Trial Magazine

Mitch Carter, a 17-year-old senior at Bakersfield High School, agreed to wear a chicken suit at his school’s pep rally to mock a rival school’s eagle mascot. During the event, several students ran onto the court and tackled Carter. He left the court but returned. Shortly after, other students rushed onto the court, dog-piled onto Carter, and began punching, kicking, and stomping on him. At one point, students held his arms and legs, while another student kicked him in the head. After Carter was helped off the court, he had difficulty walking, he felt disoriented, and his head hurt.

Carter was taken to the hospital, where he was treated for severe facial swelling and abrasions. After he was released, he continued suffering from headaches, disorientation, and slurred speech. About three years after the incident, he was diagnosed with a traumatic brain injury (TBI), including damage to his frontal lobe. His past medical expenses totaled about $106,900.

At the time of the incident, Carter was class president and a successful student who planned to attend medical school after college. The injury affected his executive functioning, including his thought processing, judgment, and short-term memory. He now struggles to read and has failed multiple college classes. He also suffers from migraine headaches, psychological problems, and an injury-related hormone imbalance that damaged his pituitary gland. As a result of the latter, he must take growth hormones on a permanent basis. His future medical expenses and life care costs are estimated at about $5 million.

Carter sued the school district, alleging that school employees failed to provide a safe environment, permitted and encouraged him to participate in a skit that was likely to become physically violent without ensuring that he was ­properly protected, and failed to stop the skit immediately when things spiraled out of control. The plaintiff claimed it was ­foreseeable that students at the rally would become riled up and that he would be a vulnerable target while wearing the awkward, unpadded chicken suit.

The school district countered that Carter’s academic struggles were not related to the injuries he sustained at the pep rally. The defense noted that Carter was not diagnosed with a TBI until three years after the incident and argued that, to the extent his problems were the result of head injuries, other incidents were to blame, including two incidents—one four months before the rally and one three months after—in which he had been struck in the head with baseballs. The defense also argued that binge drinking in college was to blame for Carter’s failing grades.

Plaintiff counsel relied heavily on input from focus groups to get potential jurors’ perspectives, including their perceptions regarding fault. Initial focus groups found that the school district was at fault but also placed some blame on Carter for walking back onto the court. Counsel realized that waiting until later in the presentation to discuss the dog-pile would shift jurors’ focus away from blaming Carter—the technique changed jurors’ attitudes from “he should have known it was coming” to a perspective of anger and contempt for the school district.

The work with focus groups paid off. Counsel used that strategy when relating the facts at trial. The jury found the school district 100 percent at fault.

During a second phase on damages, the district agreed to settle, tendering policy limits of $10.5 million.

Citation: Carter v. Kern High Sch. Dist., No. S1500CV275395 (Cal. Super. Ct. Kern Cnty. June 29, 2016).

Plaintiff counsel: AAJ members Nicholas C. Rowley, Beverly Hills, Calif., and Joseph H. Low IV, Long Beach, Calif.