Case details

Plaintiff claimed defendant swerved into his lane of travel





Result type

Not present

annular tear, back, herniated disc, lower back, neck
On May 10, 2011, plaintiff Jack Livermore, 58, a handyman/general contractor, was operating his 2003 Dodge Ram pickup truck at 48 mph in the right (slow) lane on his way home to Boulder Creek when a 2004 Volvo operated by Peter Dunhaver, who was traveling in the adjacent left (fast) lane on his way to Livermore, suddenly swerved into Livermore’s lane. As a result, Dunhaver collided with the driver’s side of Livermore’s pickup truck, causing it to veer off the right shoulder of the roadway, through a guardrail and into a grove of trees, where the truck turned over onto the driver’s side. Livermore injured his back, as well as sustained multiple other soft-tissue . Livermore sued Dunhaver for motor vehicle negligence. Livermore claimed that Dunhaver was inattentive and following the vehicle in front of him too closely. He claimed that as a result, Dunhaver had to swerve into his lane of travel, after the vehicle in front of Dunhaver stopped suddenly. Thus, Livermore contended that Dunhaver was solely to blame for the collision. Dunhaver testified in deposition that he was only four to 10 feet behind the vehicle in front of him when it began braking. He claimed that the pickup truck in front of his vehicle suddenly braked for a vehicle making a left turn across the highway from Glenwood Drive onto northbound Highway 17, and that he feared he would be unable to stop in time to avoid a rear-end collision, so he swerved into Livermore’s lane. However, Dunhaver admitted that he did not have time to check whether there where vehicles in the adjoining lane before swerving and that he did not use his turn indicator. Dunhaver alleged that the unknown driver of the vehicle making the left turn across the roadway was at fault for failing to yield to oncoming traffic and that Livermore was at fault for failing to avoid the accident. The defense’s biomechanical expert opined that Dunhaver’s estimate of driving four to 10 feet behind the pickup truck when it began braking was mistaken, given the normal perception-reaction time and the speed of Dunhaver’s vehicle. The expert testified that Dunhaver had to be traveling at least 75 to 150 feet behind the pickup truck in order to allow Dunhaver sufficient time to take evasive action and turn into the right lane. Livermore’s counsel moved for a directed verdict on Dunhaver’s comparative fault claim, and it was granted. Thus, the court found that Livermore was not comparatively at fault for the accident. The court also denied Dunhaver’s request to instruct the jury on the doctrine of “imminent peril,” which provides that a person suddenly confronted with an unexpected, imminent danger that is not a product of the person’s negligence is not required to exercise the same amount of care as one who acts after careful deliberation., As a result of the accident, Livermore sustained multiple soft-tissue , including a lumbar disc herniation and annular tear at the L4-5 level. He also claimed that the subject accident aggravated his lower back at the location of two prior surgeries, which were performed 1992 and 2004. Livermore subsequently sought medical treatment, including chiropractic care, physical therapy, pain management, and a surgical consultation with an orthopedic surgeon. He also underwent an epidural injection in his lower back. The plaintiff’s pain management expert testified that Livermore’s lumbar herniation and annular tear were caused by the accident, that his medical care and treatment were reasonable and necessary, and that he would continue to suffer intermittent lower back and lower extremity pain over his lifetime as a result of his back . The expert also confirmed that Livermore had undergone two prior lower back surgeries. The expert further testified that Livermore was not a candidate for any future surgery and that the plaintiff had returned to his pre-accident level by the end of 2011. The plaintiff’s forensic accounting expert opined that Livermore’s loss of income during the four months that followed the accident was in excess of $35,000. Thus, Livermore sought recovery of damages for his medical expenses and lost income, and recovery of non-economic damages for his past and future pain and suffering and emotional distress. In addition, Livermore sought recovery of damages for the replacement of the tools that he was carrying in his truck that were destroyed in the accident. Defense counsel did not dispute the nature and extent of Livermore’s medical treatment or bills. However, the defense’s forensic accounting expert indicated that Livermore’s loss of income was no more than $10,000 and that Livermore’s tax returns were inconsistent with his loss of income claim.
Superior Court of Santa Cruz County, Santa Cruz, CA

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