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California Verdicts

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Skateboarder claimed driver failed to look while making turn

Amount:

$11,000,000

Type:

Verdict-Plaintiff

State:

California

Venue:

Orange County

Court:

Superior Court of Orange County, Orange

Injury Type(s):

head-blunt force trauma to the head; brain-traumatic brain injury; mental/psychological; mental/psychological-anxiety; mental/psychological-emotional distress; mental/psychological-behavioral disorder

Case Type:

Recreation - Skateboard; Motor Vehicle - Red Light, Right Turn, Intersection

Case Name:

Samuel Paul Kim v. Arsham Baltayan, Paul H.P. Fang, and Costa Mesa Lincoln Mercury, Inc., No. 30-2011-00527824-CU-PA-CJC

Date:

October 13, 2016

Parties

Plaintiff(s):

Samuel Paul Kim (Male, 14 Years)

Plaintiff Attorney(s):

Jae Y. Lee; Lee & Associates P.C.; Los Angeles, CA, for Samuel Paul Kim ■ Daniel E. Hoffman; Lee & Associates P.C.; Los Angeles, CA, for Samuel Paul Kim

Plaintiff Expert(s):

F. Rudnick; M.D.; Psychiatry; Los Angeles, CA called by: Jae Y. Lee, Daniel E. Hoffman ■ Jan Roughan; R.N., B.S.N.; Life Care Planning; Los Angeles, CA called by: Jae Y. Lee, Daniel E. Hoffman ■ Eric Deyerl; P.E.; Accident Reconstruction; Culver City, CA called by: Jae Y. Lee, Daniel E. Hoffman ■ Arnold Purisch; Ph.D.; Neuropsychology; Laguna Hills, CA called by: Jae Y. Lee, Daniel E. Hoffman ■ Michael Gold; M.D.; Neurology; Santa Monica, CA called by: Jae Y. Lee, Daniel E. Hoffman ■ Soyoung Sung; Psy.D.; Clinical Psychology; Los Angeles, CA called by: Jae Y. Lee, Daniel E. Hoffman

Defendant(s):

Paul H.P. Fang, 

Arsham Baltayan, 

Costa Mesa Lincoln Mercury, Inc.

Defense Attorney(s):

Edward R. Leonard; Harrington, Foxx, Dubrow & Canter, LLP; Orange, CA, for Paul H.P. Fang, Arsham Baltayan, Costa Mesa Lincoln Mercury, Inc. ■ Julee M. Fritsch; Harrington, Foxx, Dubrow & Canter, LLP; Orange, CA, for Paul H.P. Fang, Arsham Baltayan, Costa Mesa Lincoln Mercury, Inc. ■ David M. Frishman; Lewis Brisbois Bisgaard & Smith, LLP; Los Angeles, CA, for Paul H.P. Fang, Arsham Baltayan, Costa Mesa Lincoln Mercury, Inc.

Defendant Expert(s):

Alvin Lowi, III; Accident Reconstruction; El Segundo, CA called by: Edward R. Leonard, David M. Frishman ■ Barry Ludwig; Neurology; Los Angeles, CA called by: Edward R. Leonard, David M. Frishman ■ David Thom; Safety; El Segundo, CA called by: Edward R. Leonard, David M. Frishman ■ Harry Smith; Biomechanics; San Antonio, TX called by: Edward R. Leonard, David M. Frishman ■ Karen Preston; Physical Rehabilitation; Sacramento, CA called by: Edward R. Leonard, David M. Frishman ■ Marcel Ponton; Neuropsychology; Pasadena, CA called by: Edward R. Leonard, David M. Frishman ■ Anthony Stein; Ergonomics/Human Factors; La Canada, CA called by: Edward R. Leonard, David M. Frishman ■ Jeffrey Victoroff; Neurology; Torrance, CA called by: Edward R. Leonard, David M. Frishman

Insurer(s):

Sentry Insurance for Arsham Baltayan and Costa Mesa Lincoln Mercury, Inc.

Facts:

On June 23, 2006, plaintiff Samuel Kim, 14, was attempting to cross 195th Street on his skateboard at the intersection with Pioneer Boulevard, in Cerritos, when he was struck by a vehicle operated by Arsham Baltayan, who was attempting to make a right turn on a red light from northbound Pioneer Boulevard onto eastbound 195th Street. Samuel was subsequently knocked to the ground and sustained injuries to his head, as he was not wearing a helmet, as was required by law. Samuel sued Baltayan; Baltayan's employer, Costa Mesa Lincoln Mercury Inc.; and the owner of Costa Mesa Lincoln Mercury, Paul Fang. Samuel alleged that Baltayan was negligent in the operation of his vehicle and that Costa Mesa Lincoln Mercury and Fang were liable for Baltayan's actions while in the course and scope of his employment. Fang was ultimately dismissed from the case prior to trial. Samuel claimed that he entered the intersection's crosswalk on his skateboard when the light for his direction of travel had just turned green. He also claimed that just before impact, he saw Baltayan looking to his left and not in the direction he was driving. Samuel claimed that this was the last thing he remembered prior to impact. Baltayan contended that he came to a complete stop at the intersection before he entered the crosswalk and that he carefully looked in all directions before he took his foot off of the brake, at which time he entered the crosswalk and began to slowly make a right turn. Thus, Baltayan contended that Samuel was skateboarding at a high rate of speed and that Samuel ran into the side of his vehicle as he was making a lawful right turn. Baltayan further contended that he was almost completely through the crosswalk when Samuel struck the side of his vehicle. A witness in Baltayan's passenger seat corroborated Baltayan's version of events. Defense counsel stressed the law that required minors to wear helmets while skateboarding, and multiple helmet experts contended that Samuel's head injury would have been prevented had Samuel been wearing a helmet. Defense counsel also highlighted the fact that Samuel neither pressed the pedestrian 'Walk' button nor stopped at the crosswalk prior to entering it. In response, plaintiff's counsel noted that Baltayan claimed that as he was making his right turn, he came to a complete stop, checked both directions for oncoming traffic several times, checked for traffic that may have been making a U-turn, and checked for pedestrians in all four crosswalks located at the intersection. Thus, plaintiff's counsel argued that Baltayan's claim of high vigilance was unnaturally high and, therefore, unbelievable.

Injury:

Samuel claimed he sustained blunt force trauma to the head, resulting in a traumatic brain injury. He was immediately taken to Long Beach Memorial Hospital, in Long Beach, where he was treated and released. Samuel claimed he exhibited extreme social anxiety and paranoia after the accident. Thus, he claimed that his brain injury resulted in personality and behavioral changes that were first noticed within a few months of the accident. Plaintiff's counsel contended that proof of Samuel's personality changes was made difficult due to the incident being 10 years before trial and due to Samuel's continued school attendance and participation in team sports. Plaintiff's medical experts testified that because of Samuel's problems with concentration after the accident, Samuel would need at least an attendant for safety purposes. Samuel elected to waive his claims for medical expenses incurred, as well as any claim for loss of earnings and/or loss of earning capacity. Thus, he sought recovery only for his future medical costs and damages for his past and future pain and suffering. The defense's medical experts opined that Samuel's head injury was relatively mild and that any behavioral changes, to the extent they existed, were mostly due to unrelated causes. In response, plaintiff's counsel attempted to discredit the defense's experts who claimed that a helmet would have prevented Samuel's head injury by utilizing testimony from prior cases where the same experts had testified that a helmet would not have prevented a contra coup-type injury nor would it have prevented diffuse axonal injuries.

Result:

The jury apportioned 75 percent fault to Baltayan and his employer and 25 percent fault to Samuel. It determined that Samuel's damages totaled $11 million. After a reduction for comparative negligence, Samuel should recover $8.25 million, which exceeded the defendants' $5.5 million policy limit.

Samuel Paul Kim: $8,500,000 Personal Injury: future life care; $1,000,000 Personal Injury: past non-economic damages; $1,500,000 Personal Injury: future non-economic damages

Actual Award:

$8,300,000

Trial Information:

Judge:

Gail A. Andler

Demand:

$5,500,000 policy limits

Offer:

$750,000

Trial Length:

9  weeks

Post Trial:

The matter ultimately settled after the verdict for $8.3 million, with Costa Mesa Lincoln Mercury's insurance carrier agreeing to pay the excess verdict.

Editor's Comment:

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