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FEATURED CASE

MEDIATED SETTLEMENT YIELDS $47.5 MILLION FOR A MINOR CRUSHED BY UNMAINTAINED TREE AT COUNTY PARK


San Mateo, CA: Robert W. Johnson & Associates was retained to provide economic analysis of the lost earning capacity and future life care plan expenses.

Citation: Zachary Rowe, a minor, by and through his Guardian ad Litem, Cabot Peters Jr. and Michelle Peters v. Pacific Gas & Electric Company, County of San Mateo, Western Environmental Consultants, Inc., and Does 1-50, Inclusive, No. CIV515962, Superior Court of San Mateo County. Plaintiff’s attorney was Timothy G. Tietjen of Rouda, Feder, Tietjen & McGuinn, San Francisco, CA. The judge was the Honorable Steven L. Dylina.

Case Synopsis: On July 25, 2012, plaintiff Zachary Rowe, 12, was camping with his family in an approved campground in San Mateo County Memorial Park. He was injured when a rotten 72-foot-tall tanoak tree collapsed and fell onto his tent as he slept, causing catastrophic injuries.

Although Zachary suffered multiple injuries, his cousin, who slept next to him, was not injured. Zachary fractured his left femur and a crushed pelvis, which prevented blood flow to his right leg. As a result of the injuries, doctors determined the only way to save Zachary’s life was to perform an amputation of his pelvis, buttocks and right leg. Zachary endured over 50 surgeries and initially spent six months in the hospital. All of his procedures have exceeded $5 million in hospital bills.

Zachary, through his guardian ad litem, Michelle Peters, sued the owner and operator of the campground, the County of San Mateo, the owner of the power line, Pacific Gas & Electric Co. (PG&E), and the vegetation management contractor for PG&E, Western Environmental Consultants, Inc. (WECI). The company hired by the County to inspect its campsites for hazardous trees, The Davey Tree Expert Co., was later added as a defendant.

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Zachary alleged that the County was negligent for failing to eliminate and/or warn of the dangerous condition of public property, that Davey was negligent in inspecting the County’s campsite, and that PG&E and WECI were negligent for failing to maintain the area around its power lines in a safe condition.

Plaintiff’s counsel contended that the subject tree was surrounded by a cluster of five campsites, including the one occupied by Zachary’s family. It was also located approximately 20 feet from a paved access road and 30 to 40 feet from PG&E’s power line, and within range of the line if it fell in that direction. During the case, each defendant filed a motion to dismiss Zachary’s case without trial. Plaintiff’s counsel was successful in defeating all four motions. Two of the defendants – San Mateo County and PG&E, then appealed to the California Court of Appeals. In its ruling, the Court stated that neither PG&E nor the County were immune from the lawsuit, and allowed the case to proceed.

Analysis: Mr. Johnson was first asked to analyze Zachary’s loss of future earning capacity. Second, he was asked to analyze Zachary’s future medical expenses.

Since Zachary was a minor at the time of injury, he had no earnings history. With the help of the vocational consultant, Mr. Johnson was able to provide a range of three potential earning capacity scenarios. The positions were network & computer systems administrator, computer programmer and software developer. Mr. Johnson also included a fringe benefits package of 21.1% of earnings for each scenario. These scenarios yielded a present value range of lost earning capacity of $3.9 million to $4.9 million.

Next, Mr. Johnson reviewed the life care planner’s future medical plan. As a result of Zachary’s injuries, he will be dependent on progressive attendant care over his lifetime. In addition to prosthetics, he will also need bladder reconstruction surgery and various skin grafting surgeries over the rest of his life. Mr. Johnson presented the future medical expenses as having a present value of $9.0 million.

Result: During a scheduled, two-day mediation, the parties agreed to an aggregate settlement of $47.5 million, which was finalized via the guidance of mediators Robert J. Kaplan and Rachel Ehrlich, of Judicate West. Of the total settlement, $24 million will be paid by the county, $6 million will be paid by Davey Tree and $17.5 million will be paid by Western ECI on behalf of itself and PG&E.

Attorney’s Comments: According to plaintiff’s attorney Timothy Tietjen, "Zachary sustained catastrophic injuries in the accident. He had already incurred over $5 million in past medical expenses. When I saw Mr. Johnson’s analysis and the present value of the lost earning capacity and future medical expenses, I knew Zachary was going to need a large sum of money to cover his future wage loss and necessary care over his lifetime. The impeccable soundness and clarity of Mr. Johnson’s analysis on future economic damages helped put the case into perspective and was very important in helping us settle the case."