entry 1: complaint for damages - wklegaledu.com

Entry 1: Complaint for Damages

IN THE SUPERIOR COURT OF THE STATE OF MAJOR IN AND FOR THE COUNTY OF JAMNER

WILLIAM S. BAILEY, as Personal Representative of the Estate of KELLY O’BRIEN, Plaintiff, v. JAMNER COUNTY, Defendant.

Cause No. 20XX-2-88345 COMPLAINT FOR DAMAGES

COMES NOW the plaintiff, by and through his attorney and claims

damages against defendant in the following particulars:

I. PARTIES

1.1 William S. Bailey was appointed personal representative of the

Estate of Kelly O’Brien, qualified to bring this action on behalf of decedent’s

estate. A copy of the order granting the Estate’s letters of administration is

attached hereto.

1.2 Kelly O’Brien died intestate in Jamner County, Major on June 16,

20XX-2 as a result of injuries sustained on that date on Pioneer Road, Jamner

County, Major. This estate was filed for probate in the Superior Court of

Major for Jamner County.

1.3 Defendant Jamner County is a governmental entity subject to the

jurisdiction of this court.

II. JURISDICTION AND VENUE

2.1 The events forming the basis of this action occurred in Jamner

County, Major and jurisdiction in this court is proper venue.


2.2 On August 21, 20XX-2, plaintiff filed an administrative law claim

with Jamner County. More than 60 days have elapsed from the time of that

claim, leading to the jurisdiction of this court.

III. FACTS

3.1 On or about June 16, 20XX-2, decedent Kelly O’Brien was

driving in a Suzuki motor vehicle southbound on Pioneer Road, Jamner

County, Major. At that time and place, the right wheels of the vehicle

dropped off the pavement in an area where Jamner County was doing road

construction. This led to a series of events wherein the vehicle rolled several

times. Kelly O’Brien died shortly thereafter of the injuries received in this

incident.

IV. LIABILITY

4.1 On the date of this incident, Jamner County controlled and

maintained Pioneer Road as a public thoroughfare. It was the duty of the

defendant, Jamner County, to maintain said roadway, the road surface and

the shoulders thereof, in a safe manner, giving warning of construction, and

in particular, the uneven surface.

4.2 On the date of the incident, Jamner County had ongoing road

repair or construction on Pioneer Road at the location where the incident

complained of occurred. Defendant had a duty to warn of hazardous

conditions created by the said repairs or construction.

4.3 Defendant failed to warn of hazardous conditions on Pioneer

Road; failed to place signs as required by law; failed to prepare the road for

safe travel by motor vehicles; failed to have a shoulder of appropriate paving

material; failed to place safety cones at the abrupt lane edge; failed to place

safety barrels at the abrupt lane edge; failed to place concrete barriers at the


abrupt lane edge; and committed other acts and omissions that will be

revealed during discovery.

V. INJURIES AND DEATH

5.1 As a direct and proximate result of the negligence of defendant

Jamner County, Kelly O’Brien suffered severe injuries, dying at the scene on

June 16, 20XX-2, as a result of the injuries caused by defendant’s negligence.

VI. DAMAGES

6.1 As a direct and proximate result of the negligence of defendant

Jamner County, the Estate of Kelly O’Brien incurred medical expenses,

funeral expenses, lost wages and loss of earning capacity.

6.2 As a further result of said defendant’s negligence, the Estate of

Kelly O’Brien is entitled to compensation for the pain, anguish, disability and

loss of enjoyment of life suffered by Kelly O’Brien.

VII. PRAYER FOR RELIEF

WHEREFORE, plaintiff prays for judgment against defendants, and each

of them, for damages in a reasonable sum to be proved at trial, taxable costs

of this action, attorney’s fees, and further relief as seems just and proper.

DATED this _9th__ day of __November_____, 20XX-2.

MOTON LAW FIRM GC Conway

___________________________________ GERALD CONWAY MOTON Attorney for Plaintiff

Entry 2: Answer

IN THE SUPERIOR COURT OF THE STATE OF MAJOR

IN AND FOR THE COUNTY OF JAMNER WILLIAM S. BAILEY, as Personal Representative of the Estate of KELLY O’BRIEN, Plaintiff, v. JAMNER COUNTY, Defendant.

Cause No. 20XX-2-88345 ANSWER

COMES NOW the defendant, Jamner County, and in response to the

complaint filed by the plaintiff herein does not answer, allege and claim as

follows.

1. In answer to paragraph 1.1 of the plaintiff’s complaint for

damages, the defendant is without information sufficient to form a belief as to

the truth of the matters asserted therein and therefore denies the same.


damages, the defendant admits that Kelly O’Brien died on June 16, 20XX-2

following a motor vehicle accident on Pioneer Road, Jamner County, Major.

The defendant is without information sufficient to form a belief as to the truth

of the remaining matters asserted in paragraph 1.2 and therefore denies the

same.


damages, the defendant admits the same.

Entry 2: Answer

4. In answer to paragraphs 2.1 and 2.2 of the plaintiff’s complaint

for damages, the defendant admits the same.


damages, the defendant admits that on June 16, 20XX-2, Kelly O’Brien was

driving a Suzuki motor vehicle southbound on Pioneer Road, Jamner County,

Major. Also, defendant admits that Kelly O’Brien died as a result of the

injuries received in this incident. Defendant is without information sufficient

to form a belief as to the truth of the remaining allegations of paragraph 3.1

and therefore denies the same.


damages, the defendant admits that it controls and maintains Pioneer Road,

and that it is a county road classified as a major collector according to the

federal functional classifications system for rural roads. Except as specifically

admitted above, the allegations of paragraph 4.2 are denied.


damages, the defendant admits that it had not fully completed its

maintenance work on Pioneer Road at the location where the incident

complained of occurred. Except as specifically admitted above, the

allegations of paragraph 4.3 are denied.


damages, the defendant denies that Kelly O’Brien suffered severe injuries as a

direct and proximate result of the alleged negligence of the defendant. The

defendant is without information sufficient to form a belief as to the truth of

the assertion that Kelly O’Brien survived the accident for any period of time

and therefore denies the same. Defendant admits that Kelly O’Brien died on

June 16, 20XX-2, but denies that this was caused by defendant’s alleged

Entry 2: Answer

negligence. Except as specifically admitted above, the allegations of

paragraph 5.1 are denied.

9. In answer to paragraphs 6.1 and 6.2 of the plaintiff’s complaint

for damages, the defendant denies the same.

BY WAY OF AFFIRMATIVE DEFENSES, the defendant asserts

contributory fault of Kelly O’Brien for the injuries and subsequent death, as

well as defendant’s limited public duty. Also, the defendant alleges that the

design of the Suzuki motor vehicle played a significant role in the causation

of the accident and in the severity of the plaintiff’s injuries. Finally, the

defendant asserts that the plaintiff fails to state a claim upon which relief may

be granted.

WHEREFORE having fully answered the plaintiff’s complaint, the

defendant prays for relief as follows:

1. That the plaintiff’s case be dismissed, with prejudice;

2. That the defendant be awarded judgment against the plaintiff for all of its costs and expenses herein, including an award of attorneys fees, as allowed by law;

3. That the court grant such further and other relief as may be

deemed just and equitable.

DATED this __January___ day of ___3________, 20XX-1.

SCHERER & DIEDEN

Andrew Scherer ___________________________________ ANDREW C. SCHERER Attorneys for Defendant

Entry 3: Cleaver Deposition

DEPOSITION SUMMARY OF JAMNER COUNTY DEPUTY SHERIFF D.W. CLEAVER

On June 16, 20XX-2, dispatch advised me of a rollover accident in the area of

Milepost 7.5 on Pioneer Road. I was advised that there was one injured subject. I arrived in the area at approximately 1228 hours and observed a Suzuki SUV laying on its side. I observed a subject laying in the shoulder approximately 70 feet south of the vehicle. I was advised by other personnel and civilians present that the subject’s name was Terry O’Brien. O’Brien was being attended to and had severe head injuries. I conferred with ambulance personnel, who had arrived at the scene shortly before I did. A helicopter was on the way to evacuate the victim to Memorial Hospital. I began taking photographs of the scene and requested dispatch to send additional personnel to assist with the investigation. I secured the scene with Trooper Foster and then we proceeded to measure it. A tow truck arrived to remove the vehicle. The helicopter arrived. Within minutes, I overheard radio traffic that O’Brien had not survived.

I also checked the Pioneer Road area near the crash site for road signs. I was not able to locate an “Abrupt lane edge” sign for traffic going in either direction, nor was there a “Reduce speed” sign in either direction.

There were sufficient tire marks on the fresh asphalt to allow me to reach preliminary conclusions on the causes of the accident. As a part of my training at the State Patrol Academy, we had a basic course in accident reconstruction which lasted five days. Though I am not a certified accident reconstructionist, I have investigated more than 200 accident scenes in my ten year career on the state patrol. I am qualified to make measurements and draw basic conclusions from those measurements. For more complicated accident reconstruction cases, I defer to the specialist in our unit, who has attended several programs at Texas A & M University.

Based on the tire marks, I was able to conclude that the O’Brien vehicle was southbound on Pioneer Road when the right wheels dropped off the pavement. Though the distance varied between the edge of the road and the shoulder, it was somewhere between three and four inches.

O’Brien attempted to regain the travel portion of the roadway by steering to her left, crossing the highway with lateral tire marks, showing the vehicle’s route over to the northbound lane. The vehicle rolled at least twice.

Our measurements indicated that the tires of the vehicle were off the asphalt for approximately 160 feet before they swerved hard left. The vehicle came back up onto the asphalt and was starting to rotate counterclockwise. The tire marks end for a moment where the driver was starting to turn back sharply to the right and then they go off to the east end of the asphalt and into the shoulder.

I am not trained to use accident reconstruction computer programs, but would

estimate that, from the tire marks left behind, that the vehicle was going somewhere between 50 and 58 m.p.h. when it left the road.

Traffic control signs are helpful in construction zones such as this, however, in my experience as a state trooper, I have seen many circumstances where drivers disregard them. I am not convinced that abrupt lane edge or reduced speed signs would have made a difference here. The new asphalt was jet black, in stark contrast to


the mottled gray gravel shoulder. The other factor that plays in my mind here is that O’Brien knew this road, as it was the only connection between O’Brien’s house and town. This road construction had been going on for more than a month. Given the bright sunny conditions, there was no visibility issue here.

I did not issue any citations to O’Brien. Given that this rollover resulted in death, it just did not seem appropriate to me.

Entry 4: Molina Deposition

DEPOSITION SUMMARY OF JESSIE MOLINA I am a 25-year-old resident of Jamner County, Major. I live a little less than four miles north of the scene where Terry O’Brien was killed on June 16, 20XX-2. I drive up and down Pioneer Road on a regular basis, not only to go to and from my house, but also in the course of my work. I have been employed as a school bus driver with the Pioneer School District for about two years. On June 16, 20XX-2, sometime between 12:00 p.m. and 12:30 p.m., I was driving north on the Pioneer Road toward my home. I know the exact spot in the construction zone where Terry O’Brien’s car left the road, due to my familiarity with the scene. I knew that the road crew had just put new asphalt blacktop on the road surface. As it turned out, I was there at the scene only about five minutes before Terry O’Brien was killed. I saw one “Loose gravel” sign about 3-4 miles to the south of the scene where TerryO’Brien was killed. There were no other signs related to the road resurfacing work either to the north or the south of the accident scene at that time. Specifically, there were no signs advising drivers to reduce their speed or of an abrupt lane edge. The road crew was not working on Pioneer Road on June 16, 20XX-2 in the minutes prior to the accident. There was a sharp drop-off between the edge of the new blacktop surface and the road shoulder in the construction area. I would estimate the drop-off to be around six inches. Later, on the same day that Terry O’Brien was killed, “Abrupt lane edge” signs and “25 m.p.h.” signs were put up on both sides of the construction area. I am positive that this was done after Terry O’Brien was killed, not before. I was frightened to drive down Pioneer Road during the construction, as the drop-off from the paved surface to the side of the road was dangerous. The shoulder of the road on one side drops off sharply. If you went too far to that side, you would likely roll into the ditch. The other side of the road has many sharp jagged pieces of rock, some as big as a football. In the glare of the noonday sun, it is hard to see exactly where it drops off. This is particularly so in that there was no striping of any kind on the road that day. Everybody that lives out here in my area knows what happened to Terry O’Brien and feels that the County did not have the right signs up that day, then tried to cover up their tracks after the fact.

Entry 5: Nelson Deposition

DEPOSITION SUMMARY OF ROBIN C. NELSON, P.E., HIGHWAY DESIGN ENGINEER

My name is Robin C. Nelson. I am a 58-year-old highway design engineer. I

received my bachelor’s degree in mechanical engineering from Purdue University. I was hired by the Major Department of Transportation right out of school, serving as an engineer on a number of major road construction projects throughout the state. In the course of this work, I had to become quite familiar with the specifications and standards for roadway engineering, as well as requirements for traffic control signs and devices.

As my time went on in the Major Department of Transportation, creating my own highway design-consulting firm began to develop as my ideal employment setting. During the course of my work for the government, I had my deposition taken many times by plaintiffs’ lawyers in litigation against the State. I enjoyed the give and take of forensics much more than I had thought I would at the outset.

At this point, I have had my own firm for 15 years. My current billing rate is $350 per hour for document review and site inspections and goes up to $500 per hour for deposition and court testimony. I have worked for both plaintiffs and defendants over the last 15 years, but probably 75% of my work at this point is for the plaintiffs, with the remainder for the government. There are a number of situations where I offer my opinion to one side or the other and they decide not to use me. Apparently, in these circumstances, my opinions and conclusions are not helpful to the party who retained me.

I have a staff of five people working for me, including the receptionist. After paying all my expenses, my average yearly income as a forensic highway design engineer is around $250,000 - $300,000 a year. This is significantly more than I was making as a government employee, which was somewhere around $60,000 a year at the time I left.

I was asked by plaintiff’s counsel to look into the rollover death single car accident that claimed the life of Terry O’Brien. I reviewed all the police reports, as well as traveling to the scene with my survey crew to measure it. It is my opinion that Jamner County’s sole negligence caused this accident. I break down the highway design engineering safety compliance requirements violated by the county into three basic areas:

1. Highways must be safe, with accepted and proven design standards.

2. The public must be protected from any substandard features that

must be left in place on a road for any reason. 3. Warnings and notice of any latent roadway hazard must be left in

place as long as the hazard continues to exist.

The circumstances at this scene required defendant Jamner County to post signs in the vicinity of the accident. It is my opinion that a warned driver who is aware of danger is far less likely to have a serious accident than one who is unaware of the danger. That is why standard traffic control measures and tactics are in place nationwide. It is why uniformity and certainty of application with regard to signage is so very important.

Entry 5: Nelson Deposition

There was no warning posted of the dangerous and extra hazardous condition of the abrupt road edge that existed on Pioneer Road on June 16, 20XX. Had a safe and proper traffic control plan been initiated, it is my opinion that the type of accident involved here would have been substantially less likely to occur.

The Department of Transportation standards that apply to road construction projects such as this required the County to do one or more of the following:

1. Post appropriate warning signs alerting motorists of the condition. 2. Place channeling devices, such as barricades and plastic safety

drums along the traffic side of the drop-off. 3. Place temporary concrete barriers on the traffic side of the drop-

off. 4. For night use, barriers should have paint, reflective tape or

warning lights.

While I agree with Trooper Cleaver that motorists do not uniformly follow traffic control signs, he goes way too far in saying that these signs do not have value. If we were to extend this reasoning to its logical conclusion, we would not have any road signs at all, presuming that nobody would follow them.

I did not go to the accident scene until several months later. I had to rely on the photographs taken by law enforcement as to the conditions as they appeared that day. This is not unusual for me in my career as a forensic highway design expert. An ambiguous situation existed, with lack of definition where the edge of the road ended. Roadway markings are intended to give guidance to drivers. None existed at this location due to the ongoing construction. Abrupt lane edges are tricky even for experienced drivers, particularly on a narrow county road such as this. Certainly, visibility is better when daylight hours on sunny days such as occurred here.

I disagree with Trooper Cleaver that the speed of the decedent was anything more than the posted 50 m.p.h. range. Given the sideways motion of this vehicle, it is much more difficult to accurately determine speed. I do concede that Trooper Cleaver had the opportunity to eyeball the actual conditions on the day of the accident, though the photos were more than adequate for my purposes.

Entry 6: Porter Deposition

DEPOSITION SUMMARY OF KELLY PORTER,

ACCIDENT RECONSTRUCTION EXPERT

My name is Kelly Porter. I am a 45-year-old forensic accident reconstruction expert. I received my two-year AA degree at Modesto Junior College after high school. Upon graduation, I joined the Major State Patrol. After five years, I took a competitive examination and became eligible for specialized training as an accident reconstructionist on the patrol. I was sent to the Traffic Institute at Northwestern University for a six-month period, receiving my certification. I have been back several times since then for refresher courses at Northwestern.

After ten years working as an accident reconstruction expert for the State Patrol, I left and set up my own independent consulting firm. Most of my work comes from referrals either from lawyers representing plaintiffs injured in roadway accidents, or insurance companies or government risk management representatives defending claims. I don’t keep an exact record of percentages, but currently it’s about 60% for the plaintiff, 40% for the defense. In the early years after I left the State Patrol, most of my consultations came from attorneys representing various levels of government. Gradually, over time, I have done more and more plaintiffs’ work.

I charge $250 an hour for consultations involving record reviews, scene visits and writing preliminary reports. My billing rate for deposition or court testimony is $350 per hour. I net at least $200,000 per year from my forensic consulting business. When I left the State Patrol, my salary was $55,000 per year.

I have reviewed all of the reports, photos, highway maintenance documents and other materials in this case. I also have inspected the vehicle involved in this rollover. I have the following opinions in this case:

1. The County’s failure to post reduced speed signs and abrupt lane edge signs were significant factors in causing the accident. If such signs had been posted, the driver could have safely regained the roadway without loss of traction and control.

2. Terry O’Brien went off Pioneer Road due to the abrupt lane edge. It is

evident looking at the photos that the right front tire dropped off due to this condition.

3. The shoulder of the road is hazardous on the side that Terry O’Brien went

off. If O’Brien had not tried to steer back onto the road, there is no question that the vehicle would have rolled over on the right side. Either way, O’Brien was in a very dangerous situation, with hazard staying on that side of the road and hazard trying to get back on. This was a no win situation.

4. The posted speed on the day of the accident was 50 m.p.h. Had this been

lowered, as it should have been, given the dangerous, abrupt edge drop off and the absence of a reasonable recovery area on the opposite side of the

Entry 6: Porter Deposition

roadway, any vehicle going at a reduced speed would not have been nearly as seriously affected by the dramatic steering angle required to regain the roadway. Any reduction of speed below 50 m.p.h. increases a driver’s chance of survival exponentially in this situation. On dry asphalt, such as the surface that Terry O’Brien was traveling on, any vehicle going 30 m.p.h. or less is highly unlikely to sideslip at all. The driver could have safely regained the roadway without loss of traction and control.

5. I am advised that the County has retained the services of an engineer who

states that the design of the Suzuki was partly to blame for what happened. While I do not have an engineering degree, my training and experience in accident reconstruction allows me to render an opinion on this.

6. The typical rollover case due to poor design occurs when the driver makes

an abrupt steering correction and the vehicle flips due to inadequate wheelbase, narrow track and high center of gravity. That isn’t what happened here. Terry O’Brien was out of control on the narrow roadway due to the edge drop-off from the road construction. O’Brien had no opportunity to correct safely. The shoulders on this road were dismal. Even if this were a Mercedes Benz, it would likely have flipped over due to the steepness of the shoulder and the unevenness of the terrain. While I do not have the same engineering calculations as the defense expert to back me up on this, that is not necessary for me to give an opinion here. My training and experience as an accident reconstructionist, where I have to deal with fundamental physics kind of issues on a daily basis, leads me to conclude there is no good faith basis to blame the vehicle manufacturer here. I am aware that there is some litigation against the manufacturer concerning this particular model, but just the fact that there may be lawsuits does not mean that there is any validity to the claims.

Entry 7: Burns Deposition

DEPOSITION SUMMARY OF ALEX BURNS I am the administrative engineer for Jamner County, Major. I have worked in this capacity for the County for the last two years. I became the County engineer 15 years ago. I am a professional engineer. I received a Bachelor of Science in Civil Engineering from the University of Washington in 20XX-30. I became a licensed civil engineer the following year. I am familiar with the city and county design standards for the construction of urban and rural roads issued by the Major Department of Transportation. I am also familiar with the state, federal and local agency guidelines that apply to the design of county roads. I was involved in the planning and design of the road maintenance project the section of Pioneer Road involved in the single car rollover accident which resulted in the death of Terry O’Brien. In my capacity as county engineer, I was required to monitor the adequacy of the county roads, consulting the appropriate standards for use in doing surface repairs, rebuilding of the roadbed and the associated shoulder areas. Pioneer Road is classified as a “rural major connector.” I have performed average daily traffic surveys in two locations in this area every year between when I was first hired by the County and the date of this accident. The counting unit is preprogrammed by computer with site information, start and stop times and other classification data. At the end of the count period, the unit is picked up and downloaded into our computer database. The data then is evaluated to check the number of trips per day, which then tells us what level of repair and rehabilitation is required. The amount of money available to any governmental agency for road repair and rehabilitation is limited. We must prioritize how the money is spent. The volume of traffic on any road is an important factor in this. Pioneer Road is a lesser priority for us, based on the traffic volumes. The work going on out on Pioneer Road at the time of the accident would not be categorized as “reconstruction”. This is a term of art that refers to additional capacity for the through traffic lanes. There was no increase to the capacity of Pioneer Road as a result of the work being done. In that the work being done on Pioneer Road was only routine maintenance, resurfacing of the existing roadway, without adding capacity of the through traffic lanes, this does not require the same level of safety warnings or a signage as projects where the capacity of the road is increased. This accident occurred on a Friday, which is normally a day where our road crews have off. They work Monday through Thursday, ten hours per day. The regulations did not require us to have flaggers there, or warning or speed reduction signs. I will admit that, with 20/20 hindsight, even though the requirements do not actually require us to have such safety measures, it might have been a good thing. Pavement edge drop-offs do present some hazard for unaware drivers. However, in that Terry O’Brien traveled this road before and the rollover occurred in broad daylight, O’Brien should have known to slow down even without a sign. Just to be on the safe side, the day after this occurred, I sent the County sign supervisor out to Pioneer Road, directing him to put reduced speed signs of 25 m.p.h. for

Entry 7: Burns Deposition

traffic going in each direction, as well as “Caution – abrupt lane edge” signs in both directions. The sign supervisor felt a bit funny about this, feeling it might indicate an admission of fault. I do not agree that the county is at fault and just was acting with an abundance of caution. The law did not require us to put up signs.

In addition, over the last ten years, there have only been three rollover accidents along this ten-mile stretch of county road. None of these involved the same kind of dynamics as we had here, where the car veered from one side of the road to the other and then flipped. These other three accidents all involved cars pulling off to the shoulder and then rolling.

Based on the regulations for roadway maintenance, as well as my experience as County engineer, it is my opinion that Jamner County did nothing to contribute to this accident.

Entry 8: White Deposition

DEPOSITION SUMMARY OF LYNN WHITE My name is Lynn White and I am a 48-year-old automotive design engineer. I received my bachelor’s degree in automotive engineering from Wayne State University in Detroit, Michigan and thereafter went to work for General Motors as a product engineer. I spent 12 years with GM, working on a variety of different projects, including accelerator control mechanisms, safety engineering, including air bags, finishing my career at GM in structural failure analysis. Thereafter, I worked for ten years for the GM subsidiary Fisher Body Corporation. During this time, I continued on with various structural aspects of automotive design. After 22 years within the General Motors family, I moved to Los Angeles, California where I was employed by a forensic failure analysis engineering firm. Most of my work for the failure analysis firm involved the defense of crashworthiness cases. I was paid a yearly salary of $325,000, with benefits and performance incentives on top of this. The work was quite demanding and labor intensive, but I enjoy forensics. Since that time, I have started my own firm. I do not have information on what I made over the last year. While my gross receipts were more than when I worked for the failure analysis firm, so are my expenses. However, it is my expectation that I will be substantially better paid as an expert in charge of my own consulting firm than in previous employments. I consider American made cars safer than many imports, particularly the cheaper Asian models. These cheaper Asian vehicles have less steel, structural strength and engineering in them than their American counterparts. I have given speeches at various industry conferences on this, developing a bit of a reputation as a “Pro American” automotive engineer. However, all of this is based on solid research. You get what you pay for. The cheaper imports just don’t have the crashworthiness and the strength of the American models. I was asked by Jamner County to look into the effect that the design of the Suzuki SUV might have had in the single car rollover accident that led to the death of Terry O’Brien. I was given extensive information to review in this case, including police reports, highway maintenance data and photographs. I have also had the opportunity to personally inspect the Suzuki involved in this case. The police photos, with spray painted marks on the roadway, showed where the front tire left the pavement as well as where the yaw began, and the right side tires re-entered the roadway. The drop-off of the pavement does not appear to have affected the steering input entered by the driver at the re-entry point. The vehicle’s right front tire comes up to the pavement fairly directly with no sign of a “tire scrub” mark on the inside of the tire, which is a scuff mark made by contact between the tire and the pavement edge. This is critical. The right front tire climbed the edge of the pavement in a distance of 1-2 feet, which is very short. The direction of the tire marks indicate a rather large velocity back toward the road. The driver is already making a steer to the right at this point, trying to correct the counterclockwise yaw of the vehicle. At this point, the driver is no longer trying to overcome the resistance to the drop-off.

Entry 8: White Deposition

Looking at the tire marks, I would estimate that the vehicle was going somewhere between 44 and 51 m.p.h. However, this is too fast for a road construction area. Though this is basic common sense, not attributable to any expertise on my part, any reasonable driver knows they need to slow down in a road construction area. Given my experience as an accident reconstructionist and my experience in training in the dynamics of vehicles, after using various computer models of vehicles in simulations of other rollover accidents, I have reached the following opinions in this case:

1. The vehicle’s design did play a significant role, much more than any roadway condition. Had the vehicle been designed to be more stable, the accident probably would not have happened.

2. Like many cheaper Asian import automobiles, this vehicle’s structure was

not adequate for retaining an occupant in the vehicle or separating them from the ground. The vehicle does not appear to have particularly strong A-pillars, and it has no C-pillars or a roll bar at the rear.

3. This vehicle is subject to over steering, even in a simple maneuver with

only one steer like the J-turn required in this case. It is much more susceptible to loss of control in emergency situations such as this accident.

In summary, the fault in this case is not attributable to Jamner County, but rather

the strategies and choices of the driver, as well as the design flaws in the vehicle. I will admit that it is well known that a segment of the population has a tendency to try to steer out of trouble in a situation like this rather than to brake. The driver in this case did try to steer back onto the road, which is somewhat predictable when tires drop off the edge of the roadway like this. I also will agree that there is much highway safety literature concerning road construction that abrupt lane edges during road construction or repair can be hazardous. However, in this case, this was a road that was familiar to the decedent.

Entry 9: O’Brien Animation 1

Entry 9 - O’Brien Animation


Entry 10 – O’Brien Animation

Entry 13: Overhead Animation 1

Entry 13 – O’Brien Overhead Animation


Entry 14 O’Brien Overhead Animation

Entry 17: O’Brien Curb Drop Off Photo 1

Entry 17 – O’Brien Curb Drop Off Photo

Entry 18: O’Brien Curb Drop Off Photo 2

Entry 18 – O’Brien Curb Drop Off Photo

Entry 19: O’Brien Car Photo 1

Entry 19 – O’Brien Car Photo

Entry 20: O’Brien Car Photo 2

Entry 20 – O’Brien Car Photo

Entry 21: O’Brien Sign Photo

Entry 22: Statement of the Law

CIVIL CASES – GENERAL STATEMENTS OF THE LAW Expert Witnesses The law allows experts to express an opinion on subjects involving their special knowledge, training and skill, experience, or research. While their opinions are allowed to be given, it is entirely within the province of the jury to determine what weight shall be given to their testimony. A jury is not bound by the testimony of experts; their testimony is to be weighed as that of any other witness. Direct and Circumstantial Evidence The law recognizes two kinds of evidence: direct and circumstantial. Direct evidence proves a fact directly; that is, the evidence by itself, if true, establishes the fact. Circumstantial evidence is the proof of facts or circumstances that give rise to a reasonable inference of other facts; that is, circumstantial evidence proves a fact indirectly in that it follows from other facts or circumstances according to common experience and observations in life. An eyewitness is a common example of direct evidence, while human footprints are circumstantial evidence that a person was present. The law makes no distinction between direct and circumstantial evidence as to the degree or amount of proof required, and each should be considered accordingly to whatever weight or value it may have. All of the evidence should be considered and evaluated by the jury. Burden of Proof A plaintiff has the burden of proving each of the following propositions by a preponderance of the credible evidence. First, that the defendant acted, or failed to act, in one of the ways claimed by the plaintiff and that in so acting, or failing to act, the defendant was negligent. Second, that the negligence of the defendant was a proximate cause of plaintiff’s damages. “Proximate cause” means an act or omission that, in a natural and continuous sequence, produces an event that would not have occurred without the act or omission. In addition, in order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably be produced thereby. To establish the affirmative defense of contributory negligence, the defendant has the burden of proof by a preponderance of the evidence:

Any findings of fact must be based on probabilities, not possibilities, speculation or conjecture.

Negligence

Entry 22: Statement of the Law

“Negligence” is the failure to exercise ordinary care. It is the doing of some act that a reasonably careful person would not do under the same or similar circumstances or failure to do something that a reasonably careful person would have done under the same or similar circumstances. “Ordinary care” means the care a reasonably careful person would exercise under the same or similar circumstances. Contributory Negligence Contributory negligence is negligence, as defined above, on the part of a plaintiff or third person that is a proximate cause of the injury complained of. If you find contributory negligence, you must determine the degree of negligence, expressed as a percentage, that is attributable to plaintiff. General Duty of Care Every person has a duty to see the risks of harm to others that could result from their actions or failure to act that would be seen by a person exercising ordinary care. It is the duty of every person using a public street or highway to exercise ordinary care to avoid placing himself or herself or others in danger and to exercise ordinary care to avoid a collision.

entry 1: complaint for damages - wklegaledu.com

Documents