Creamer vs. Palma Company-(1989) Los Angeles Superior Court

Plaintiff was a 5 year-old boy at the time a garbage truck backed over him in a long driveway of a large apartment complex. He received a crushing injury to his pelvis, a ruptured kidney, and a severely scarred chest, arm, thigh and ankle. He claimed an inability to engage in anything but semi-sedentary employment. He claimed past medical expenses of $11,000.00, future plastic surgery expenses of $27,000.00, and future loss of earnings of $300,000.00. His attorney argued that the truck driver gave no warning that he was backing up, had no backup alarm, and knew that children were in the area.

Defendants offered $35,000.00 in insurance funds, and $20,000.00 from the client. Plaintiff demanded $100.000.00.

By the time the case was tried, plaintiff was 19 years old. One witness to the accident, a 7 year-old boy at the time, was listed on the police report, but he could not be found for many years. Shortly before trial, the witness’ grandparents were located, but efforts through a professional investigator to obtain their cooperation in contacting the witness were unsuccessful.

At trial, plaintiff professed to have no personal memory of the event. His sister, who was nine years old at the time of the accident, however, testified that just prior to the accident, she and her brother passed through a hole in the fence that divided the two apartment complexes. She said that they were walking down the driveway when the garbage truck simply backed over her brother.

The garbage company was a one truck operation. Its policy limits at the time of the accident of $25,000.00 had steadily shrunk with the intervening years, leaving the owner woefully underinsured. On the first day of trial, Mr. Mann sent his client to the missing witness’ grandparents’ home, to plead with them to contact their grandson, and to say that he might lose his house as a result of this case, something which was, of course, the truth. On the second day of trial, the witness, who happened to be off work with the flu, picked up the phone, called Mr. Mann, and agreed to testify.

When the witness took the stand as part of the defendant’s case-in-chief, he testified that he and plaintiff were standing at the entrance to the apartment complex when the garbage truck pulled in. The witness ran up and hung on the back of the truck as it went down the driveway, and then ran quickly to the side when it stopped, thereby avoiding detection by the driver. After the driver emptied the dumpster, the witness testified that our client came over to the two boys and told them that he was going to back up and that they should not move. As the driver went to the cab, plaintiff ran forward unseen, grabbed onto the rear of the truck, and held on only for a few feet before he lost his grip and fell in the path of the truck’s rear wheel. Only the driver’s quick reaction kept the accident from being more serious than it was.

The jury was out approximately 30 minutes and returned a unanimous defense verdict.

Of particular interest, prior to trial, the insurance carrier offered $35,000.00 to settle the case, a figure that was actually $10,000.00 above its policy limits, a very unusual situation. Plaintiff’s attorney accepted the offer to settle the matter but, after receiving the settlement check, denied that he had ever agreed to settle the case and, in fact, raised his demand, claiming that Mr. Mann had simply sent him a drop draft. Plaintiff’s attorney’s behavior made this victory especially satisfying.

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