Case details

Defense claimed roadway fencing not meant to stop deer





Result type

Not present

fracture, hip, leg, shoulder
On May 29, 2010, plaintiff Dean Mermell, 55, a videographer, was operating his motorcycle, with a passenger seated behind him, on southbound Interstate 280 in San Mateo County. When he was near the Trousdale Drive overpass, a Toyota Prius broke hard and turned abruptly to the left, causing it to swerve into Mermell’s lane. As a result, Mermell applied his brake, but could not stop his motorcycle before colliding into the right rear of the Prius. Both Mermell and his passenger were subsequently ejected from the motorcycle, and Mermell suffered serious orthopedic , including fractures to his right leg, left hip and left shoulder. Mermell claimed that shortly before the accident, a deer entered the roadway, causing the Prius to suddenly brake and change lanes in order to avoid the deer. Thus, he claimed that the roadway’s unsafe condition caused the collision. Mermell sued the Department of Transportation of the state of California. He alleged the defendant failed to properly maintain the roadway, creating a dangerous condition. Specifically, he claimed that the fencing along the west side of I-280, between the eight lane freeway and the State Fish and Game Refuge, was not inspected or maintained. Mermell contended that the fencing was falling down, contained huge gaps, was non-existent in some areas, and provided no barrier to the deer that could wander onto I-280. Plaintiff’s counsel contended that there was evidence that Caltrans found approximately 100 dead deer along the section of the roadway that borders the State Fish and Game Refuge each year. Counsel further contended that there was also evidence that accidents cluster in areas where the fencing was not maintained. Caltrans claimed that because of the number of dead deer found along the roadway, the state began a technical study in June 2011 regarding the deer issue. Specifically, it claimed that scientific research was performed regarding connectivity, wildlife movement and habit by tracking wildlife at critical wildlife habitat locations along the I-280 corridor. Caltrans claimed that the result of this study would increase the understanding of wildlife movement associated with the I-280, and would be used to prevent wildlife intrusion and reduce wildlife collisions. However, Caltrans claimed that the roadway fences were not deer fencing at all and that the fences were not placed to prevent deer. Defense counsel contended that the accident was, in reality, a rear-end collision caused by Mermell’s inattention to the conditions of the roadway environment. Counsel argued that had Mermell been more vigilant, as the passenger on the motorcycle alleged was, Mermell would have noticed the “deer” and been able to safely avoid the accident. However, defense counsel argued that Mermell never saw the alleged deer on the roadway at all, while other motorists were disbursing away from the deer. In addition, defense counsel argued that the evidence produced by plaintiff’s counsel was not probative, in that there was no evidence to prove where the deer came from. Counsel further argued that the photographs presented did not prove the deer were coming from the openings in the fence, which were not placed to prevent deer, and that there was no evidence of accident clusters near the site of the subject accident. Thus, defense counsel argued that there was no evidence to prove the “but-for” test and that coming up with that conclusion under these circumstances would take a quantum leap of logic., Mermell shattered his right femur, completely dislocated his left hip, and devastated his left shoulder. He was subsequently taken to Stanford Medical Center via ambulance. Mermell underwent numerous open reduction and internal fixation surgeries on his legs and arm, during which massive amounts of hardware had to be installed and he ultimately received a prosthetic shoulder. On June 9, 2010, 11 days after the accident, Mermell was transferred to California Pacific Medical Center in San Francisco, where he remained hospitalized for intensive therapy until Aug. 20, 2010. Upon release, he engaged in physical therapy in his home for a period of time and then participated in outpatient physical therapy at California Pacific Medical Center until he exhausted his available insurance coverage. In addition, on April 7, 2011, Mermell underwent further surgery to remove a large metal plate that had been placed in his right leg. Mermell claimed that he continues to struggle with the lasting impacts of his . He alleged that he cannot raise his left arm more than 45 degrees or turn his wrist, and that he is in constant pain from the to his shoulder and left hip. Mermell claimed that as a result, he is undergoing acupuncture and myofascial release, a painful physical therapy that focuses on breaking up scar tissue in an attempt to increase mobility and control long-term pain. In addition, Mermell claimed that he has no more health insurance and had to pay for some of his medical expenses out of pocket. He alleged that the cost of his treatments has been substantial and that his medical bills to date total over $1 million. He further claimed that he will require additional treatment and assistance to increase his range of motion and alleviate his pain. As a result of the collision, Mermell was unable to complete pending projects he was working on as a film/video editor and filmmaker. Thus, he alleged that due to the project-based nature of his work, his precise wage loss is unknown, but will also be substantial. Defense counsel acknowledged that Mermell’s were serious, but nevertheless argued that the plaintiff’s life care plan went too far because, at the time of trial, Mermell was taking care of himself. In addition, counsel contended that there were no provisions for psychological well-being, and that Mermell could not recall any doctor who had mentioned his psychological well-being.
Superior Court of San Mateo County, San Mateo, CA

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