Motorist swerves into construction zone, striking and injuring worker

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Case in Point

April 26, 2011

Motorist swerves into construction zone, striking and injuring worker 

A worker who suffered paraplegia after being struck by a motorist who swerved into a construction zone to avoid traffic ahead alleged the driver failed to keep a proper lookout. He also claimed that the contractor and subcontractor on the highway construction project failed to maintain a “clear zone” between workers and traffic. Davila v. Haas-Anderson Constr., Ltd.

David Davila, a 38-year-old temporary agency employee, was assigned to work for Highway Technologies, Inc., a subcontractor on a highway construction project run by general contractor Haas-Anderson Construction, Ltd. Davila was part of a three-man crew placing barrels along the highway in anticipation of switching the traffic flow from one side of the road to the other.

After stockpiling several barrels, the men returned to their truck, which was parked near the right side of the highway. As Davila was climbing into the back of the truck, a passing motorist, Leo Hala, swerved into the construction zone to avoid the traffic ahead of him, striking Davila.

Davila suffered a complete transection of his spinal cord at T2-3, resulting in paraplegia. He now uses a wheelchair and requires assistance with many daily living activities. He also sustained a closed-head injury resulting in some vision loss. His past medical expenses totaled just under $1.1 million.

Davila is now permanently disabled. His past lost earnings totaled about $46,000, and his future lost earning capacity is estimated at $750,000.

Davila and his wife, individually and on behalf of the couple’s three minor children, sued Hala, alleging he failed to keep a proper lookout and control his speed. They also sued Haas-Anderson and Highway Technologies, alleging that the general contractor and subcontractor failed to create and maintain a 30-foot “clear zone” extending from the edge of the highway. The plaintiffs contended that Hala’s vehicle had gone only about 10 feet into the work zone and that Davila would not have been struck if the defendants had maintained a clear zone for parking trucks and equipment.

The plaintiffs’ rehabilitation expert estimated that the present value of Davila’s future medical expenses and life-care costs is about $4.37 million, while the defense life-care planner estimated the cost at about $2.47 million.

Before trial, the plaintiffs settled with Hala for his policy limits of $50,000.

Highway Technologies moved for summary judgment, arguing that because Davila was a borrowed servant, the company was a workers’ compensation-covered employer and was therefore immune from suit under the state workers’ compensation exclusivity bar. While that motion was pending, the plaintiffs settled with Highway Technologies for a confidential amount.

The jury awarded just over $9.42 million, allocating fault at 60 percent to Hala, 30 percent to Highway Technologies, and 10 percent to Haas-Anderson. The award included $550,000 to Davila’s wife for loss of consortium and $150,000 to each child for loss of parental consortium. Haas-Anderson is responsible for about $942,000. The trial court has entered judgment on the verdict.

Both sides have appealed.

Citation: Davila v. Haas-Anderson Constr., Ltd., No. 09-61205-4 (Tex., Nueces Co. Ct. at Law, Dec. 9, 2010).

Plaintiff counsel: R. Blake Brunkenhoefer, Greg W. Turman, and AAJ member John B. Gsanger, all of Corpus Christi, Texas.

Plaintiff experts: Steve Irwin, accident reconstruction, Dallas; John M. Mounce, roadway design and construction, College Station, Texas; Stefan Konasiewicz, neurosurgery, Corpus Christi; and John Carter, neuro-ophthalmology, and Alex C. Willingham, rehabilitation and life-care planning, both of San Antonio, Texas.

Haas-Anderson’s experts: Jeffrey Milburn, roadway design and construction, College Station; and Emma Vasquez, vocational rehabilitation and life-care planning, Houston.

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