Fury Bailey - Personal Injury - Wrongful Death Attorneys

SERIOUS INJURIES TO FIVE-YEAR-OLD BOY RESULT IN SIX MILLION DOLLAR SETTLEMENT

By William S. Bailey

Fury Bailey

P.O. Box 20397

710 Tenth Avenue East

Seattle , WA 98102

(206) 726-6600

A serious child injury case with both premises liability and inattentive driving elements against multiple defendants resulted in a combined settlement of $6,000,000. On July 6, 1996, five-year-old Sam Prichard and his family had been at Sequim Bay State Park for several days, enjoying the Fourth of July holiday weekend. Sam was struck by a car in the late afternoon while crossing U.S. 101 after he had been left unattended by defendant campground host William Maxwell at an organized park sponsored softball game for children.

Sequim Bay State Park is a multi-use year-round recreational and camping facility run by the Washington State Parks & Recreation Commission. It is somewhat unusual in that it has a heavily traveled highway, U.S. 101, going through the middle of the park. The baseball field, tennis courts and play field at Sequim Bay State Park are across U.S. 101 from the campground. A tunnel under U.S. 101 was built in the mid-1930's and connects the campground with the ball fields and recreation area. There is chronic water seepage into the tunnel, graffiti on the walls and no artificial light, making it uninviting to pedestrians. Worn paths in the adjoining grassy areas showed that many campers routinely crossed over the road rather than use the tunnel. As revealed in the case, so did the park staff. There is no fence at the park separating the baseball field from the heavily traveled adjacent highway, or channeling pedestrians to the tunnel.

A few weeks after school let out for the 1996 summer season, the Prichard family set off in their motor home for the July Fourth weekend. Using a telephone reservation system, they obtained a reservation for a hookup campsite at Sequim Bay State Park . The Prichard family consists of Becky and Doug Prichard and their three children. Sam was the youngest, at age five. Mr. and Mrs. Prichard were cautious, responsible parents, who were careful in choosing and monitoring the activities of all their children.

As soon as they arrived at the park, defendant William Maxwell, the campground host, was on duty to welcome them. Besides greeting the family, Mr. Maxwell helped them to establish their campsite.

Mr. Maxwell was acknowledged by all to be a charming, charismatic and trustworthy seeming individual, who made his presence known to all campground visitors at Sequim Bay State Park . Park rangers and visitors alike described him as having a strong and commanding personality and being a vital presence within the park.

After they settled in for the weekend, the Prichards, including Sam, spent some time with Mr. Maxwell and were favorably impressed. As the person who interacted first, and most intimately, with campground guests, Mr. Maxwell tried hard to engender a friendly, upbeat spirit around the campground. As youngsters will, Sam quickly seemed to idealize Mr. Maxwell, who had a grandfatherly manner. Unfortunately, Mr. Maxwell's aspirations exceeded his abilities, causing him to overextend himself with tragic consequences.

Mr. Maxwell organized a softball game for the evening of July 6, 1996, for the children staying in the park. He received the necessary approval for this activity from the park rangers. Signs were posted around the campground, including all bulletin boards and outside the restrooms. Around dinnertime, Mr. Maxwell approached Doug and Becky Prichard at their motor home and asked whether Sammy could come to the game. The Prichards discussed this matter among themselves and after receiving assurances from Mr. Maxwell that he would personally watch Sam at all times, they allowed their son to go.

Unfortunately, Mr. Maxwell failed to live up to his commitment to the Prichards. He lost track of Sam after being distracted by his wife, who came over to the baseball field to discuss a matter with him. While Mr. Maxwell was talking to his wife, Sam was out of his sight. During this time, the child attempted to cross back over U.S. 101 to be with his parents. The dark, damp appearance of the tunnel under the road probably caused him to go over the surface of the highway instead. He managed to get halfway across the road when he was struck by a rental car driven by Srinivasa Raghavan, a young chemical engineering graduate student from North Carolina . Sam's body was hit so hard that the force literally knocked him out of his shoes, caused his body to do what accident reconstruction experts later described as a “fender vault.” He suffered multiple severe brain and orthopedic injuries in the process, receiving care at Olympic Memorial Hospital, Harborview Medical Center and ultimately Children's Hospital & Medical Center . He was in a coma for an extended period of time and required extensive acute and post-acute care from a number of different medical specialties.

Post-hospitalization, Sam's medical status and functional deficits qualified him for state supported care in a residential facility. However, his parents were determined to keep him in a home environment and have done so since his discharge.

The following steps were critical in obtaining a successful result in this case:

•  Follow up fact investigation within weeks of the accident.

•  Computer animation of vehicle-pedestrian collision.

•  Aggressive discovery, both of documents and depositions.

•  Use of risk management principles.

•  Mock jury.

•  Aggressive pretrial motions practice.

1. Investigation.

This case presented special challenges as far as the investigation was concerned. At the scene, the Washington State Patrol and Clallam County Sheriffs Deputies were faced with a monumental road blockage from the heavy holiday traffic. Some eyewitnesses to the collision stopped, some didn't. Of those that stopped, most of the drivers were from out of the area. The Washington State Patrol was more intent on getting Sam Prichard evacuated for medical care, measuring skid marks and marking other reference points on their diagram than on talking to witnesses. Only cursory written statements were taken from the driver and several eyewitnesses.

Plaintiffs' counsel retained veteran investigator Sandra Syverson to talk to all eyewitnesses identified on the police report, emergency medical personnel, all campers listed on the register of Sequim Bay State Park , the park rangers and all other park employees. The investigation went on for weeks and many recorded and written statements were taken. These facts would prove vital to the liability case, serving to refresh the memory of several key witnesses who did not remember the event as well when their depositions were taken several years later. In addition, highway design engineer par excellence Ed Stevens was retained to do a thorough survey of the area and identify any unsafe conditions which led to the injury.

2. Computer Animation.

This case had elements of the classic “child dart” liability pattern, with one important exception. Jere Foister was driving his friend's Ford pickup truck, pulling a boat and a trailer in the lane closest to where Sam Prichard began his dash across two-lane U.S. 101. Mr. Foister braked as soon as he saw the child start to move toward the highway. He was not sure whether he would be able to stop in time or not. Smoke and noise came from his tires as he locked up the brakes. Sam Prichard barely cleared the front of Foister's truck and then paused briefly at the center of the road. Defendant Raghavan coming from the other direction had extra time to stop, in that he had the additional cue of the smoke and noise from the truck's tires, as well as the fact that his small compact Kia could stop much more quickly.

If the truck had hit Sam Prichard, the liability case against the driver would have been far more difficult, a classic “child dart” fact pattern. However, the fact that the truck was able to stop in time allowed plaintiffs' counsel to argue that the smaller, lighter Kia in the opposite lane should have been able to avoid the collision too.

Plaintiffs' counsel brought in accident reconstruction expert Chuck Lewis to gather information for the computer animation, recreating the time that Mr. Raghavan had to avoid the accident. Most significantly, Mr. Lewis established that Mr. Raghavan did not even begin to brake until after Sam cleared the front of the Ford pickup truck coming in the opposite direction.

When his deposition was taken, Mr. Raghavan was a thoughtful, honest witness. He admitted that he saw Sam by the side of the road before he attempted to cross:

Q) How long was he there before he started to cross the road? Can you estimate that . . .

A) Would have been a couple of seconds, three, four seconds . . .

Q). . . As you saw the boy by the side of the road prior to his going across, did you have him in your sight all the time . . .

A) Yes.

Q)And was there anything during that period blocking your view of him?

A) No.

Q) . . . Did you take any action at that point?

A) I took my foot off the gas.

Q) Why did you do that . . .

A)  I did not know what to expect. So just to be on the safe side I took my foot off the gas . . .

Q)Do you have any impression that children can be somewhat impulsive, particularly small children?

A) Yes.

Once the depositions were taken of key fact witnesses, this testimony and the accident reconstruction data from Mr. Lewis were sent to the Orem , Utah firm of Collision Safety Engineering.

In consultation with plaintiffs' counsel, this firm produced three separate scenarios, one showing what actually happened on the day of the accident and the two others demonstrating feasible, realistic braking, patterns that Mr. Raghavan could have used to avoid hitting Sam Prichard. Each scenario was done with both a street level view and then an overhead view looking down on the scene.

The computer animation by Collision Safety Engineering was critical in settlement talks with the excess carrier for the defendant driver. While mock jury studies indicated that it would be likely that the driver would be found partially responsible for Sam's injuries, the prospect of trying a unified, streamlined case against only the State of Washington defendants was attractive for various reasons. Serious separate settlement discussions were undertaken and the driver was discharged from the case for a total of $850,000, some less than the policy limits of $1,000,000.

3. Discovery.

Initially, plaintiffs' counsel took a 30(b)(6) discovery deposition of Joan Hauser-Crowe, the supervisor of the Campground Host Program for the State of Washington . There was a question on whether or not the campground host, William Maxwell, would be covered as an agent of the state or was “only a volunteer.” Documents which came to light during the Hauser-Crowe deposition conclusively established that campground hosts receive some forms of state compensation, such as free campsite and utilities, workers' compensation insurance and personal liability indemnity for their duties.

It was also established in discovery that the State of Washington Parks & Recreation Commission relies heavily on campground hosts to provide low cost labor in the daily running of the state park system. Their official cap and vest was intended to communicate their authority to the public. A manual given to all campground hosts during their training was quite useful in further establishing agency on the part of the campground host.

Depositions of the rangers at Sequim Bay State Park were instrumental in showing that the parents had reasonably relied on campground host William Maxwell in looking out for their son at the softball game. Head ranger Mike Reichner testified as follows:

•  Were you aware that at the time Billy asked for permission if he could take Sam over to the ball field that he had on his campground host volunteer cap and vest?

•  . . . I'm assuming he did.

•  He usually wore it?

•  He usually wore it.

•  And did you consider Billy a responsible sort of person?

•  Yes, sir, I did.

•  And was he the sort of person a parent should be able to trust as far as watching out for children?

•  Yes, sir, they should be, he is.

•  Based on your experience with this man you wouldn't say the Prichards were foolish for trusting Billy to take their son over to the ballgame would you . . .

•  Based on my experience, I would say that he is a reliable person.

•  And that a parent could trust him to safely take their child over to the ballgame at the ball field?

•  Yes.

4. Risk Management.

Most businesses who invite members of the public to come on their premises employ a risk management program of some sort to limit the possible ways in which visitors can be injured. Plaintiff was fortunate in obtaining the expert services of Mary Lou Iverson, who has served as a risk management advisor to many blue chip clients, such as the Walt Disney Corporation. Even better was the fact that she resides in Kitsap County where the trial is set and had previously worked for the Kitsap County Parks Department as a risk management consultant.

Ms. Iverson looked over all the documents produced by the State of Washington Parks Department and raised a number of questions about safety problems at Sequim Bay State Park . So did plaintiffs' other risk management expert, Thom Thompson of Gresham , Oregon . Mr. Thompson has served as a consultant for many years in the public school system. The following conclusions resulted from their combined risk management analysis:

•There should have been a cyclone fence channeling pedestrian

access through the tunnel under U.S. 101.

•There should have been a fence along the boundary between the ball

field and U.S. 101.

•The tunnel should have had lights in it and been free of standing

water.

•There should have been a regular, effective risk management

program in place at the park.

•The campground hosts were inadequately trained to work with young

children.

•The rangers and park staff set a poor example by regularly crossing

over the surface of U.S. 101 instead of using the tunnel.

5. Mock Jury.

Plaintiffs' counsel make it a regular practice of using mock juries, recruited through newspaper ads. This was particularly important in this case, given that possible settlement with the driver was under consideration and that the State of Washington was trying to blame the parents for what happened.

A number of mock jurors were upset at the State of Washington here and that they were even putting the family through a lawsuit. One representative mock juror felt:

Who cares is NOT an appropriate attitude by the State to the presence of immediate and impending danger. Does the State really expect this not to happen when no precautionary steps are taken?

Other mock jurors were in accord. None of the State's defenses were found to be persuasive. Based on the mock jury results, plaintiffs' counsel made a calculated risk that they would be able to try the case without the presence of the driver as a defendant and settled with Mr. Raghavan.

6. Motions Practice.

Even though the park ranger stated at his deposition that the parents acted reasonably here, the State continued to allege that this was the fault of Sam Prichard and his parents. This necessitated motions for partial summary judgment to the trial court. The usual defense of recreational land use immunity was not in this case in that the Prichard family had paid a fee for the services they received at the Sequim Bay State Park .

Several months before trial, plaintiffs' counsel brought a motion for partial summary judgment against the State of Washington in the following respects:

•  No comparative negligence by Sam.

•  No comparative negligence by his parents.

•  The campground host was an agent of the State.

•  The campground host was negligent as a matter of law.

•  The plaintiffs were public invitees.

Despite being urged by the State not to use a bright line test on the issue of Sam Prichard's comparative negligence, Judge Leonard Kruse ruled that a child under the age of six does not have the mental capacity to be negligent, relying on Price v. Kitsap Transit , 125 Wn.2d 456, 461-62 (1994). On the issue of the parents, the Court determined that there was not wanton or willful misconduct by the parents to justify a finding of comparative fault against them, relying on Jenkins v. Snohomish County PUD No. 1 , 105 Wn.2d 99 (1986). In that the State agreed that it covered William Maxwell for liability purposes, the Court found it unnecessary to reach the agency question. Given the circumstances of the invitation for the public to come to Sequim Bay State Park , the Court determined that Sam Prichard and his parents were “public invitees” at common law under WPI 120.05.

Having cut off the State's primary defenses on liability with summary judgment, plaintiffs went into a mediation with the Honorable Charles Burdell at Judicial Dispute Resolution in a position of strength. The State of Washington had not raised any serious challenge to Sam's life care plan created by nursing expert JoAnn Kerrick. The State settled for a total of $5,000,000 on behalf of all its defendants, which, when combined with the partial settlement from defendant Raghavan and the Prichards UIM coverage led to a total result of $6,000,000. At the subsequent approval hearing before Judge Kruse, he found that it would be adequate to cover Sam Prichard's substantial needs over the course of his life.

The case was Prichard v. State of Washington , Kitsap County Superior Court No. 97-2-01970-4. Plaintiffs were represented by William S. Bailey of Fury Bailey, Don M. Gulliford and Shellie McGaughey of Gulliford & McGaughey. The guardian ad litem for Sam was Jean L. Gompf. The State of Washington was represented by Assistant Attorney General John J. Kirschner. Defendant Srinivasa Raghavan was represented by R. Glenn Phillips and K. C. Webster of Phillips & Webster.

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