Case details

Intoxicated plaintiff climbed on moving vehicle’s roof: defense





Result type

Not present

brain, brain injury, cognition, concussion, depression, head, headaches, impairment, mental, psychological, sensory, speech, traumatic brain injury, vision
On July 30, 2010, plaintiff Marcus Silva, 25, a stocker at Target, was with three underage girls floating in Caswell State Park in Manteca. Silva and two of the girls had consumed 36 cans of beer, while the third girl, Makaella Ferguson, 17, was the designated driver and consumed no alcohol. As Makaella was driving away, Silva climbed onto the roof of the vehicle and subsequently fell off, suffering to his head and brain. Silva sued Makaella and the owner of the vehicle, her mother, Laura Ferguson. He alleged that Makaella was negligent in the operation of the vehicle and that her mother was vicariously liable for her actions. Silva claimed that Makaella knew he was on the roof of the vehicle when she began to drive away. The responding police officer testified that Makaella told him she was trying to scare Silva off the roof of her car, while she was traveling at approximately 30 mph. Silva’s counsel called the responding emergency medical technician, who testified that Makaella initially told him that Silva had fallen out of the door of the vehicle at 10 mph, but later told him that Silva had fallen off the roof at 30 mph. However, Silva claimed that, due to his brain injury, he had no memory of the accident. Makaella alleged that Silva initially got on the roof of the car and asked her to drive so that he could surf on the roof while she drove. She claimed that she and the other two girls told Silva to get off the roof three times and that they would leave him if he didn’t get into the car. Makaella claimed that after Silva got off the roof, he snuck back on as she drove away, and that she had no knowledge he was on the roof at the time. Makaella claimed she did not remember her statements to the EMT. Defense counsel argued that the responding police officer’s report did not include Makaella’s statement that she “tried to scare Silva off the roof of her car,” and, furthermore, that the officer failed to talk to the other two girls to get their statements. Counsel contended that if the officer had questioned the other girls, they would have claimed that Silva was intoxicated and was told to get off the roof several times., Silva sustained a skull fracture and was subsequently taken by ambulance to an emergency room. At the hospital, it was determined that he suffered a moderate-to-severe traumatic brain injury, based upon CT findings and an impaired abnormal Glasgow Coma Scale. Silva also sustained a concussion, and remained in the hospital for several days to monitor the swelling and his brain. Silva suffers from post-concussion syndrome, with symptoms of chronic headaches, dizziness/disequilibrium and memory impairment. His residual also included anosmia, which is the loss of taste and smell, and left vision impairment with possible traumatic optic neuropathy. Silva also claimed he suffers from depression and seeks treatment for his cognitive impairments, which caused him to lose his job at Target and become unemployable. Plaintiff’s counsel contended that Silva’s past medical costs amounted to $223,556.95. Silva also sought recovery of $1,101,386 in damages for his total lost earnings, claiming his prevented his ability to become trained as a HVAC technician. He further sought recovery of unspecified damages for his past and future pain and suffering. Defense counsel did not dispute the severity of Silva’s . However, counsel disputed Silva’s claim for future lost earnings, denying the claim that Silva would have become gainfully employed as a HVAC technician if not for the accident and his .
Superior Court of San Joaquin County, Stockton, CA

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