Case details

Alleged road defects did not cause motorcycle crash: defense





Result type

Not present

arm, dislocation, fracture, humerus, left, non-dominant shoulder., shoulder
On April 8, 2012, plaintiff Katherine Whitmire, 21, collegiate rower and part-time hostess, was riding her Kawasaki Ninja motorcycle along with three other motorcyclist friends on Highway 242 in Concord. Whitmire claimed that as she crossed from the middle (#2) lane to the fast (#1) lane, she encountered a pothole and a height differential between the lanes. She claimed that these defects caused her motorcycle to go into a tank-slapper (e.g., where the handlebars rotate from one side of the tank to the other), or a quick oscillation of primarily just the steerable wheel(s) of the motorcycle. As a result, Whitmire was unable to control the motorcycle and was eventually thrown over the handlebars. She then rolled several times and slid for some distance. Whitmire eventually came to a stop in the live lanes of traffic, got up and ran across the freeway to the shoulder. She sustained severe to her left, non-dominant shoulder. Whitmire sued the California Department of Transportation for dangerous condition of public property due to the condition of the roadway. Whitmire claimed that the pothole and differential caused her motorcycle to go out of control. She contended that Caltrans failed to repair and/or maintain the highway and that Caltrans had notice of the condition, as its maintenance personnel was supposed to drive the highway on a regular basis to look for defects. The plaintiff’s pavement expert opined that, based on Caltrans’ Maintenance Manual, the roadway defects should have been uncovered and repaired well before the accident. The plaintiff’s accident reconstruction and motorcycle safety expert opined that the differential and pothole were dangerous and that they posed an obvious tripping hazard for motorcyclists, as motorcyclists would not be able to see the condition until it was too late. In addition, the plaintiff’s visual expert conducted a laser scan of the highway to note the dimension of the pothole and differential. The plaintiff’s pavement expert opined that given the dimensions of the pothole and differential shown by the laser scan, Caltrans was required to repair the subject area because its own Maintenance Manual specifically says so. Defense counsel contended that the Caltrans’ maintenance supervisor had previously observed the pothole/differential, but that based on his 25 years of training and experience, the maintenance supervisor determined that the area did not pose a risk to the traveling public and that repair work did not need to be performed. The supervisor also testified that he had received no complaints about the roadway from either the public or law enforcement. The defense’s expert traffic engineer testified that there were no accidents involving motorcycles, or were pavement-related, at the subject location even though the roadway has an extremely high volume of motorists, with over 73 million vehicles traveling that stretch of roadway over a little more than four years before the accident, making the crash rate per million vehicle-miles at the subject location 0.57. The defense’s visual expert performed a three-dimensional forensic laser scan and model of the spall and differential, and demonstrated that a motorcycle tire could never come close to getting to the bottom of the pothole because the opening was too narrow to fit a tire. The defense’s accident reconstruction expert showed, through a basic speed/distance calculation, that even if the jury accepted the plaintiff’s in-court testimony of riding at 65-70 mph, Whitmire would have only been in contact with the pothole/differential for 1/200th of a second — noting that a humming bird could not have dropped its wings once in the amount of time it would have taken Whitmire to go over the subject area four times and that Whitmire only went over it once. Thus, the accident reconstructionist opined that this amount of time, along with the dimensions of the defects, would have been insufficient to transfer enough force to the motorcycle to cause it to go into a “tank slapper”/lose control., Whitmire sustained a displaced, comminuted fracture of the left humeral head and neck, as well as a dislocation of her left, non-dominant shoulder. She also claimed that the subscapularis muscle of her left shoulder area was torn in the accident. She was subsequently taken to a hospital, where she underwent surgical repair the next day. Whitmire remained in the hospital for a total of 4 or 5 days, during which a stabilizing plate and screws were implanted. She then treated with physical therapy for a while, which included stretching. Whitmire claimed she is left with an unsightly scar on the left shoulder. She also claimed that the muscles in her shoulder would catch and pull on the inserted plate/hardware whenever she would raise her hand above her shoulder. Whitmire also claimed that she suffers frequent pain, preventing her from sleeping on her left side, and that if she has to lift anything above a couple pounds, she experiences a sharp jab of pain in her left shoulder. Whitmire alleged that she used to be a portside rower for California State University, Sacramento’s rowing team, but that she can no longer engage in the activity. She also claimed that she cannot work out or be as physically active. After Whitmire returned for a check-up months after the accident, the physician that performed the surgery indicated that if Whitmire continued to be bothered by the plate/hardware, she could have a surgery to remove the plate. Defense counsel noted that Whitmire continues to ride her motorcycle.
Superior Court of Contra Costa County, Contra Costa, CA

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