Case details

Passenger claimed out-of-control van caused arm fracture




Mediated Settlement

Result type

Not present

arm, bruise, chest, face, fracture, humerus, left arm, leg, legs, nerve, neurological, pain, rib, ribs
On Sept. 29, 2012, plaintiff Dorothea Benney, 88, a retiree, was a passenger in a van operated by Michael Caldwell, an employee of Red Rock Contract Services LLC. On weekends, the company’s vans shuttle residents of Heritage Point, a retirement community in Walnut Creek, to the downtown area and back. At approximately 3:10 p.m., Caldwell was making his last trip of the day back to Heritage Point, shuttling Benney and some other residents, when he stopped at an electronic gate and pressed the remote control to open it. Caldwell then accelerated through the gate and crashed into a retaining wall. Benney, who was not wearing a seat belt, claimed she was thrown to the floor of the van, while her left arm was stuck in the arm rest, causing to her left arm, as well as bruises to her legs, face and ribs. Benney sued Caldwell and Red Rock Contract Services LLC. Benney alleged that Caldwell was negligent in the operation of the van and that Red Rock was vicariously liable for Caldwell’s actions through course and scope. The matter proceeded to mediation. Benney claimed that Caldwell lost control of the van when he accelerated through the gate, causing the van to head straight for the dining room. She alleged that as a result, Caldwell turned right and crashed into a retaining wall. Benney claimed that neither she nor most of the other passengers wore a seat belt because they had never been asked to before. Caldwell did not dispute liability for mediation purposes. However, defense counsel contended that Benney was partially at fault for failing to wear the available restraints., Benney was taken by ambulance to Kaiser Permanente Medical Center in Walnut Creek, where she was diagnosed with a displaced angulated fracture of the lower left humerus, as well as bruises to her legs, face and ribs. The arm was splinted, and Benney was released. She then returned the following day, and was hospitalized for six days for pain control, dehydration and pneumonia. Benney was ultimately placed in a skilled nursing facility for six days and she received physical therapy for her left arm. The plaintiff’s treating orthopedist submitted a report in which he opined that Benney suffers from radial nerve neuropraxia as a result of the fractured humerus. Benney claimed that she continues to suffer from reduced use of her left hand and that she had to resort to using a wheelchair since she is no longer able to handle a walker. She also claimed she suffered a pulmonary embolism as a result of decreased mobility, resulting in three subsequent hospitalizations. Thus, Benney claimed she lost much of her independence in caring for herself and socializing due to her condition. Benney sought recovery of $52,004 in past medical costs and $108,585 in increased assisted living expenses. She also sought recovery of damages for her pain and suffering. Defense counsel did not dispute the causation and extent of Benney’s lingering hand limitations, but asserted that Benney’s reduced independence was not due to the accident. Counsel contended that Benney’s prior medical records demonstrated a clear progression of reduced mobility and a need for assistance before the accident.
Superior Court of Contra Costa County, Martinez, CA

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