Sample Case Report

Verdict:	(P) $8,618,859.43
Case Type:	Dangerous Condition, Motor Vehicle - Motorcycle, Premises Liability - Dangerous Condition of Public Property, Motor Vehicle - Single Vehicle, Motor Vehicle - Alcohol Involvement-Plaintiff
Case Name:	Adam Rogers and Kristin Finn v. State of California, No. M74696
Venue:	Superior Court of Monterey County, Monterey, CA
Judge:	Robert A. O'Farrell
Date:	03-27-2009

• Lawrence E. Biegel; Law Offices of Lawrence E. Biegel; Monterey, CA, for Adam Rogers, Kristin Finn
• Charles R. Keller; Fenton &Mp; Keller P.C.; Monterey, CA, for Kristin Finn, Adam Rogers
• Vicki Schermer-Kleinkopf; Law Offices of Lawrence E. Biegel; Monterey, CA, for Kristin Finn, Adam Rogers

• Paul Kayfetz; Photographic Documentation; Bolinas, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  
• Bruce Coblentz; Biology; Corvallis, OR called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
• Karen Aznavoorian; Life Care Planning; Fresno, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  
• Judy Stewart; Toxicology; Hayward, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
• Thomas Ayres Ph.D.; Ergonomics/Human Factors; Kensington, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  
• Deborah Doherty M.D.; Physical Rehabilitation; Kentfield, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  
• William Blythe Ph.D.; Accident Reconstruction; Palo Alto, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  
• Kenneth Zeidman; Ergonomics/Human Factors; Pt. Reyes Station, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
• Patrick Mason Ph.D.; Economics; San Francisco, CA called by: Lawrence Biegel, Charles Keller, Vicki Schermer-Kleinkopf
  
  

• Belvin K. Smith; State of California; San Francisco, CA, for State of California
• Kamau A. Edwards; Law Offices of Kamau A. Edwards; Oakland, CA, for State of California

• J. Stephenson; Accident Investigation & Reconstruction/ Failure Analysis/Product Liability; Bellingham, WA called by: Belvin Smith, Kamau Edwards
  
  
• Reginald Barrett Ph.D.; Biology; Berkeley, CA called by: Kamau Edwards, Belvin Smith
• William Neale; Animation/Computer Animation; Denver, CO called by: Belvin Smith, Kamau Edwards
  
  
• Stephen Fenton P.E.; Accident Reconstruction; Englewood, CO called by: Belvin Smith, Kamau Edwards
  
  
• Ed Ruzak; Traffic Accident Analysis; Fountain Valley, CA called by: Belvin Smith, Kamau Edwards
  
  
• Nachman Brautbar M.D.; Toxicology; Los Angeles, CA called by: Belvin Smith, Kamau Edwards
  
  

On Sept. 23, 2003, plaintiff Adam Rogers, 40, the owner of a martial arts studio and a former kickboxing champion, was riding a motorcycle northbound on California State Route 1, just south of the Carmel River. His motorcycle collided with one of six wild boars lying dead or dying on the roadway.

Rogers sued the state of California, alleging that Rte. 1 for a one-half mile distance south of the Carmel River Bridge in Monterey County was a dangerous condition for as many as three years prior to the accident and two years after the accident.

Rogers claimed that the California Department of Transportation owned and controlled the roadway and was responsible for its maintenance; that Caltrans entered into an agreement with the California Department of Parks and Recreation to utilize 43 acres of land as a "mitigation bank" in order to gain credits for any negative environmental effects future projects in the area would create. (The 43-acre parcel lay just to the west of Rte. 1, adjacent to the roadway.)

For two years, beginning in 1998, Caltrans's subcontractors reportedly planted more than 17,000 willow trees and brought in irrigation at the rate of more than 1,200 gallons per hour, watering the plants up to 12 hours per day.

Rogers claimed that, in spring 2000, when the mitigation bank began to thrive, wild boars began crossing the roadway in droves to get to the new food and water source. Some of the animals crossed under a bridge abutment and thus did not create a hazard to the traveling public. Others, generally crossing at night, traveled over the asphalt surface of the roadway. Because of their dark color and the fact that their eyes do not easily reflect light, many were hit and killed or injured by passing motorists.

Rogers claimed that Caltrans and State Park employees began seeing the wild boar carcasses on the highway in the mornings when they reported for work. They began discussing the dangers such crossings posed to the motoring public. However, Caltrans supervising engineers ignored warnings from employees at the mitigation bank to the effect that "someone would be killed or seriously injured unless a fence was built on the east side of Rte. 1 to impede their crossings," according to plaintiffs' counsel.

Rogers claimed that the state did make "some effort" to staunch the flow of boars into the area by employing a U.S. Department of Agriculture "depredator" to cage and/or shoot the animals, but only after they had crossed Rte. 1 to the west side. The depredator informed Caltrans and State Parks that he could not kill enough boars because of their reproduction rate and recommended a fence to prevent them from crossing the roadway. Reportedly, that recommendation was not adopted.

Plaintiffs' counsel produced evidence of many incidents in which motorists collided with boars after dark, and in each incident the witnesses testified that the accident was unavoidable as he or she could not see the animals prior to impact.

Plaintiffs' counsel produced a nighttime visibility study showing that someone traveling at or below the speed limit would not have been able to avoid collision.

The state denied that the roadway was dangerous, primarily relying on the fact that the subject accident was the only bodily injury accident which had occurred on the subject stretch of roadway between 2000 and 2009.

The state denied actual notice of the dangerous condition as no computer data had been produced to suggest that the roadway had a higher accident rate than others similarly situated in the state.

The state contended that the failure to take sufficient action to correct the condition was reasonable under the circumstances.

Finally, the state claimed that Rogers was impaired, as a test taken during life-saving treatment at a local hospital showed a level equal to .09 percent blood alcohol level.

Rogers sustained massive head injuries and was in a coma for about five months. He is paralyzed and wheelchair-bound for life. He requires around-the-clock care and won't walk again. He also has memory gaps.

His wife, plaintiff Kristin Finn, sought damages for loss of consortium.

The jury found that the property was a dangerous condition, that the dangerous condition created a reasonably foreseeable risk, that the state had notice, that the state was not acting reasonably in failing to take sufficient steps to protect against the risk of injury, and that the dangerous condition was a substantial factor in causing harm to Rogers.

The jury awarded $8,618,859.43.

Kristin Finn

$500,000 Personal Injury: loss of consortium

Adam Rogers

$250,000 Personal Injury: Past Pain And Suffering

$250,000 Personal Injury: Future Pain And Suffering

$1,343,488 Personal Injury: past economic

$6,275,372 Personal Injury: future economic

The plaintiffs were preparing a judgment on special verdict and a cost bill of roughly $100,000 at press time.

This report is based on information that was provided by plaintiffs' counsel. Defense counsel did not respond to the reporter's phone calls.