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Driver claimed road should have had left-turn pocket lane

Amount:

$12,344,723

Type:

Verdict-Plaintiff

State:

California

Venue:

San Mateo County

Court:

Superior Court of San Mateo County, San Mateo

Injury Type(s):

leg-fracture (fracture, femur);
neck-fracture (fracture, pars interarticularis);
chest-fracture, rib;
chest-fracture, sternum;
elbow; other-death; other-swelling; other-loss of society; other-multiple trauma; other-comminuted fracture; other-decreased range of motion; other-scar and/or disfigurement; shoulder-fracture (fracture, clavicle);
epidermis-contusion; foot/heel-fracture (fracture, calcaneus/heel);
mental/psychological-depression; pulmonary/respiratory-lung, contusion

Case Type:

Motor Vehicle – Center Line, Road Defect, Multiple Impact, Multiple Vehicle; Premises Liability – Negligent Repair and/or Maintenance, Dangerous Condition of Public Property

Case Name:

Jerald Wolkoff and Sandra R. Wolkoff v. State of California, Department of Transportation; State of California Department of Forestry and Fire Protection (Calfire); State of California Department of Parks and Recreation; Shannon Criss; Terry Kaiser; San Mateo County Fire Protection Services; San Mateo County/CDF Fire Department, Station 59; San Mateo County Department of Health Services; County of San Mateo Emergency Medical Services; American Medical Response West (AMR); Instrumentation Industries, Inc.; Boundtree Medical, a Subsidiary of Sarnova, Inc.; Pie Ranch; Jeffrey Allen Bluestone; Santiago Nabor; Estela Antonio; and Does 1 to 200 / Cindy Burkowski v. State of California, Department of Transportation; Pie Ranch; Jeffrey Allen Bluestone; Santiago Nabor; Estela Antonio; and Does 1-150, Inclusive,
No. CIV481154; CIV486741

Date:

May 2, 2016

Parties

Plaintiff(s):

Jerald Wolkoff (Male), 

Cindy Burkowski (Female, 29 Years), 

Sandra R. Wolkoff (Female), 

Estate of Steven N. Wolkoff (Male, 30 Years)

Plaintiff Attorney(s):

Steven J. Brewer;
Gwilliam Ivary Chiosso Cavalli & Brewer APC;
Oakland,
CA,
for
Jerald Wolkoff, Sandra R. Wolkoff, Estate of Steven N. Wolkoff ■ Thomas J. Brandi;
The Brandi Law Firm;
San Francisco,
CA,
for
Cindy Burkowski ■ J. Gary Gwilliam;
Gwilliam Ivary Chiosso Cavalli & Brewer APC;
Oakland,
CA,
for
Jerald Wolkoff, Sandra R. Wolkoff, Estate of Steven N. Wolkoff ■ Boris E. Efron;
Law Offices of Boris E. Efron;
Portola Valley,
CA,
for
Cindy Burkowski ■ Gail J. Lamchick;
Law Offices of Boris E. Efron;
Portola Valley,
CA,
for
Cindy Burkowski ■ Robert J. Schwartz;
Gwilliam Ivary Chiosso Cavalli & Brewer APC;
Oakland,
CA,
for
Jerald Wolkoff, Sandra R. Wolkoff, Estate of Steven N. Wolkoff ■ Jason B. Friedman;
The Brandi Law Firm;
San Francisco,
CA,
for
Cindy Burkowski

Plaintiff Expert(s):

Dale Dunlap; P.E.; Traffic; San Bernardino,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Mark Shattuck; Ph.D.; Biomechanics of Injury; Woodside,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Carol Hyland; M.A.; Life Care Planning; Lafayette,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Robert Post; Ph.D.; Ergonomics/Human Factors; Granite Bay,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Thomas Sampson; M.D.; Orthopedics; San Francisco,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Maureen Miner; M.D.; Physical Medicine; Gilroy,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman ■ Phillip Allman, III; Ph.D.; Economics; Oakland,
CA called by:
Steven J. Brewer, Thomas J. Brandi, J. Gary Gwilliam, Boris E. Efron, Gail J. Lamchick, Robert J. Schwartz, Jason B. Friedman

Defendant(s):

Pie Ranch, 

Terry Kaiser, 

Shannon Criss, 

Estela Antonio, 

Santiago Nabor, 

County of San Mateo, 

Bound Tree Medical LLC, 

Jeffrey Allen Bluestone, 

American Medical Response West, 

Instrumentation Industries, Inc., 

San Mateo County Fire Protection Services, 

San Mateo County/CDF Fire Department, Station 59, 

State of California, Department of Transportation, 

State of California Department of Parks and Recreation, 

State of California Department of Forestry and Fire Protection

Defense Attorney(s):

Irene B. Moy;
State of California, Department of Transportation – Legal Division;
Oakland,
CA,
for
State of California, Department of Transportation ■ Ankush Agarwal;
State of California, Department of Transportation – Legal Division;
Oakland,
CA,
for
State of California, Department of Transportation ■ Alex F. Pevzner;
State of California, Department of Transportation – Legal Division;
Oakland,
CA,
for
State of California, Department of Transportation ■ None reported;

San Francisco,
CA,
for
Pie Ranch, Terry Kaiser, Shannon Criss, Estela Antonio, Santiago Nabor, County of San Mateo, Bound Tree Medical LLC, Jeffrey Allen Bluestone, American Medical Response West, Instrumentation Industries, Inc., San Mateo County Fire Protection Services, San Mateo County/CDF Fire Department, Station 59, State of California Department of Parks and Recreation, State of California Department of Forestry and Fire Protection

Defendant Expert(s):

Mary Ciddio;
Vocational Rehabilitation;
Oakland,
CA called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner ■ Margo Ogus;
Economics;
Palo Alto,
CA called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner ■ Gordon Levin;
Orthopedic Surgery;
Los Gatos,
CA called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner ■ Thomas Ayres;
Ergonomics/Human Factors;
Kensington,
CA called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner ■ Richard Ryan;
Engineering;
Vancouver,
WA called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner ■ Stephen Fenton;
Accident Reconstruction;
Greenwood Village,
CO called by:
Irene B. Moy, Ankush Agarwal, Alex F. Pevzner

Facts:

At around 4:20 p.m. on June 21, 2008, plaintiff Cindy Burkowski, 29, a gardener and landscape architect student, was driving north on Cabrillo Highway, also known as State Route 1, in San Mateo, with her partner of over 10 years, plaintiffs’ decedent Steven Wolkoff, 30. Cabrillo Highway (SR-1) has one lane in each direction with an occasional passing lane. At the area approaching the Pie Ranch, the road transitioned from two southbound lanes, which included a passing lane, into one southbound lane. Heading in the opposite direct, Jeffrey Bluestone stopped his vehicle approximately 1.6 miles north of Ano Nuevo State Park and waited to make a left turn into a business, the Pie Ranch. At the same, a southbound vehicle driven by Santiago Nabor came upon Bluestone’s stopped vehicle and attempted to pass Bluestone on the right in an area where the road had transitioned into one lane, coming out of the passing transition area. However, as he was attempting to pass, Nabor’s vehicle struck the Bluestone vehicle, causing it to cross the double-yellow line into oncoming traffic. As a result, Nabor struck Burkowski’s northbound vehicle head-on and caused the vehicles following Burkowski to swerve off the road in an attempt to avoid the Nabor-Burkowski collision. Wolkoff and Nabor both died in the collision. Burkowski sustained injuries to her back, chest, elbow, and legs. Wolkoff’s parents sued Nabor; Bluestone; Pie Ranch; the maintainer of the roadway, the State of California, Department of Transportation; and several other entities. Burkowski brought a separate suit against Nabor; Bluestone; Pie Ranch; and the State of California, Department of Transportation (Caltrans). The matters were ultimately consolidated. Prior to trial, on March 24, 2011, the court granted a motion for summary judgment, finding that the design immunity barred the action. However, plaintiffs’ counsel successfully filed an appeal, which was granted on Oct. 29, 2013. The state then brought another motion for summary judgment on the same issue, but this time it was denied. Burkowski ultimately settled before trial with all parties except the state of California. In addition, Wolkoff’s parents settled their claims during Motions in Limine and prior to jury selection. Thus, the matter proceeded to trial with Burkowski’s claims against the state of California only. Burkowski’s counsel contended that the state created the roadway’s dangerous condition by placing the transition area in an intersection, in violation of its long-standing standards, and requiring left-turning vehicles to stop in the only designated lane of travel, while waiting for an opening in northbound traffic, with their back to oncoming cars that just accelerate to pass slower vehicles. Plaintiff’s counsel noted that after the collision, Caltrans installed a left-turn pocket lane, delineated striping to show the passing lane, and placed additional signs for less than $50,000. The state’s counsel argued that the subject area did not constitute a dangerous condition at the time of the crash and that the state had no notice of any prior accidents. Counsel also argued that the collision was solely the fault of Nabor and Bluestone. According to Burkowski’s counsel, the defense’s accident reconstruction expert’s opinions were excluded, as he had significantly changed his opinions post-deposition as to point of impact, point of rest, and other areas. He also interviewed witnesses after his deposition. The expert was allowed to testify as to a survey done by his staff, but during his testimony, he allegedly violated prior orders and his testimony was excluded completely.

Injury:

Burkowski sustained a right lumbar pars fracture at the L5 level, left frontal tissue swelling with presumed hemorrhage, a sternal fracture with lung contusions, rib fractures, a fracture/dislocation of the right clavicle, a left elbow contusion, a severely comminuted fracture of the left distal femur extending into the knee, a communicated fracture of the right femur extending into the knee, and a severely comminuted fracture of the calcaneus extending into the subtalar joints. Burkowski was subsequently airlifted to Stanford Hospital, in Stanford, where she underwent surgeries. Burkowski claimed that she is left with scarring and that she continues to suffer from chronic pain as a result of her injuries. She alleged that as a result, she is unable to walk for more than 15 to 30 minutes, has difficulty climbing stairs, and has pain with sitting for more than 30 minutes. She also alleged that she is unable to squat, kneel, or carry heavy items and that she has limited mobility. Burkowski further claimed that she suffers from depression as a result of her condition. Burkowski contended that as a result of her condition, she is no longer able to work as a landscape architect or gardener, and that she is only able to work part-time in sedentary jobs. She also contended that she will require addition surgery, which could include a likely foot fusion, knee replacements, and additional surgery on her hips and shoulder. The plaintiff’s expert orthopedist testified that Burkowski would not be able to work past the age of 50.

Result:

The jury apportioned 15 percent liability to the state, 0 percent to Burkowski, and 85 percent to the adverse drivers, Nabor and Bluestone. It also determined that Burkowski’s damages totaled $12,344,723. Under Proposition 51, after apportionment, Burkowski should recover 15 percent of the non-economic damages award based on the state’s percentage of fault. However, the state is still responsible for 100 percent of Burkowski’s economic damages. As a result, Burkowski’s recovery would be $5,922,629.

Cindy Burkowski: $5,000,000 Personal Injury: future non-economic damages; $843,685 Personal Injury: past economic damages; $4,001,038 Personal Injury: future economic damages; $2,500,000 Personal Injury: past non-economic damages

Actual Award:

$6,091,133.77

Trial Information:

Judge:

Steven L. Dylina

Demand:

$3,500,000 (C.C.P. § 998)

Offer:

$500,000 (just before jury selection), with an indication of $300,000 during trial

Trial Length:

25
 days

Trial Deliberations:

3
 days

Jury Composition:

9 male/ 3 female

Post Trial:

Defense counsel moved to tax costs, but the motion was denied. As a result, $168,504.77 in costs was added to the judgment, making the total judgment $6,091,133.77. The state is appealing the case.

Editor’s Comment:

This report is based on information that was provided by plaintiffs’ counsel. Defense counsel for the State of California, Department of Transportation did not respond to the reporter’s phone calls. Counsel for the remaining defendants were not asked to contribute.