News & Insights

Recent Posts

WSHB Partner Janice Michaels Named to The Best Lawyers in America© 2020 List

One Bad Apple: Navigating through Sexual Battery and other Intentional Torts

Leading Construction Litigator Cynthia Tari Joins WSHB's Dallas Office

WSHB’s Philadelphia Partner Secures Summary Judgment in Catastrophic Premises Liability Matter

WSHB Welcomes New Partner Andrew Kessler

New Bill In New York Proposed for Signature by Governor Andrew Cuomo is Set To Make Employers "SWEAT"

Renowned Litigator Jason Williams Joins WSHB's Nevada Office

Litigator Richard Young Joins WSHB's Nevada Office

Published Appellate Opinion Upholding Summary Judgment in Favor of Commercial Tenant Against $3.5M Subrogation Suit

17 WSHB Lawyers Honored as 2019's Rising Stars

Arizona Supreme Court Allows Court of Appeals Decision Expanding Defendants' Ability to Enforce Settlements to Stand

WSHB’s Jason Klein Breaks Down the Good, the Sad and the Funny Sides of Claims

Litigating Sexual Battery and Other Intentional Torts: Navigating the One Bad Apple in Medical Negligence

WSHB Partner Michelle Arbitrio to Moderate Panel on Insurance and Risk Management in the Age of Mass Shootings

WSHB Cannabis Attorney Finalist for "Lawyer of the Year"

Girl on Fire: The Price of Pursuing the Truth in the #MeToo World

Pragmatic Issues on Settlement Versus Trial for Legal Malpractice Cases

WSHB Partner Jade Tran Named to Lawyers of Color's "Nation's Best" List

WSHB Senior Associate Selected for 2020 Diversity Leadership & Mentoring Program

A Withering Assault

The Natural Progression of Natural Disasters

Nevada’s Governor Signs Chapter 40 Reform Bill

WA Condo Law Changes Hope to Curtail Frivolous Defect Lawsuits and Stimulate Production

WSHB Co-Founder Stephen Henning Steps Into the Spotlight at this Year's West Coast Casualty Seminar

Professional Liability Expert Weighs In On Protecting Your Practice From Opioid Doc Arrest Fallout

Penalties, Punitives, and Granny Cams: The Escalating Lure of Elder Abuse Litigation

Are Structured Settlements Still Relevant

Game Changing Trends Affecting Construction

He's Not My Guy: The Joint-Employer Doctrine

WSHB Case Update: DOL Proposes Increase to Minimum Salary Threshold

WSHB and DWF Announce Exclusive Association

Brooke Bohlke Takes to the Stage at CLM's 2019 Nevada Chapter Education and Networking Event

WSHB Partner Constance Endelicato Named to The Best Lawyers in America© 2020 List

Defense Summary Judgment in Favor of Defendant Northern California City Against $4M Wrongful Death Suit

April 26, 2018

In a wrongful death action, partner David Webster and associate Tudor Jones recently obtained summary judgment for our client, a large city in Northern California (the “City”). Plaintiff’s decedent lost control of his bicycle as he rode on a sidewalk through a narrowing underpass. Upon losing control, the decedent fell from the sidewalk into the adjacent roadway where he was struck and killed by a passing motorist. Plaintiff alleged that they City was negligent in its design and maintenance of a dangerous condition, the bicycle infrastructure, generally, on public property. The successful Motion for Summary Judgment was brought under Plaintiff’s failure to establish causation, a necessary element of the causes of action pleaded.

The trial court agreed with all arguments and entered Judgment against Plaintiff’s suit seeking an estimated $4 million in wrongful death damages. Notably, the Court sustained 27 of the City’s 37 objections to evidence.

Why this Case is Important: Fact Investigation

Wrongful death suits rarely involve admissible testimony by the decedent, so, by their nature, they are argued on the merits of eyewitness and expert testimony. Since the plaintiff in a wrongful death case may not have been at the scene of the death of the decedent, the facts as alleged commonly require detailed analysis and corroboration. Moreover, due to their nebulous nature, wrongful death actions may involve highly developed theories by plaintiff counsel who can do nothing more than speculate about the events leading up to the death. The flipside of the early development of a theory of the case, of course, is the closing argument at trial, when a plaintiff counsel can talk about the damages due to a plaintiff who lost a decedent and surely needs compensation. Once a sympathetic jury hears about the tragic end to a person’s life, defense counsel can do little to assuage the natural inclination of juries to grant high awards.

In our case, the plaintiff was a likeable widow of an upstanding member of the community. Plaintiff counsel specializes in bicycle-related personal injury actions. From the beginning, allegations were widespread, but uncertain: the sidewalk caused the bicyclist to lose control, or perhaps vegetation overhanging the sidewalk was the primary influence, or maybe the curb-cut in the sidewalk contributed. As we progressed through extensive discovery, every request for admission caused a battle, every response to an interrogatory, ambiguity. It became clear that none of the only three witnesses to the tragic incident, decedent’s riding companion, the passing motorist, or another motorist behind him, actually saw the events leading up to decedent losing control, so Plaintiff could not connect any alleged dangerous condition to the resulting death. The third witness, who spends half her time in Mexico and was difficult to pin down for deposition, offered vital testimony in her deposition, as the Court noted.

After extensive briefing and oral argument, the Court issued a 6-page Order granting the City’s Motion for Summary Judgment, holding that Plaintiff could not show what caused decedent’s death, nor that any alleged dangerous condition was a substantial factor, mainly because none of the three deposed witnesses could say with sufficient certainty that he or she actually witnessed the crucial last moments before the decedent lost control. The City had other strong defenses, including the open and obvious nature of the alleged conditions and the decedent’s familiarity with his chosen, fateful route, but the City’s Motion focused almost exclusively on lack of causation.

The Court rejected Plaintiff’s attempt to introduce the testimony of a design expert, an engineering expert, and an accident reconstruction expert, stating, “the Court cannot find that Plaintiff’s expert opinions are sufficient to demonstrate the existence of triable issues of material fact because of the absence of admissible evidence that the condition of the sidewalk and roadway are substantial factors.”

PRINT

Privacy Policy      |      Site Map

© 2019 Wood Smith Henning & Berman LLP

Subscribe to our mailing list

* indicates required