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Negligently installed guardrail caused serious injuries: plaintiffs
Santa Clara County
Superior Court of Santa Clara County, Santa Clara
arm-fracture (fracture, ulna); arm-fracture (fracture, radius); arm-fracture, humerus; leg; back-fracture (fracture, L4), back (fracture, L4); back-fracture (fracture, L4), vertebra (fracture, L4); knee; knee-fracture; brain-traumatic brain injury; brain-diffuse axonal brain injury; chest-diaphragm, tear; other-contracture; other-phantom pain; other-retropulsion; other-physical therapy; other-heterotropic ossification; abdomen amputation-leg (leg (above the knee)); urological-neurogenic bowel; urological-neurogenic bladder; mental/psychological-learning disability; pulmonary/respiratory-collapsed lung; gastrointestinal/digestive-liver (liver, laceration); gastrointestinal/digestive-bowel/colon/intestine, perforation
Motor Vehicle - Passenger, Road Defect, Single Vehiclep; Products Liability - Design Defect, Failure to Warn; Worker/Workplace Negligence - Negligent Assembly or Installation
Liam Pappakostas, a Minor, by and through his Guardian ad Litem, Laura Pappakostas, and Mark Pappakostas v. State of California, Department of Transportation; Trinity Highway Products, LLC; Trinity Industries, Inc.; and Does 1 through 50, No. 2013-1-CV-254101
June 6, 2016
Liam Pappakostas (Male, 3 Years),
Mark Pappakostas (Male, 47 Years)
Eric M. Abramson; Abramson Smith Waldsmith, LLP; San Francisco, CA, for Liam Pappakostas, Mark Pappakostas ■ Jeffrey R. Smith; Abramson Smith Waldsmith, LLP; San Francisco, CA, for Liam Pappakostas, Mark Pappakostas ■ William B. Smith; Abramson Smith Waldsmith, LLP; San Francisco, CA, for Liam Pappakostas, Mark Pappakostas
Midstate Barrier Inc.,
Trinity Industries, Inc.,
Trinity Highway Products, LLC,
State of California, Department of Transportation
Vincent Galvin, Jr.; Bowman and Brooke LLP; San Jose, CA, for Trinity Industries, Inc., Trinity Highway Products, LLC ■ Landa S. Low; State of California, Department of Transportation - Legal Division; Oakland, CA, for State of California, Department of Transportation ■ Taylor J. Pohle; State of California, Department of Transportation - Legal Division; Oakland, CA, for State of California, Department of Transportation ■ None reported; for Midstate Barrier Inc. ■ Alan M. Steinberg; State of California, Department of Transportation - Legal Division; Sacramento, CA, for State of California, Department of Transportation
Ace Group of Cos. for Trinity Highway Products, LLC and Trinity Industries, Inc. self-insured State of California, Department of Transportation
At around 3 p.m. on Dec. 16, 2012, plaintiff Mark Pappakostas, 47, a marketing director, was driving a Honda Odyssey on the southbound Guadalupe Parkway, also known as State Route 87, in San Jose. Pappakostas was returning home from a memorial service in Vallejo with his son, plaintiff Liam Pappakostas, 3, properly restrained in a child booster seat in the right, rear passenger seat. However, Pappakostas momentarily dozed off, causing the vehicle to drift off the road and strike the end of a roadside metal beam guardrail. (No drugs or alcohol were involved, and Mark Pappakostas claimed he did not feel sleepy during the drive.) The protective guardrail end-terminal was designed to fold and collapse when struck "end-on," but failed to do so when the Odyssey struck it. As a result, the rigid metal beam guardrail penetrated the vehicle, causing a traumatic amputation of Mark Pappakostas' right leg, and numerous injuries to Liam's head and body. Pappakostas and his son, Liam, who was acting by and through his guardian ad litem, sued the maintainer of the roadway, the State of California, Department of Transportation (Caltrans); the manufacturer of the guardrail, Trinity Highway Products, LLC; and Trinity Highway Products' parent company, Trinity Industries Inc. The maintenance contractor that Caltrans hired to install the rail, Midstate Barrier Inc., was later added as a defendant. However, Midstate was ultimately granted summary judgment based on the "completed and accepted work doctrine," and was dismissed from the action. Plaintiffs' counsel contended that the guardrail and end-terminal had been improperly installed, which caused it to fail and penetrate the vehicle through the engine and passenger compartments. Thus, counsel contended that the guardrail and end-terminal constituted a dangerous condition of public property under California Government Code §§ 830 and 835, for which Caltrans was liable. Further, as to Caltrans, plaintiffs' counsel contended that, based on the terrain, the guardrail length of need was too short and thus, the protective guardrail end-terminal should have been located north of the crash site, adjacent to level terrain, in which case the Pappakostas vehicle would have collided obliquely with the guardrail's length of need and been redirected back onto the road, rather than being speared by the guardrail end. As to the manufacturer, Trinity, plaintiffs' counsel asserted that the guardrail end-terminal system was defective in that it was not designed to prevent misinstallation, lacked on-product warnings and instructions, and was accompanied with instructions that were unclear. Counsel contended that the misinstallation consisted of the second 12-foot, 6-inch slotted guardrail being installed backward, such that the "slot guard" was positioned in front of, rather than beyond or "downstream" of, the longitudinal slots in the metal beam guardrail. (Slot guards are supposed to prevent the slots from tearing down the length of the rail, and facilitate folding of the rail.) Plaintiffs' counsel contended that installing the slotted guardrail backward rendered the slot guard useless in preventing the slots from ripping and tearing upon impact by an errant vehicle, causing the end-terminal system to tear away and expose the rigid metal beam guardrail, which ended up impaling the Pappakostas vehicle. Counsel further contended that the longitudinal slots weaken the dynamic buckling strength of the end-terminal and allow it to fold and collapse when struck "end-on." According to plaintiffs' counsel, investigative efforts found that the guardrail end-terminal system at issue was misassembled at numerous other locations throughout California. As a result, the state investigated over 14,000 end-terminal systems and found 741 that had been improperly assembled. Since the improperly assembled systems allegedly presented an impalement hazard to foreseeable errant vehicles, the misassembled systems were corrected, and the state recently suspended the use of that particular guardrail end-terminal system for repairs and new installations. Caltrans' counsel acknowledged that the end treatments manufactured by Trinity Highway Products were defective, in that they were susceptible of being installed in reverse, which could result in failure and potential impalement during side impacts. Counsel also contended that the reversed rail at the subject crash location was negligently installed by Caltrans' maintenance contractor, Midstate Barrier Inc. Thus, during the course of litigation, Caltrans independently initiated a statewide survey, identifying and correcting all locations with reversed rails. However, Caltrans' counsel asserted that the subject location, with the reversed rail, did not constitute a dangerous condition, in that it did not present a substantial risk of injury when used with due care (per Government Code § 830). Counsel also asserted that Caltrans had crash tests conducted on properly installed and reversed rails, and found that the reversed rail did not increase the risk of the rail tearing during an end-on collision, such as the one involved in Pappakostases' case. In addition, Caltrans' counsel contended that Pappakostas was chronically and acutely sleep-deprived, and susceptible to falling asleep while driving. Counsel asserted that as a result, Pappakostas fell asleep at the wheel, and then braked and counter-steered toward the road as he struck the guardrail end treatment. Counsel contended that as the vehicle continued forward, it struck down six guardrail posts, and ultimately caused the rail itself to fail and penetrate the vehicle. Thus, Caltrans' counsel asserted that the crash was caused by Pappakostas' negligent operation of his vehicle.
Liam sustained a traumatic brain injury with diffuse axonal injuries, a left lung collapse, and a burst fracture of the L4 vertebra with retropulsion of the L4 vertebra into the spinal canal. He also sustained fractures of the left humerus, radius and ulna. In addition, he sustained an open abdomen with bowel evisceration, a ruptured diaphragm, and a lacerated liver. Liam was subsequently taken to Santa Clara Valley Medical Center, in San Jose, where he remained until Feb. 18, 2013. While an inpatient at the hospital, he underwent multiple abdominal surgeries, and the ulnar fracture was plated. He was then transferred to Lucile Packard Children's Hospital Stanford, in Palo Alto, where he remained from Feb. 18, 2013 until March 3, 2014. While an inpatient at the children's hospital, Liam underwent multiple additional abdominal repair surgeries, as well as wound care, plastic surgery, and physical and occupational therapy. He later also underwent surgeries to release the lower extremity contractures and remove the ulnar plate. Liam's occupational and physical therapy is ongoing, and he ambulates only with the aid of leg bracing and assistive devices. He is otherwise wheelchair bound. Liam is also left with a learning disability, oral aversion, sensory and motor deficits of his left leg, and a neurogenic bowel and bladder. He is not expected to complete high school, hold employment, or live independently. Pappakostas sustained severe fractures of the right knee, which were unrepairable and led to an above-the-knee amputation. Thereafter, he underwent physical therapy. Pappakostas will require a prosthetic for the rest of his life. His gait is now awkward and uneven, which he claimed leads to hip and low back pain. He also claimed that he suffers from daily phantom foot and leg pain, and heterotrophic ossification in his right stump. Liam's past medical costs totaled $6,194,450, while Pappakostas' past medical costs totaled $160,350. However, the liens were reduced to $2.2 million. Liam's guardian also sought recovery of $37 million for Liam's future medical costs, and sought recovery of damages for Liam's past and future pain and suffering. Pappakostas also sought recovery of $3 million for his own future medical costs, as well as sought recovery of damages for his past and future pain and suffering. Caltrans' counsel contended that the injuries alleged by Liam and his father were caused by Pappakostas' negligent operation of his vehicle. Although Caltrans' counsel concurred with the plaintiffs' past medical costs, they disputed the alleged future care amounts, asserting that Liam's future care should amount to between $4 million and $6 million and that Pappakostas' future care should amount to $2 million.
Prior to trial, Caltrans agreed to a $10 million settlement, of which Liam received $8 million and Pappakostas received $2 million. Annuities purchased for the benefit of Liam will allegedly pay out over $20 million over his lifetime. Trinity Highway Products and Trinity Industries settled with Liam and Pappakostas for terms that were satisfactory to all parties.
William J. Elfving
This report is based on information that was provided by plaintiffs' and defense counsel. Midstate Barrier Inc. was not asked to contribute.