Family of Victim of Drunk Driver Recovers $1.26 Million Settlement Posted on May 31, 2017 by Larry Bodine Plaintiff attorney Roger Booth of Booth & Koskoff in Torrance, CA. The family of a California tow truck driver who was hit and killed by a drunk driver settled their wrongful death claim for $1,265,000. The defendant California Highway Patrol (CHP) had called him to a crime scene, but left, leaving him exposed to traffic as he loaded a vehicle in traffic on Freeway 10. Plaintiffs’ attorneys Roger E. Booth, a member of The National Trial Lawyers Top 100, and Carly L. Sanchez, both of Booth & Koskoff in Torrance, CA, achieved the settlement. On Jan. 28, 2014 at 1 a.m., two California Highway Patrol officers pulled over a motorist on Cedar Avenue near the 10 Freeway in Bloomington, CA, and arrested him for driving under the influence. The officers called for a tow truck to impound the vehicle, and Ricardo Valdez, 39, responded to that call. The vehicle was located in a lane of traffic, and Valdez had to load the vehicle onto his flatbed tow truck in that location. While loading and securing the vehicle, a second drunk driver, defendant Maria Ochoa, struck Valdez who suffered fatal injuries. (Ochoa later pleaded guilty to vehicular manslaughter.) The plaintiffs are the decedent’s mother (age 66 at the time of the settlement) and two daughters, are 10 and 15 years old. The case is Vianey Valdez, Aylen Valdez, Josefina Santoyo v. State of California, (CIVDS1416659) before San Bernardino Superior Court Judge John M. Pacheco. Officers leave after 3 minutes The video footage from the CHP vehicle showed that, about three minutes after Valdez arrived on the scene, the officers left with the suspect. Valdez had to finish loading and securing the suspect’s vehicle with no traffic control in place. Approximately 10 minutes after the officers left, Ochoa traveled down Cedar Avenue towards Valdez’ location. At that moment, Valdez was at the rear of the tow truck, performing the final steps of securing the car to the bed of the truck. Ochoa testified that she was following another car in front of her, that the other car suddenly swerved to the left and that she applied her brakes, but she could not stop in time. Valdez was crushed between the front of Ochoa’s car and the rear of the tow truck and was declared dead a few hours later. Plaintiffs contended that because the CHP officers called Valdez to the scene and placed him in harm’s way, as he was in the middle of an active traffic lane, they had a special relationship with him and owed him a duty to provide reasonable protection. The officers breached that duty by leaving the scene promptly after Valdez’ arrival. The CHP’s own procedures regarding special relationships allow the officers to leave only if there is an emergency elsewhere, they have been relieved by other law enforcement officers or they have been ordered to leave by a superior officer. Plaintiffs contended that had the officers stayed on scene, with their vehicle parked behind the suspect’s vehicle, the drunk driver would have, at worst, struck the rear of the CHP vehicle and caused some property damage. Valdez would have been uninjured. Defense: no special relationship The defendants contended that there was no special relationship between the officers and Valdez and that getting struck by a motorist is simply an inherent risk of working as a tow truck driver. Defendants also contended that most or all the fault for the crash rested with Ochoa, the drunk driver, who had consumed two shots of tequila and four to five beers at the bar where she worked. Ochoa fled the scene after the crash, and when the police finally tested her blood alcohol level about eight hours later, it was .08 percent. Defendants’ toxicologist opined that her BAC would have been approximately .21 percent at the time of the crash. Defendants argued that it was Ochoa’s intoxicated condition that prevented her from seeing and avoiding the bright, flashing lights of the tow truck, which were visible from 350 feet away. Further, the defendants contended that the officers had a legitimate reason to leave the scene because Valdez allegedly told them he did not need their assistance and because their CHP office was shorthanded that night. Defendants argued that Valdez’ employer bore a significant share of the fault because he allowed Valdez to perform towing operations for the CHP without having obtained CHP certification. The defendants’ tow truck expert opined that it was unsafe for Valdez to stand at the rear of his truck to secure the suspect’s car and that the safer practice was to perform that task from the side of the truck. Mother depended on Valdez Valdez lived with his mother at the time of the incident. Plaintiffs contended that the mother was financially dependent on her son, on account of the $300 per month that he contributed towards the mortgage payment, and that this established her wrongful death standing under CCP 377.60(b). Defendants disputed that there was financial dependence, and this likely would have been an issue for the jury at trial. Valdez had not lived with his daughters since 2008 and was never married to their mother. However, he did see his daughters almost every day. Because Valdez earned just over minimum wage and because it would have been extremely difficult to estimate the amount of money that he contributed to his daughters, plaintiffs chose not to seek economic damages. The only damages sought at trial would have been non-economic damages for the loss of plaintiffs’ relationship with the decedent. A total settlement of $1,265,000 was reached with retired judge Joe W. Hilberman, ADR Services, serving as mediator. At the mediation, the CHP agreed to pay $1,250,000 to settle the case, and plaintiffs agreed to dismiss the individual officers. Of the total settlement amount, $100,000 was allocated to decedent’s mother and $575,000 each to decedent’s two daughters. The children’s money is being placed into annuities, which will pay out $670,000 to the elder daughter and $707,000 to the younger daughter over the course of the next 30 years. Prior to the mediation, the insurance carrier for the drunk driver, Ochoa, agreed to pay its $15,000 policy limits. This money was used to resolve the entire workers’ compensation lien, which totaled $278,438. The plaintiff’s expert witnesses were Charles Dickerson, accident reconstruction, Mesa, Ariz.; Jesse Enriquez, tow truck standards, Los Angeles; Mark S. Sanders, Ph.D., human factors, Encino; Alvin Yamaguchi, law enforcement practices, Chino Hills.