2201 E. Chapman Avenue
Fullerton, CA 92831
John Plume, a studio driver with a long history of serious low back complaints, including a spinal surgery before the accident in question, was an avid bicycle rider and surfer. He was riding his bicycle in a marked bike lane when he approached a parked DISH work van. As he approached, he saw a man walk along the rear and the side of the van. Plume claimed this person “flung” the door open, and that he was unable to avoid colliding with the door. He received a nasty gash in his elbow area, but did not crash the bike. Plaintiff called an ambulance, which arrived and was visible in photographs of the scene taken by the DISH installation technician.
He later received stiches for the gash, and sought physical therapy for back complaints. He claimed that his longstanding back complaints culminating in a pre accident spinal fusion surgery had resolved to the point where he was riding his bike and surfing, and ready to return to work. Plaintiff testified at deposition that he twisted his torso when his elbow hit the door, and reinjured his back.
Several months after the accident, he began making complaints of pain radiating into his legs, and he was diagnosed with “failed back surgery”, where the pain the surgery was supposed to alleviate returns. He had a spinal implant surgically placed, and had post accident medical expenses of $175,000.
There is a California Vehicle Code Section directly on point: a vehicle operator that opens the door of a vehicle:
California Vehicle Code 22517: “No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.”
This appears to place liability squarely on the operator of the work van. Plaintiff asked for and received a “negligence per se” jury instruction, which told the jury that if the driver opened the door when it was not safe to do so, it was his fault.
Although there was a long history of pre-existing low back pain and treatment, plaintiff underwent a surgical procedure after the accident, and was very active before the accident, including bicycling and surfing. If a jury were to believe that he reinjured himself, a substantial verdict was likely.
Early on, interviews with the DISH installation technician established that plaintiff’s version of the accident was very different than the technician’s story. According to the technician, he looked for traffic before walking along the van, and he was fully seated and had closed the door when plaintiff punched the side of the van as he went by, then he rode away for some distance before returning and cursing at the driver.
Coupled with Plume’s history of low back complaints, we dug into his records and were able to create a time line of leg complaints made after the surgery, but before this accident, as well as statements made by Plume in patient intake forms indicating pain after long bike rides and surfing long after the accident, something he claimed to have given up.
Additionally, GPS data from his bicycle established that he was traveling 20 miles per hour at the time of the impact, and he testified that he did not slow, move to the left, yell, or take any other action because “there was not time”.
We obtained an accident reconstruction expert who was able to re create the time it took the technician to walk from the rear of the van, where plaintiff admitted seeing him standing, to the door, to open the door, and get into the van. This was about 4.8 seconds. He then explained to the jury that 4.8 seconds before the impact, plaintiff was almost a half a block away, and he had sufficient time to slow down, move to the left, or yell at the drive not to open the door, but he did nothing except try to punch the van.
Plaintiff’s attorney told the jury that the accident was 100% the fault of the technician, because the vehicle code said so. He told them of the $175,000 in medical bills for the spinal implant, and told them plaintiff would be in pain for the rest of his life. He asked them to award $900,000.
Mr. Mall argued that there was plenty of time for Mr. Plume to avoid the accident. He could have easily stopped, slowed, yelled to or at the driver, or moved to his left. Instead, he charged on at 20 miles an hour and decided to hit the van with his hand, the one option that would ensure that there was some contact between Plume and the van. He showed the jury where Plume had made leg complaints before and after his previous surgery, even before this accident, and where he told his doctors that his back hurt after long bike rides and surfing.
The jury agreed, allocating 55% of the liability for this accident to Mr. Plume and only 45% to the technician, and awarding him only $2,336.03.