Defense Verdict Obtained at Trial of Wrongful Death Action

January 1, 2004

Robert M. Scherk and Ian C. Fusselman, recently represented Leong Kuba Sea Products and obtained a defense verdict in a wrongful death action where the 12 year-old and 10 year-old plaintiffs sought damages for the death of their mother decedent, Maria Aviles, in an automobile accident.

The accident occurred while Ms. Aviles was traveling in the front seat of a car driven by her best friend and co-worker, defendant Maria Chavez. Defendant Chavez attempted to exit the freeway from the No. 3 lane cutting in front of a San Diego transit bus in the No. 4 lane. At the same time, a truck delivering fish for Leong Kuba Sea products was stopped at the side of the freeway with its flashers activated. The bus could not avoid colliding with Ms. Chavez's car and as a result pushed the car into the fish truck. Ms. Aviles died at the scene of the accident.

The California Highway Patrol report concluded that the sole fault of the accident was the manner in which defendant Maria Chavez was operating her car. She was cited for unsafe lane change and vehicular manslaughter, and later pled nolo contendere to negligent homicide. However, this information was kept out of evidence at the time of the trial by plaintiffs.

There was never any dispute defendant Maria Chavez was the primary cause of the accident; the primary liability issue at trial was whether defendants San Diego Transit and their driver and/or Leong Kuba Sea Products and their driver had any liability. Plaintiffs alleged that co-defendant San Diego Transit and their driver were liable for failing to brake sooner when defendant Chavez changed lanes. Plaintiffs also alleged that Leong Kuba Sea Produts and their driver were also negligent for stopping along the freeway without legal cause to do so. Plaintiffs claimed that had the fish truck not stopped his truck on the side of the freeway, Ms. Chavez's car would not have been pushed by the bus into his truck and Maria Aviles would not have died.

Prior to trial, Plaintiffs made only one settlement demand for a total of $500,000. In closing argument, plaintiff's counsel asked the jury to award each plaintiff $100 per day for the approximate life expectancy of their mother, which totaled just under $3,000,000.00.

After a six day jury trial, which included the testimony of 23 witnesses, the jury deliberated for one hour and returned 12-0 defense verdicts for San Diego Transit, Leong Kuba Sea Products and their respective drivers.

Robert M. Scherk tried this case and Ian Fusselman prepared the trial briefs, motions in limine and conducted significant research throughout the trial. Both attorneys are resident in Murchison & Cumming's San Diego office.