Fresno County Superior Court
Cline v. Kandarian Farms, Docket Number: 08CECG04099 DRF
Verdict: The trial lasted three and one half weeks before the Honorable Judge Donald R. Franson. The jury deliberated for approximately six hours and found in favor of plaintiff in the sum of $785,196.76, plus cost of suit. The jury found that Kandarian Farms owned the land where the incident occurred (12-0). They found that Kandarian Farms was negligent (10-2). That Kandarian Farm=s negligence was a substantial factor in causing the harm (10-2) and that plaintiff, Michael Cline was not negligent(12-0). The jury determined plaintiff=s damages as follows:
- Past economic loss of lost earnings: $111,996.00
- Past economic loss of medical expenses: $158,919.26
- Future economic loss of lost earning capacity: $156,618.50
- Future economic loss of medical expenses: $107,663.00
- Past noneconomic loss of pain and suffering: $100,000.00
- Future noneconomic loss of pain and suffering: $150,000.00
TOTAL DAMAGES: $ 785,196.76
Plaintiff: Timothy W. Mazzela, Attorney at Law.
Defendant: Theodore W. Hoppe, Hoppe Law Group.
Defendant, KANDARIAN FARMS owns and operates a 40- acre parcel of farmland consisting of table grapes and citrus crops located at Huntsmen and Fowler Avenue in Selma, California. The property was purchased in 1974 by defendant, Chic Kandarian and has been farmed since that time as Kandarian Farms. The 550 gallon gravity feed diesel fuel tank had been installed before Chic Kandarian purchased the farm from his father. The gravity feed fuel tank consisted of a metal stand that was supported by two 3″ x 6″ boards under the four metal struts that supported the weight of the tank. The boards were placed on a dirt foundation and the fuel tank stand located next to the barn. There were no rain gutters on the barn to prevent erosion of the dirt that supported the boards. At the time of the incident, there was two-to-three inches of erosion underneath the corner of the board which allowed the board to bend under load as the tank was being filled by plaintiff, MICHAEL CLINE. The board bent past the critical angle of 16 degrees causing the front strut of the stand to slide off the board. The critical angle is the angle when the strut overcomes the co-efficient of friction allowing the strut to slide off the board. This foundational failure caused the metal stand to collapse into the dirt foundation falling onto plaintiff, MICHAEL CLINE causing severe injuries. The stand collapsed 20 minutes into the process as plaintiff was filling the tank.
Following the incident, the responding sheriff officer took four photographs of the scene, that documented the location of the truck, the barn, the collapsed metal stand and the tank itself in their respective points of rest after the stand collapsed. These sheriff photographs were then used by Rene Castañeda in conjunction with photographs taken by Mr. Castañeda and were downloaded into the Photomodelor computer program. The Photomodelor program is a program that aligns the common points of an object within the sheriff photographs to common points in the photographs taken by Mr. Castañeda. The common points of reference are marked by dots in the photographs taken by Mr. Castañeda. The dots are strategically placed at precise locations on the object to create the points of reference in order for the program to align the common points between the sheriff photographs and Mr.Castañeda=s photographs. Once the program identifies the common points within the photographs, the photographs can be precisely aligned and an interactive three dimensional environment can then be created in AutoCAD with the data from the Photomodelor program. The Photomodelor program was used to create the three dimensional image of the truck, the tank stand and the barn and their location in relation to each other within the three dimensional environment. The Photomodelor program will not allow the project to be entered into the program unless the photographs meet the scientific precision of the program or the data will be rejected and the photographs will not be useable. Light rays from varying locations, heights and angles confirm the accuracy of alignment between the photographs. Defense counsel attempted to exclude the use of AutoCAD simulations in a 402 hearing using the testimony of defendant=s expert David Howitt, Ph.D. After the 402 hearing, the simulations were shown to the jury and admitted into evidence. Mr. Castañeda=s opinions and testimony covered extensive scientific and simulation technology. The AutoCAD simulations were used to effectively disprove the defense theories that plaintiff struck the tank stand with the truck=s passenger side mirror prior to the plaintiff filling the fuel tank and that weakened the stand and caused the stand to fail. Additionally, the extensive enlarged exhibits were used to prove the plaintiff=s theory on how and why the foundation of the stand collapsed; two to three inches of erosion under the front board and the dilapidated condition of the board after thirty plus years of no inspections or maintenance. The use of Photogrammetry analysis through Photomodelor and the use of AutoCAD were very persuasive in this highly disputed liability case. It was very effective in disproving defendant=s expert Dr. David Howitt=s opinions that Mr. Cline struck the stand with the truck and that the contact weakened and changed the geometry of the stand causing its failure.
Additionally, after the subject incident, mechanical engineers from both parties inspected, photographed and documented the scene within two weeks of the incident. Mechanical engineer, René Castañeda of Castañeda Engineering for plaintiff and Steven Harper of J2 Engineering for the defendant. After the initial inspection, Kandarian Farms had the stand removed from the site, taken apart and the stand was then rebuilt by Steven Harper from J2 Engineering for recreation purposes. The Kandarians testified that it took approximately 20 minutes to take the stand apart and another 20 minutes to put the stand back together with a forklift after it was rebuilt. The dirt foundation was scraped and then compacted where the stand was originally located before the incident. The tank stand was then placed in the pre-incident location after it was rebuilt. J2 Engineering then attempted to pull the tank stand over with 750 pounds of force to prove that plaintiff pulled the tank and stand off its foundation with the mechanical fuel hose reel located on the fuel truck. The tank did not collapse or fall over during the recreation by J2 Engineering. J2 Engineering then generated a written report that concluded plaintiff did not contribute to the collapse of the stand by pulling the stand over with the mechanical hose reel on his fuel truck. Steven Harper concluded that possible explanation for the failure included looseness of the bolted connections or soil settling. However, at trial, the recreation by J2 Engineering was affirmatively used by the defense to argue that plaintiff must have hit the stand with his truck to weaken the structure because even attempting to pull the stand over with 750 pounds of force did not move or cause the stand to fail. Plaintiff countered that argument with the fact that the boards were no longer diesel soaked and the dirt foundation had been scraped and compacted with a tractor that provided support for the warped board. Therefore, the critical angle of 16 degrees was not reached and the board did not bow to the critical angle necessary for the strut to slide off the board causing the stand to fail.
A second inspection by plaintiff=s expert, René Castañeda revealed a significant bow in the front board that was not discovered until the second site inspection. Significantly, the front board that failed under loading conditions in the subject incident, demonstrated a 1″ and 5/32″ downward bow in the board where it failed and the strut slid off the board. The bow in the board was present before the rebuilt stand was loaded with fuel. Therefore, the bow in the board coupled with the initial 12 degree angle of the strut, put the tank stand at an angle of 13 to 14 degrees, on the date of the incident, when the tank was empty. When the tank was being filled with fuel by plaintiff, the critical angle of 16 degrees occurred, which caused the strut to slide off the board and the stand to collapse and fall onto plaintiff. Defense counsel argued that there was no evidence that the board was warped or that the foundation had eroded two to three inches in the location next to the barn where the plaintiff=s expert testified the foundation failed. In the rebuttal phase of closing argument, plaintiff=s counsel focused the jury on Plaintiff=s Exhibit 202 which depicted the two to three inches of erosion in the precise area where Mr. Castañeda opined the foundation failed. Without the dirt foundation to support the board, the angle of the strut exceeded the critical angle of 16 degrees and the stand collapsed while being filled.
Tactically, the defendant expected plaintiff to claim that the condition was open and obvious to prove actual notice. This is based upon the enlarged Jury Instruction concerning open and obvious conditions brought to closing argument by defense counsel. Plaintiff avoided the actual notice argument to prevent comparative fault as a common factual finding based upon the open and obvious condition. Plaintiff focused the jury on constructive notice as the basis to impose liability. This removed the argument to impose comparative fault on the plaintiff because the plaintiff did not concede or argue the condition was open and obvious in closing argument. Toward this end, the board marked as Plaintiff=s Exhibit 229 was used throughout trial to keep the jury engaged and give them something tangible to see why they should find Kandarian Farms was negligent in the maintenance of the fuel tank stand. The top area of Exhibit 229 showed the corner missing from the location where the strut slid off the board when it failed, and the warped deteriorated condition underneath the board and on its sides was buried and hidden. Furthermore, the corner on the lead edge of the bottom of the support board was missing and rounded in the location where the dirt foundation ultimately failed and the board twisted. These conditions of the board were hidden by the soil and would have been discovered had it been inspected by Kandarian Farms. The hidden deteriorated condition of the board and the erosion under the board where it was warped would have been discovered with a simple 20-minute inspection. For the defendants to take 20 minutes of time to do an inspection is a small burden given the gravity of the danger presented by this unsafe condition and the high likelihood that plaintiff would come into contact with the unsafe condition and be severely injured when it failed. The board and foundation had not been maintained or inspected in over 30 years and the defendants testified that they had no plan to inspect the dirt foundation under the boards . The erosion that would have been discovered if a reasonable inspection and maintenance was conducted. The erosion was directly below the board next to the barn where the front strut slid off the board. The jury found the defendants negligent for failing to inspect for unsafe conditions that were discoverable and defendants failure to remedy the unsafe condition.
Plaintiff sustained a broken neck, broken clavicle, broken ribs and a very mild traumatic brain injury. Plaintiff underwent a cervical fusion and discectomy approximately one year after the incident and continued to be symptomatic. Plaintiff will not be able to return to work and has a complete loss of earning capacity. The jury awarded all of the plaintiff=s medical bills, his past wage loss and future loss of earning capacity to age 65. Future medical bills were awarded in the sum requested. Plaintiff is able to walk without assistance although he uses a cane for balance and safety issues. Defense counsel got the plaintiff to testify that he always used a cane to walk since the incident. Sub Rosa video footage was then played for the jury that showed the plaintiff walking without a cane and turning abruptly and quickly just ten months following the incident. There were other points of impeachment against the plaintiff that were overridden by the obvious nature of the injury producing event. Currently, plaintiff=s headaches are controlled with medication and the scarring on his face is minimal. Neck pain is minimal and his numbness and tingling in his arms and hands are minor to moderate. His quality of life continues to be compromised in very subtle and difficult to identify manners.
At mediation, the defendants offered $50,000.00 with an indication of a little additional authority. Plaintiff countered with a CCP section 998 offer in the sum of $2,000,000.00 after the mediation concluded. At the trial readiness hearing, defendants increased the offer to $500,000.00. The verdict was for $785,196.76 plus cost of suit. A JNOV was filed by defendants based upon the Privette and Toland line of case and on notice issues. Defendants settled the matter post-judgment for the sum of $800,000.00.
Plaintiff=s expert witnesses were René Castañeda, Licensed Mechanical Engineer, John Edwards, M.D., Board Certified Physical Medicine and Rehabilitation, Eric Van Ostrand, Board Certified Neurologist, Alan Stark, Ph.D, Audiologist, Ali Najafi, M.D., Neurosurgeon, Andrew Shores, Ph.D., Chemistry, Rick Sarkisian, Ph.D., Vocational Rehabilitation and Jennie McNulty, Forensic Economist.
Defendant=s expert witnesses were Steven Harper, J2 Engineering, Licensed Mechanical Engineer, David Howitt, Ph.D., Metallurgy/Accident Reconstruction/Tire Track Identification, Thomas Hoyt, M.D., Neurosurgeon, Dr. Michael Brandt-Zawadski, Neuroradiologist, Randall Epperson, Ph.D., Neuropsychologist, Steven Kabootian, Ph.D. Vocation Rehabilitation, Stephanie Rizzardi-Pearson, Ph.D. Forensic Economist.
Disclaimer: The above results do not constitute a guarantee or prediction on the outcome of your case. The circumstances and facts of each case is unique and personal. Therefore, each case must be evaluated by an experienced personal injury attorney to determine the value of your particular case.