On Monday, November 7, 2011, a Modesto,
California jury awarded the Scarlett Law Group’s 38-year-old
plaintiff $10,651,423.13 after a two-month long, hard-fought,
Plaintiff, a 38-year-old dry wall union
worker was a passenger in his brother's Chevrolet Silverado
pickup truck on his way to work from Modesto to Palo Alto
California in the early morning hours (4:30 AM). Plaintiff was
belted, sitting in the front passenger seat. Plaintiff's brother
was driving, and the two had just left home approximately 10
minutes prior to the collision.
In order to get from Modesto, California over
to Interstate 5 and ultimately into the bay area, plaintiff's
brother had taken a two lane 55 mile an hour highway (Shoemake
Avenue). Unbeknownst to either plaintiff or his brother, a local
farmer was in the midst of harvesting grapes on approximately
200 acres adjoining Shoemake Avenue. Unfortunately, the farmer's
practice was to utilize the westbound lane of Shoemake Avenue in
order to offload the grapes from a grape gondola into truck
trailers parked on the shoulder of the road. Virtually all of
the westbound lane was blocked. It was extremely dark that
morning, and the operator of the tractor/gondola utilized no
flagman and only one cone. The defense nonetheless contended
that the two lights and reflective tape on the rear of the
gondola were sufficient, and cross-complained against
plaintiff's brother. The defense additionally cross complained
against an individual they contended was an independent
contractor, who they alleged had directed the harvesting process
utilizing Shoemake Avenue.
Randall H. Scarlett tried the case against
the landowner/farmer utilizing two vicarious liability theories:
peculiar risk and non-delegable duty. Under these theories of
vicarious liability the jury is not asked to apportionment fault
pursuant to Proposition 51. Scarlett also maintained a direct
negligence claim based on the landowners negligent direction of
the harvest process.
The jury's verdict was unanimous (12-0) on
all liability theories. At significant expense, Mr. Scarlett
reenacted a nighttime visibility study which was admitted into
evidence. This demonstrative evidence was extremely persuasive.
The jury awarded $624,880.13 in past medical
The jury awarded $2,526,543 representing the
present value of plaintiff's diminution of earnings capacity.
The jury awarded $2 million representing the
present value of plaintiff's future medical expense, as well as
$2,500,000 in past non-economic damages, and $3 million in
future non-economic damages.
On the direct negligence theory (for which
apportionment under proposition 51 would apply), the jury
awarded 95% fault against the defendant farmer/landowner
(defendants at trial) and spread the remaining 5% among two
defendants with whom Scarlett had settled pretrial for their
policy limits of approximately $1 million each.
The defendant farmer/landowner was defensed
on its cross complaint against plaintiff's brother, and also on
its cross-complaint against the purported independent
contractor. In fact, the jury found the purported independent
contractor to be an agent of the defendant farmer/landowner
working within course and scope.