Case details

Child struck by vehicle in road, driver claimed not to see him





Result type

Not present

brain, brain damage, brain injury, emotional distress, fracture, leg, mental, psychological, subdural hematoma
On Sept. 3, 2008, plaintiff Stanley Wang, 6, was injured in an accident in a parking lot in Fremont. The accident occurred when Mark Wang, Stanley’s father, was driving Stanley and his daughter, plaintiff Qian “Shirley” Wang, 15, to a Cub Scout meeting. The family was reportedly running late, due to arriving at the wrong place for the meeting, and upon arriving to the right place, a local park on Gable Street, Wang parallel parked the family’s van on the street. Stanley then opened the sliding doors to the van and quickly exited the vehicle. Despite warnings from his father to stop and wait, Stanley ran into the street, ducking under an attempt by his sister to keep him on the sidewalk of Gable Street. He then ran around the front of the van and into the street, where he was struck by an oncoming vehicle and propelled an estimated 30 feet. Stanley sustained to his head and left leg. Mark Wang and his children, Stanley and Shirley, sued the driver of the vehicle, Lori Watts, for negligence in the operation of her vehicle. The driver of the vehicle ultimately agreed to settle by tendering the full policy limits of her 15/30 automobile insurance policy. As a result, Stanley received $15,000, Wang received $14,000, and Shirley received $1,000. Wang and his children then sought further recovery via the supplementary-underinsured-motorist provision of Wang’s own insurance policy, which was administered by Allstate Indemnity Co. Plaintiffs’ counsel contended that there was at minimum 50 percent comparative negligence on the part of the driver because she should have been aware of Stanley on the sidewalk while she was driving on Gable Street. Counsel further contended that as a resident of the area and a mother herself, the driver must have known that children would be present on the sidewalk and that extra caution should have been exercised while driving through the area. The plaintiff’s accident reconstruction expert testified that the driver’s vehicle was traveling approximately 5 to 7 mph the posted speed limit of 25 mph. Allstate’s counsel contended that the driver did absolutely nothing wrong and noted that the driver testified in a deposition that her vehicle was traveling at or below the posted speed limit of 25 mph. The driver also testified that she had no time to react, as Stanley had appeared very quickly from being obscured by Wang’s vehicle. The driver further testified that she braked and swerved upon seeing Stanley in an attempt to avoid an accident, but was unable to do so. The defense’s accident reconstruction expert testified that there were insufficient facts regarding speed, time and distance to be able to reconstruct the movements of the accident due to Stanley’s quick appearance on the road. The expert also opined that the accident was completely Stanley’s fault, stating that it was an example of a “classic dart-out” by a child., Following the collision, Stanley was transported by ambulance to Lucile Packard Children’s Hospital in Palo Alto. He was diagnosed as having sustained polytrauma, including open fractures to his tibia and fibula, and a left-sided subdural hematoma. Two CT scans were performed and Stanley was placed on life support for approximately two days before he was well enough to be taken off of it. An external fixation procedure was performed on Stanley’s fractured tibia. On Nov. 4, 2008, a second surgery was performed to remove the external fixator and a debridement of the skin surrounding the site of the surgery was performed. As a result of the accident, Stanley exhibited symptoms of a mild traumatic brain injury. Plaintiffs’ counsel contended that the accident caused an exacerbation of Stanley’s pre-existing attention deficit-hyperactivity disorder. Stanley’s medical bills totaled approximately $245,000. However, in arbitration, medical specials were limited to $67,000 due to the “Howell v. Hamilton Meats and Provisions Inc.” Supreme Court ruling, (2011) 52 Cal.4th 541, limiting the amount a plaintiff can recover for medical bills to the amount paid by the insurer to the hospital. Stanley also sought a recovery of $200,000 in general damages. Wang and Shirley each claimed negligent infliction of emotional distress, but their damages were paid in the settlement with the driver. Allstate’s counsel requested a defense decision, and argued that there should be no net recovery for Stanley because the third-party driver was not negligent.
Judicate West, CA

Recommended Experts


Get a FREE consultation for your case