffic, mainly tractor-trailers, in order to protect new manufacturing processes at their facility. According to Hiller’s General Manager, Steve Palm, he had the concrete blocks placed on private property and with the permission of private property owners, never obtaining an encroachment permit from the City because Mr. Palm believed the blocks were not placed within the City's right-of-way. It was later determined that at least 9 of the concrete blocks were placed within the City’s right-of-way. 

    There was no history of any accidents or injuries on M Street or at the Hiller property, although complaints had been raised about the conditions of the pavement, which the City sought grant funding to repair on multiple occasions, but without success. On June 22, 2019, the City initiated a code enforcement investigation into the placement of the concrete blocks, which partially blocked access on 10th Street to a private road adjacent to the Helm Canal. As part of the investigation, Mr. Palm advised the City of his survey and permission from the nearby private property owners, but did not provide the survey until after the subject incident. 

    The City elected to depose John Seasholtz, who has been the owner of the tomato-packing facility, the Red Rooster, since approximately 2004. They subpoenaed and spoke with him before his deposition and at his deposition he testified that he had made complaints regarding the condition of 12th Street to various public works directors since he purchased the business and at the time of the incident. After his deposition, the attorney for the City told Mr. Seasholtz that he had betrayed the interests of Firebaugh in pointing out the deficiencies of the road. This came into evidence.

    When the plaintiff and his co-driver crossed onto “M” Street northbound, he then encountered the cement barricades and they stopped and asked an employee of Hiller if they could turn around, and were told they could. They were in the process of making their U-turn when Mr. Palm, the manager of Hiller Aircraft Corporation, came out and demanded the $50.00 turn-around fee. After much haranguing the plaintiff told his co-driver, Mr. Cheatham, to operate the tractor and to proceed forward. At this point an altercation occurred between plaintiff and Mr. Palm. There was a dispute as to who threw the first blow. During the fight plaintiff was thrown under the moving dual rear trailer wheels, which went over his body. The loaded tractor-trailer weighed approximately 80,000 pounds. 

  • Plaintiff's Contentions:

    That Hiller Aircraft Corporation negligently maintained its property through the placement of 10 cement barricades along M Street, as well as the placement of downed power poles across 10th Street that essentially funneled traffic into the Hiller property where $50 was requested from tractor-trailer drivers.

    Nine of the ten barricades were placed within the City's right-of-way. Additionally, plaintiff contended that Steven Palm was within the course and scope of his employment when he started the physical altercation with plaintiff as the dispute was over the tractor-trailer using Hiller's property.

    As to the City, plaintiff contended that the property was a dangerous condition of public property as the City abandoned M Street in 1988, creating a dead end; no signs were placed warning drivers that the street abruptly ended; the road was a designated truck route for tractor-trailers, and nine of the ten barricades were within the City's right of way. These combined factors created a dangerous condition of public property and a trap for motorists.

  • Defendant's Contentions:

    Hiller Aircraft Corporation disputed that its property was negligently maintained or dangerous from the cement barricades. Additionally, it contended Steven Palm was not within the course and scope of his employment as the physical altercation was personal in nature.

    The City denied that M Street constituted a dangerous condition of public property to users exercising due care, as evidenced by the long history of use of the roadway without incident or injury, and plaintiff’s voluntary decision to enter the Hiller property. The City also denied that any condition of public property was “hidden,” which might constitute a trap to users exercising due care, as evidenced by plaintiff’s testimony that he observed the conditions and the concrete blocks on the side of the dirt roadway and came to a complete stop before voluntarily deciding to go on to the Hiller property. The City also contended that the conduct of plaintiff, Mr. Palm, and/or Mr. Cheatham were the causes of plaintiff’s damages, not any condition of public property. The City also asserted that it was immune for reasonable acts immunity, based on the City’s inability to repave M Street at the requests of nearby property owners, which estimates varied from $500,000 to over $1,000,000 in funding that the City never had, and had to take into consideration planned underground sewer improvements being completed first. The City also denied that a “Dead End” or “No Outlet” sign was not necessary on M Street because the conditions of the roadway were obvious to anyone exercising due care and no vehicle, including tractor-trailers, had ever had an issue before plaintiff’s fight on the Hiller property.

    Additional background

    Instead of stopping or turning at 11th Street, roughly halfway between Red Rooster and Hiller (less than 500 feet in either direction), plaintiff continued northbound toward the Hiller property, ultimately stopping within 25 feet of the fence/gate at the Hiller property, which crossed M Street, clearly delineating an end of the public roadway. Plaintiff admitted that he stopped the tractor-trailer between the concrete blocks and chose not to turn before or between them, allowing Mr. Cheatham to exit the vehicle to seek permission to use the Hiller property to make a U-turn. Plaintiff and Mr. Cheatham both denied seeing stenciling on the concrete blocks stating “Truck Turnaround $50 Cash.” 

    Mr. Cheatham walked in advance of the tractor-trailer and requested permission to enter the Hiller property of a nearby employee, who responded “you’re already in.” It was disputed as to what sequence of events occurred next and by who, but, ultimately, plaintiff made the U-turn on Hiller property and was prevented from leaving by Steve Palm, who may have stood in front of or on the side of the tractor and closed the gate of the Hiller property, trapping the vehicle and demanding payment for the turnaround. Instead of calling for assistance or offering payment on the demand, plaintiff exited the vehicle and engaged Mr. Palm, leading to a physical altercation, wherein plaintiff forcefully opened the gate of the Hiller property to allow the tractor-trailer to be driven out. During this process, the physical altercation escalated to a point where plaintiff was entangled with Mr. Palm near the passenger rear of the trailer, when, at plaintiff’s direction, Mr. Cheatham drove the tractor trailer off the Hiller property, allegedly running plaintiff over in the process. The entire skirmish and injuries occurred on the Hiller property. As the sequence of events unfolded, an employee of Hiller called the Firebaugh police department to report “a trespass” issue as plaintiff was being injured, whereas Mr. Cheatham called 911 after escaping the Hiller property to report that plaintiff had been “jumped by a bunch of white guys.” Plaintiff and Mr. Cheatham are black. Mr. Palm is white.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiff was hospitalized four months at Community Regional Medical Center in Fresno and then for an additional two months at Magee Rehabilitation Center in Philadelphia, Pennsylvania. He was then seen as an out-patient at Magee to the present and continues to have surgeries at Johns Hopkins Hospital in Baltimore, Maryland.

    Plaintiff suffered a moderate traumatic brain injury along with depression and post-traumatic stress disorder. He also suffered a fractured neck and fractured dislocated left shoulder with heterotrophic ossificans with two surgeries; injuries to his left hip; significant injuries to his left knee, which will require a knee replacement and presently produces heterotrophic ossicificans with at least one surgery; a left drop foot; and stressors on the right side. The plaintiff is mobile with a cane/wheelchair and has not worked since the day of the accident and will never work again.

     

    Physical injuries disputed by City:

    Plaintiff has an open claim/action for workers’ compensation benefits in Pennsylvania, which is covering all medical expenses and a portion of lost wages. The handling adjuster was allowed to testify at trial that all past medical expenses had been paid, but he was not aware of any brain injury claim. Plaintiff testified that he reported all of his injuries to his employer as part of the workers’ compensation action, in which he is represented by separate counsel. Plaintiff did not request any future economic damages for future surgeries, only costs for future attendant care.

Additional Notes

Demand to Hiller Aircraft Corporation: $2,500,000. No Demand to City of Firebaugh. No offer by Hiller Aircraft Corporation. No offer by City of Firebaugh.

Hiller was uninsured and is worth approximately $18,000,000 to $30,000,000 as per their manager’s testimony at trial and they are now owned by another United States Corporation.

The City of Firebaugh made it clear via four motions and a writ to the 5th District Court of Appeal, all of which they lost, that they were offering nothing in this case and were going to recover their costs. They had $27,000,000 of insurance coverage through San Joaquin Valley Risk Management & Joint Powers Authority.

Additionally, before trial, plaintiff brought a successful motion for summary adjudication on the City's affirmative defense of design immunity.

Per defense counsel:

The City of Firebaugh is permissively self-insured pursuant to the Government Code, much like most cities in the Central Valley, which is funded exclusively by taxpayer dollars. The City also participates in a self-insured group-risk pool with other public entities, also funded exclusively by taxpayer dollars. Pursuant to Proposition 51, although the verdict allocates 25% of fault to City, plaintiff may choose to seek his entire economic damage award against City. Earlier settlements, including $100,000 between plaintiff and Steve Palm, will offset any economic damage award.

Post-trial motions have not yet been filed and the time to seek an appeal has not yet run, but the City maintains that conduct, not a condition, caused plaintiff’s damages. While the court granted an earlier Motion for Summary Adjudication against City’s affirmative defense of plan or design immunity, plaintiff’s expert civil engineer testified at trial that the 1988 roadway abandonment resolution was reasonable, approved at the discretion of city council prior to the abandonment, and caused plaintiff’s injuries, but the court refused to allow the jury to decide the issue, deeming that the abandonment was not a “plan” or “improvement” encompassed by the immunity.

Disclaimer

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