California Verdicts

Amount:

$6,000,000

Type:

Mediated Settlement

State:

California

Venue:

Stanislaus County

Court:

Superior Court of Stanislaus County, Modesto

Injury Type(s):

Case Type:

Premises Liability – School; School – Negligent Supervision; Premises Liability – Dangerous Condition of Public Property

Case Name:

Justice Van Dyke, by and through her Guardians Ad Litem Tony Pascoal and Kimberly Pascoal v. Turlock Unified School District and Dennis Earl Elementary School,
No. 670665

Date:

December 11, 2013

Plaintiff(s):

Justice Van Dyke (Female, 6 Years)

Plaintiff Attorney(s):

Eric M. Abramson;
Abramson Smith Waldsmith, LLP;
San Francisco,
CA,
for
Justice Van Dyke

Plaintiff Expert(s):

Rick Sarkisian;
Ph.D.;
Vocational Rehabilitation;
Fresno,
CA called by
Eric M. Abramson ■ Karen Aznavoorian;
M.A.;
Life Care Planning;
Fresno,
CA called by
Eric M. Abramson ■ Carina Grandison;
Ph.D.;
Developmental Psychology;
Berkeley,
CA called by
Eric M. Abramson ■ Jerome Barakos;
M.D.;
Neuroradiology;
San Francisco,
CA called by
Eric M. Abramson ■ Sharon Grandinette;
M.S., C.B.I.S.T.;
Special Education;
Redondo Beach,
CA called by
Eric M. Abramson ■ Deborah Doherty;
M.D.;
Physical Medicine;
Kentfield,
CA called by
Eric M. Abramson ■ Phillip Allman;
Ph.D.;
Economics;
San Francisco,
CA called by
Eric M. Abramson

Defendant(s):

Dennis Earl Elementary School, 

Turlock Unified School District

Defense Attorney(s):

Jeffrey R. Olson;
McCormick, Barstow LLP;
Modesto,
CA,
for
Dennis Earl Elementary School, Turlock Unified School District

Defendant Expert(s):

Paul Fisher;
Pediatric Neurology;
Palo Alto,
CA called by
Jeffrey R. Olson ■ Nancy Mahaney;
Neuropsychology;
Sacramento,
CA called by
Jeffrey R. Olson

Insurer(s):

Northern California ReLiEF (primary carrier) for Turlock Unified School District
Schools Association; For Excess Risk (excess) for Turlock Unified School District

On Oct. 20, 2010, plaintiff Justice Van Dyke, 6, was on the campus of Dennis Earl Elementary School in Turlock. Before class, some larger third grade boys were running and playing a prohibited game of keep-away or tag when one of the larger third grade boys ran into Justice, knocking her to the ground. As a result, the back of Justice’s head slammed against the hard, concrete ground. None of the adults on campus stopped the running or saw the collision and injury occur. Justice was medically assessed by an office secretary because there was no nurse or medical tech on campus when the accident occurred. Justice was then sent to class, where she complained of a horrible headache developed. She was then seen by the school’s health technician, who had Justice lay down with ice for two hours. Justice then became unconscious and unresponsive, and had a seizure. Finally, 911 was called, and Justice was airlifted to UCSF Medical Center in San Francisco, where she was treated for head and brain injuries. Justice’s grandparents, Tony and Kimberly Pascoal, acting as Justice’s guardians ad litem, sued the Turlock Unified School District and Dennis Earl Elementary School. The Pascoals alleged that the defendants were negligent in the supervision of the students and in the medical care they provided to Justice. The matter only proceeded against the school district. Plaintiff’s counsel contended the school district’s personnel failed to supervise and control the conduct of the students on campus before class, as there were only four adults to supervise the conduct and activities of over 700 children. Thus, counsel asserted that this negligent supervision created a dangerous condition of public property pursuant to Government Code § 835. Plaintiff’s counsel further contended that the school district unreasonably failed to provide necessary medical care to Justice for over two hours. Defense counsel contended that the school district’s personnel acted reasonably and that there was no dangerous condition of public property. Counsel also contended that there was no unreasonable delay in providing Justice with necessary medical care.

While still at the elementary school, Justice became unconscious and unresponsive, and had a seizure. She was subsequently airlifted to UCSF Medical Center, where she received anti-seizure medication, a blood product transfusion, and was placed under observation. It was determined that Justice sustained an occipital skull fracture and traumatic brain injury, consisting of a right frontal intraparenchymal hematoma, an acute subarachnoid hemorrhage, and a subdural hematoma with midline shift. She was ultimately discharged from the medical center after five days. Justice now suffers from a seizure disorder. Plaintiff’s counsel contended that Justice has cognitive deficits that affect her short term memory and attention, which will likely prevent Justice from graduating high school. Counsel also contended that Justice’s frontal lobe damage will prevent full development of executive function, which will likely prevent Justice from employment and independent living. Defense counsel contended that any learning disabilities were pre-existing due to Justice’s congenital heart defect, with which she was born. Specifically, counsel contended that Justice’s learning disabilities were due to prior hypoxic events and missing significant time from classes due to surgeries and treatments for her pre-existing hypoplastic left heart syndrome.

After a full day of mediation, the case settled for $6 million, which will fund an annuity that will pay Justice’s special needs trust. Specifically, the sum of $15,000 per month will be paid for 40 years, or life, and various lump-sum payments will be made to Justice at ages 25, 30, 35 and 40. Thus, the guaranteed benefits will equal $7,427,400 and lifetime benefits will total $14,089,620.

Judge:

Hurl Johnson; Neutral: Michael Ornstil

This report is based on information that was provided by plaintiff’s and defense counsel.