Sacramento Brain Injury Lawyer Blog

INTRODUCTION
Even though he was only in the 9th grade, Plaintiff was the star of his high school soccer team. In the year 2000 he excelled at all athletics and his studies came easily. College was a given as his father was a psychiatrist and his mother a college graduate.

Today, Plaintiff is not going to college. He cannot engage in athletics. He is plagued by brain damage that has produced anger, irritability, memory problems and cognitive deficits. He also suffers chronic, debilitating back pain. He has been unable to keep even the simplest full time job. What happened to Plainitff?

THE COLLISION
On January 6, 2001, Plaintiff was the rear seat passenger in a 2000 Honda Accord driven by Susan Jones. Ms. Jones was driving down Blue Jay Road. She was driving too fast for conditions and ran off the road. Her car smashed into several large trees, crushing the top and injuring both Plaintiff and Ms. Jones. The one-car accident was investigated by the California Highway Patrol, Officers Pedretti and Jong. In their report they state the following:

“Cause: P-1: (Jones) caused this collision by failing to maintain her car on the right half of the roadway, Violation 21650 VC.”

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A ventricular drain with pressure monitor was placed in his brain on January 7, 2001. In addition to the foregoing, Plaintiff was suffering from aspiration and a right-sided pneumothorax. As a result, a chest tube had to be placed into his lung in the Emergency Department.

The operation to place the ventricular drain and pressure monitor in his skull took place on January 7, 2001. To rule out intra-abdominal injury a diagnostic peritoneal lavage was carried out on January 7, 2001, with an incision made below his navel.

Plaintiff was finally discharged on February 18, 2001, having been hospitalized for six weeks. Following his discharge from UC Davis Medical Center, Plaintiff was transferred to Sierra Gates Rehabilitation for initial head injury rehabilitation. On March 1, 2001, he was released to his parents’ custody.

BRAIN DAMAGE
Plaintiff suffered brain damage in the collision. On December 18, 2002, he was assessed by Alan E. Brooker, Ph.D., ABPP-CN, CRC, a clinical neuropsychologist. In his report, Dr. Brooker concludes the following:

“Thus, the pattern of neuropsychological test date reflects most difficulties are clearly delineated by auditory attention and concentration, delayed procedures (e.g., 18-second delay), but more profound difficulties were found with visual immediate memory, visual delayed memory, and auditory recognition delayed memory as measured by the WMS-3rd Edition.

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On 01/06/01, Plaintiff sustained a severe closed-head injury with prolonged loss of consciousness. Intubation in the field was required. A CT scan of the brain revealed multiple punctuate hemorrhages in the right temporal, right occipital, and left temporal frontal areas, all of less than 1 cm in size.

Regarding Plaintiff’s future levels of personal achievement during the remainder of his life, it is probable that he will not achieve the levels of success and achievement he would have absent the brain injury of January 6, 2001.

It is probable that education past the high school level will be more difficult for Plaintiff as a result of his brain damage. As a result, it is likely that Plaintiff will eventually settle for a comparatively reduced post-high school level of educational achievement and training.

It is probable that Plaintiff’s future earning potential during the remainder of his life will be significantly reduced as a result of his cognitive impairments, as compared to his future earning potential absent those impairments. He will not perform as well on the job; he will have reduced abilities. Plaintiff will likely appear apathetic to others, and he will perform less well with co-workers and bosses than he would have absent the brain injury.

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BACK INJURY
For months following the collision Plaintiff has complained of severe back pain. He has been seen by Christopher Molitor, M.D., an orthopedic surgeon recently for these complaints. On April 1, 2003, he diagnosed Plaintiff with chronic back pain.

Because Plaintiff continued to complain of severe back pain, an MRI was performed on May 1, 2003. The MRI showed the following:
1. Compression fracture of T-12.
2. End plate disc herniation at T-11 and T-12.

WAGE LOSS
Plaintiff has been evaluated by Timothy Sells, M.A., Vocation Rehabilitation Counselor regarding her future earning potential. Due to his brain damage and chronic back pain, Mr. Sells concludes that Plaintiff will experience a significant loss of earnings in the future.A.R. Gutowsky, Ph.D. economist, has calculated the present value of Plaintiff’s wage loss. His report concludes the following:
If Plaintiff returns to full-time employment, a present value wage loss of $519,000.
If Plaintiff returns to part-time employment, a present value wage loss of $1,047,000.

It should be noted that Plaintiff has attempted to return to work and has tried six different jobs. He has not been successful in keeping any of these jobs due to both cognitive deficits and chronic back pain.

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TOTAL ECONOMIC DAMAGES
Total economic damages if plaintiff gets full-time employment (present value): $1,105,832.30
Total economic damages if Plaintiff gets part-time employment (present value): $1,633,832.30

LIABILITY OF DEFENDANTS
As mentioned above, the police report concluded that the cause of the accident was defendant, Ms. Jones.

ICE OR FROST NOT A FACTOR
Nine days after the crash, Ms. Jones’ father drafted a letter opining that there may have been “black-ice” on the pavement which was a cause of the accident. Even though this letter was signed by Ms. Jones, she testified in her deposition that she had no such opinion or recollection.

The depositions of both CHP investigating officers were taken in this case. Both officers testified that there was no “black-ice” on the edge of the pavement. There was some frost. Both officers testified that the presence of the frost was not a factor in the collision.

One of the investigative officers was Kinley Jong. Officer Jong testified as follows in his deposition at page 40:26-41:19:
Q. “Sir, if you were filling out this page two, having observed the accident and investigated it, would you have marked under roadway Surface, A, B, C, or D?
A. I would have marked A.

Q. And A is dry?
A. Yes.

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The other investigating officer was Terrill Pedretti. Officer Pedretti testified as follows in his deposition, at page 19:15 - 20:10:
“Q. Officer, you included in your report that there was ice near the area of this accident, correct?
A. Yes, sir.

Q. Did you actually measure that?
A. I believe we did.

Q. Do you know why that was not included on the diagram done by Officer Jong?.
A. No, I don’t.

Q. Is that something that ordinarily should be included as part of a diagram if it is important enough for you to describe in the report?
A. No. I think the description took care of it, because I don’t feel it had anything to do with the crash.

Q. When did you make that determination?
A. When I drove across the ice in my patrol car at the speed limit and didn’t spin out.

Q. How long after the accident did you do that?
A. The very last thing we did from when we left the scene, I said I want to drive across this and see if it is indeed slick, and it was not.

ADMISSIONS BY MS. JONES
It was generally agreed among the three passengers in the car that the accident was caused by Ms. Jones.

In the right front seat passenger was Andy Thompson. He testified as follows at his deposition at page 21:
“Q. Did you ever hear Ms. Jones tell Plaintiff that she is sorry that she caused the accident?
A. Oh, yeah. Yeah. I mean many times, I mean.”

Ms. Jones herself testified as follows in her deposition at page 25:
“Q. Have you and Plaintiff talked about the accident?
A. Yes.

Q. Have you told her you’re sorry that you lost control of the car?
A. Yes.”

Continue reading "Teenager Suffers Brain Injury In Sacramento County Automobile Accident, Part 6 of 8" »

SEAT BELT NOT A FACTOR
At the time of the crash, Plaintiff was not wearing his seat belt. This raises two issues:
1. Who should be charged with negligence, if anybody, concerning this?
2. Had he been wearing a seat belt, would it have made a difference?

Under California law, the driver of a vehicle has the duty to make sure her (minor) passengers are wearing a seat belt.

Ms. Jones testified as follows in her deposition at page 28:2-29:4

“Q. Now, when you would ride in that car and there were three, from time to time on other occasions would the person in the backseat come up so you could all talk?
A. Yes.

Q. Was that something you normally did?
A. Yes. I think more so on back roads. We were on the freeway, we wouldn’t do that. But on back roads, yes.

Q. Because the person way in the back can’t hear what the front two are saying essentially?
A. Correct.

Q. Because the person way in the back can’t hear what the front two are saying essentially?
A. Correct.

Q. Okay. Do you recall that night before the accident whoever was in the backseat was if you were on a back road they would be up near you so they could be in the conversation?
A. I don’t recall specifically.

Q. On other occasions on the back roads would the person in the backseat come up so that there could be a conversation?
A. Yes.

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From the foregoing it is obvious that Ms. Jones knew, or in the exercise of reasonable care, should have known that Plaintiff was not wearing his seat belt. In spite of this, she did not ask Plaintiff to put on his seat belt. At the time of the injury, Plaintiff was a minor. As operator of the vehicle, it was the responsibility of the operator, Ms. Jones, to make sure all minor passengers were seat-belted. Thus, if there is any negligence to be found for the fact that Plaintiff was not wearing his seat belt, it would seem the majority of this negligence would be directed to Ms. Jones as the operator of the vehicle.

The second issue is: had Plaintiff been wearing a seat belt, would it have made a difference? The rear roof of the Honda was crushed down to the seats. Accident Reconstructionist Mr. Barry concludes that the non-use of a seat belt by Plaintiff made no difference in the injuries he suffered in the crash. Thus, there is no causation between lack of use of seat belt and the injuries suffered by Plaintiff.

CONCLUSION REGARDING LIABILITY
The following conclusions can be reached:

1. This is a case of clear liability against defendant Ms. Jones. She caused the crash. The presence of frost or ice on the roadway made no difference. She was simply driving too fast. Ms. Jones admits she caused the crash.

2. If defendants wish to raise the seatbelt defense, they will be faced with two problems. First, it was the primary duty of defendant driver Jones to make sure her passengers were seat-belted. Second, there is no causal connection between lack of a seatbelt and the injuries suffered by Plaintiff. He was going to suffer these injuries regardless, as evidenced by the crushed roof.

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