California Verdicts

Plaintiff(s):

James Poole (Male), 

Georgianna Powell (Female), 

Estate of Jamie Scott Powell (Male, 23 Years)

Plaintiff Attorney(s):

Ian C. Fusselman;
Thorsnes Bartolotta McGuire;
San Diego,
CA,
for
James Poole, Georgianna Powell, Estate of Jamie Scott Powell ■ Rebecca B. Morrison;
Blain Morrison Law Corporation;
San Diego,
CA,
for
James Poole, Georgianna Powell, Estate of Jamie Scott Powell

Defendant(s):

City of San Diego, 

BNSF Railway Company, 

Suzuki Motor of America Inc.

Defense Attorney(s):

Jane M. Boardman;
Office of the City Attorney;
San Diego,
CA,
for
City of San Diego ■ Anthony E. Sonnett;
Lewis Brisbois Bisgaard & Smith LLP;
Los Angeles,
CA,
for
BNSF Railway Company ■ None reported; Los Angeles,
CA,
for
Suzuki Motor of America Inc.

Defendant Expert(s):

Steven Anderson;
Motorcycles;
Laguna Hills,
CA called by:
Jane M. Boardman

On March 17, 2014, plaintiffs’ decedent Jamie Powell, 23, a U.S. Navy sailor, was riding his Suzuki motorcycle to work on the 32nd Street Naval base. As he was traveling north on Harbor Drive, near the intersection with 28th Street, in San Diego, his motorcycle began to jerk back and forth. Powell attempted to regain control of the motorcycle as it swerved in between lanes and into the median, but the motorcycle ultimately collapsed, or ‘capsized,’ in the median between the north and southbound lanes. As a result, Powell was thrown into the southbound lanes of traffic, where he was immediately struck by a vehicle and died at the scene. The decedent’s mother and father, Georgianna Powell and James Poole, acting individually and on behalf of their son’s estate, sued the manufacturer of the motorcycle, Suzuki Motor of America Inc.; the maintainer of the roadway, the city of San Diego; and the maintainer of railroad tracks that the decedent crossed shortly before the accident, BNSF Railway Co. The decedent’s family alleged that the city failed to properly maintain the roadway, creating a dangerous condition of public property and that BNSF Railway failed to maintain the railroad tracks, also creating a dangerous condition. The decedent’s family claimed that Suzuki was mistakenly named in the suit, and that at trial, neither the city nor BNSF Railway suggested that Suzuki was in any way responsible for the accident. Thus, Suzuki was dismissed from the case six weeks after the matter was filed. Plaintiffs’ counsel noted that witnesses described seeing the decedent’s motorcycle wobbling, or tanking slapping, at a sharply skewed railroad-highway grade crossing on northbound Harbor Drive. The crossing was comprised of concrete crossing panels, which were owned and maintained by BNSF Railway, and an asphalt approach, which was owned and maintained by the city. Plaintiffs’ counsel contended that, at the time of the accident, the asphalt approach had multiple potholes in the northbound lanes and that the rubber flangeway filler in the crossing panels had deteriorated, leaving the flangeway exposed by seven inches. Thus, counsel argued that the decedent struck one or more of the potholes in the asphalt approach, causing the front wheel of the decedent’s motorcycle to become caught in the 7-inch flangeway that all drivers were forced to cross at a sharp, 14-degree angle. Counsel argued that as a result of the defects, the decedent’s motorcycle was caused to wobble, or tank slap, and continued to wobble with increasing severity until it capsized in the median, throwing the decedent into oncoming traffic. Plaintiffs’ counsel argued that the asphalt approach was poorly maintained and that the city had received numerous complaints about potholes, poor patching, uneven surfaces, and degraded asphalt on Harbor Drive prior to the accident. Counsel contended that the city was specifically warned by at least one citizen prior to the accident that the condition of Harbor Drive created a hazard for motorcycles. Plaintiff’s counsel contended that the asphalt overlay that created the crossing approach was at least 2 inches deep, creating 2-inch potholes when portions of the asphalt ‘popped off’ from the underlying concrete and that the city produced no evidence that the potholes were less than 1.5 to 2 inches deep. Counsel argued that the flangeway of the crossing panels did not comply with BNSF Railway’s own engineering instructions, which required the flangeway to be constructed and maintained at a width of 3 to 4 inches. Plaintiffs’ counsel further argued that at the time of the accident, the flangeway was 7 inches wide in over 19 feet of the northbound lane, where the decedent was traveling, and that BNSF Railway was dismissive of the danger that wide gaps pose to two-wheeled vehicles, including motorcycles, that are forced to cross the tracks at a sharp, 14-degree angle. In addition, plaintiffs’ counsel argued that the decedent was traveling at 55 mph at the time of the accident and that his speed was insufficient to cause wobbling, as described by witnesses to the accident. Defense counsel contended that the decedent’s motorcycle was heavily modified and that the modifications made the motorcycle less stable. Counsel also argued that the decedent was travelling at least 72 mph at the time of the accident. Counsel for BNSF Railway contended that the tracks complied with BNSF Railway’s internal safety guidelines and that they had been inspected multiple times by state and federal agencies without being found to pose any danger. Counsel also argued that there was no evidence that the decedent drove over a specific section of track that was alleged to be degraded. Counsel for the city of San Diego argued that there was no evidence the alleged pothole(s) constituted a dangerous condition or that the decedent drove over a pothole prior to the accident.

Jamie Powell was thrown into the southbound lanes of traffic, where he was immediately struck by a vehicle and sustained multiple traumatic injuries. He died at the scene. Powell was 23 years old. He was survived by his mother, Georgianna Powell, and father, James Poole. Thus, the decedent’s parents sought recovery of $4.9 million in wrongful death damages for the loss of their son. Specifically, Ms. Powell sought recovery of $2.8 million and Poole sought recovery of $2.1 million, based on their respective ages and life expectancies.

The jury rendered a defense verdict. It found that BNSF Railway was not negligent and that the city was not liable for the crash, as the pothole and road did not constitute a dangerous condition.

Judge:

John S. Meyer

Demand:

$249,000 (C.C.P. § 998) each to City and BNSF

Offer:

Waiver of costs from the city

Trial Length:

2
 weeks

Trial Deliberations:

30
 minutes

Jury Vote:

unanimous

This report is based on information that was provided by plaintiffs’ counsel, and defense counsel for the city of San Diego and BNSF Railway Co. Counsel for Suzuki Motor of America Inc. was not asked to contribute.