Case details

Property owner not to blame for crash into escaped cow: defense





Result type

Not present

back, herniated disc, lower back, neck
At around 9 p.m. on July 8, 2012, plaintiff Nicholas Rocha, an unemployed 28 year old, was driving a 2003 GMC Yukon with plaintiff Daniel Branin, 25, a construction worker, as a front seat passenger. As they were traveling on southbound Price Canyon Road, in San Luis Obispo County, a cow owned by Bill Mello entered Price Canyon Road through an open gate. As a result, Rocha struck the cow. Rocha’s vehicle came to stop after the collision and the cow died from the impact. In addition, Rocha allegedly sustained to his neck, back and left knee, and Branin allegedly sustained to his neck. Rocha and Branin sued the owner of the cow, Bill Mello, alleging that Mello failed to properly maintain his property and was negligent in his control of the cow. Plaintiffs’ counsel argued that Mello was negligent for allowing the cow to escape. Specifically, counsel contended that Mello was away on the weekend of the incident and that had Mello been there, he would have seen that the gate was opened. Counsel also contended that Mello should have been checking on his livestock more often. The plaintiffs’ livestock expert opined that the gate and inspection system used by Mello were deficient. The expert also opined that Mello could have used a different gate, such as one that included a grate or one that was self-closing. Mello claimed that he checked on his livestock often and that he did not negligently use or maintain the premises where the cow was kept for grazing. Defense counsel noted that Mello leased the property where the cow was kept for grazing and that Mello allowed local contractor, Souza Construction, to use a portion of the premises as a staging area for a nearby construction project. Thus, counsel argued that it did not matter if Mello was away that weekend or not, as there was no way to prove who left the gate open. The defense’s livestock expert opined that Mello’s inspection system was within the standard., After the accident, Rocha and Branin both presented to a hospital. One of the plaintiffs’ treating orthopedic surgeons, Dr. Alan Moelleken, and his facility then provided ongoing treatment to both Rocha and Branin. Rocha claimed he sustained a herniated lumbar disc in his lower back at the L3-4 level and a cartilage tear of his left knee. He also claimed neck pain. Prior to the subject accident, Moelleken’s office treated Rocha for associated with a 2011 motor vehicle accident. While Rocha had ongoing symptoms from the prior accident, he claimed the 2012 collision exacerbated his neck and back pain. Moelleken’s medical report on Rocha was presented at trial, which showed that Rocha had seen Moelleken with complaints of increasing lower back pain and neck pain two weeks before the subject accident and that Rocha requested a refill of Norco, which is comprised of acetaminophen and hydrocodone and is used to relieve moderate to severe pain. Moelleken refilled the Norco, as he had done for over a year, and then primarily treated Rocha, post-accident, with conservative physical therapy and chiropractic care. He last saw Rocha on Dec.17, 2012, at which time Moelleken reviewed an MRI scan and diagnosed Rocha with a herniated lumbar disc at the L3-4 level. Thus, Moelleken testified in deposition that Rocha will require a microlumbar decompressive surgery in the future at a cost of approximately $80,000 as a result of the subject accident. In August 2012, Rocha began seeing his other treating orthopedic surgery expert, Dr. Michael Price, solely for his knee injury. Price opined that Rocha suffered a severe injury to the left knee, resulting in torn cartilage, as a result of the subject accident. As a result, Rocha saw Price on an almost monthly basis between August 2012 and November 2014, and Rocha ultimately underwent surgery on his left knee. After November 2014, Rocha did not see Price again until Jan. 13, 2017, when Rocha came in for a “sit-down” update on the status of his recovery and to discuss what it would cost for his future care. Price opined that Rocha’s knee injury was caused by the subject accident and that Rocha’s surgical intervention was reasonable and necessary. He also opined that the knee injury contributed to Rocha’s subsequent and continued pain. Price further opined that the left knee injury delayed Rocha’s recovery with respect to his back injury. Specifically, Price testified that Rocha’s limping and shifting of weight from his left to his right impacted his spinal injury recovery and contributed to his lumbar spine pain. In addition, Price opined that Rocha will continue to have pain in his left knee and that in order to relieve his pain, Rocha will require a total knee replacement within 10 to 15 years. Price testified that there were no alternatives to the total knee replacement and that Rocha’s future medical costs — which would include the cost of the future replacement surgery, the facility fee, and the costs of medications and rehabilitation — would reasonably total about $80,000. Despite his alleged and being unemployed at the time of the accident, Rocha now works as a stitch operator in clothing. Branin claimed he sustained a herniated cervical disc at the C5-6 level. He subsequently began treatment with his treating orthopedic surgeon, Moelleken, following the subject accident. Branin’s primary complaints were associated with neck and lower back pain, for which Branin was provided with injections to his neck and conservative therapies. Moelleken diagnosed the cervical disc herniation at C5-6 and ultimately performed the artificial disc replacement surgery on March 11, 2014, which was allegedly unsuccessful. According to this Moelleken, Branin had a slow recovery from the surgery and that he last saw Branin on Jan. 9, 2017, at which time Branin’s neck pain and related symptoms were much improved. However, Moelleken believed that Branin will require annual cervical injections at a cost of $15,000, plus pain management and possible physical therapy to treat flare-ups. He also believed that Branin will, at some point, require a cervical fusion at C5-6 with estimated costs in the amount of $85,000. Defense counsel contended that Moelleken admitted during his deposition that much of the treatment that Rocha required was due to the prior motor vehicle accident and that only two-thirds of Rocha’s treatment should be attributable to the subject accident.
Superior Court of San Luis Obispo County, San Luis Obispo, CA

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