Kelly Dodge v Jorge Zuniga, Casper Concrete Cutting, Inc;
FCC Construction, Inc; and Triarc

Plaintiff was walking her dog near a construction site where improperly placed yellow tape and traffic cones directed her off the sidewalk and into the street where she was hit by a car driven by a drunk driver. She was injured and her dog was killed. Jury verdict for $261,318.00.

Plaintiff's Medical Expert Witnesses:
William Bowman, MD, Orthopedic Surgeon
Calvin Colarusso, MD, Psychiatrist
David Bowman, DDS
Merel Olesen, MD, Plastic Surgery

Defendant Insurance: Zuniga-uninsured FCC, Triarc and Casper insured by Liberty Mutual

Date, Time and Place of Incident(s):
November 26, 1996 at approximately 10:00 am at 2400 San Diego Avenue, San Diego

Facts and Background:  
Plaintiff was walking her dog home after going to a coffee shop in Old Town. As she came out of the coffee shop she noticed the sidewalk had been completely blocked off to pedestrian traffic by yellow caution tape and cones At the time, construction workers were working on the remodeling of the shops at 2400 San Diego Avenue. The property is owned by Triarc FCC was the general contractor for the remodeling project, and Casper was a subcontractor. In addition to the yellow tape, there were cones placed along the side of construction trucks parallel-parked to the curb. Believing the cones were directing her around the construction site, she walked into the street, next to the cones. At that time, Zuniga, who was under the influence of alcohol, came driving around the corner and hit Kelly and her dog. Her dog was killed Kelly was thrown 20-30 feet through the air and landed on the street.

Plaintiff's Contentions, Allegations:
Plaintiff alleged defendants were negligent in blocking off the sidewalk without providing safe alternate access for pedestrians. She also sought to introduce evidence that the City of San Diego requires a permit for blocking sidewalks, and that application for such a permit would have required submission of a traffic control plan setting forth alternate pedestrian access. The court excluded this evidence.

Injuries and/or Damages:
Plaintiff suffered severe abrasions to her chest, arm and face, requiring laser surgery to her face; cut to ear; fractured nose; trauma to front tooth resulting in death of the nerve and requiring a root canal and crown; severe puncture wounds to both shins; soft tissue injury to her neck, arm and legs Death of her dog.

Defense:
Defendants contended Zuniga was the sole cause of the incident. They also denied the sidewalk was blocked by their contractors despite photographs taken by police at the scene which showed yellow caution taped stretched from the side of the building, across the sidewalk and tied to the Casper truck.

Notes:
Plaintiff sought to introduce evidence of defendants failure to obtain a permit for the sidewalk closure. The court excluded the evidence on the grounds the ordinance relied on by Plaintiff and the City did not specifically state that a permit was required although the City custom and practice is to require a permit and the defendants had previously applied for and obtained such permits. When plaintiff sought to introduce a different ordinance which specifically required a permit, the court a

Specials:
PAST MEDICAL: approximately $20,000
FUTURE MEDICAL: approximately $9,000 for psychological counseling, crown, and rhinoplasty
OTHER SPECIALS: Property damage (death of Plaintiffs dog): $400

Demand:
$100,000 per CCP 998 offer ORIGINAL: $250,000
AT TRIAL: $100,000 PLAINTIFFS ATTORNEY ASKED THE JURY FOR: $298,94336
OFFER: At the MSC, defendants each offered $1,500.00

Offer:
DEFT: Casper 998 OFFER: $15,000
DEFT: FCC/Triarc 998 OFFER: $15,000

Verdict or Award:
GROSS AWARD: $261,318 LESS 0%
Plaintiff NEGL = $261,318 NET
Economic Damage $29,34318
Non-economic Damage $232,000

Other Verdict Details:
Plaintiff beat her CCP 998 offer as to each of the three defendants and will be entitled to recover her costs, prejudgment interest from October, 1998 and expert witness fees in the courts discretion.

Length of Trial: Five Days

Jury: Deliberated 65 hours

Jury Polled: Negligence: Casper 40%; Triarc 10%; FCC 40%; Zuniga -0%-

Attorney for client: Catherine A. Richardson

Attorney for defendant:
Patricia Ryan for Triarc and FCC, Horton & Ryan;
David Weber for Casper, Farmer, Weber & Case

Individual Defendants:
Plaintiff was walking her dog near a construction site where improperly placed yellow tape and traffic cones directed her off the sidewalk and into the street where she was hit by a car driven by a drunk driver. She was injured and her dog was killed. Jury verdict for $261,318.00.