PO Box 1596, Santa Cruz, California 95061  -  831 429-2039 in Santa Cruz or 408 998-2968 in San Jose  -  email grw@ix.netcom.com

CUTTER MEDIATION BRIEF

Law Office of Bar #90828
GREGORY REEVE-WILSON
PO Box 1596
Santa Cruz, CA 95061
(831) 429-2039

Attorney for Plaintiff

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CRUZ

   Cutter,
        Plaintiff
vs.

   Canepa,
        Defendant
___________________________/

CASE NO. 141683

MEDIATION BRIEF

Date : May 23, 2002
Time : 1:30 pm
Court: Dept. 8

TABLE OF CONTENTS

FACT SUMMARY.................................................Page 2

LIABILITY....................................................Page 2

ISSUES.......................................................Page 3

ARGUMENT.....................................................Page 3

DAMAGES......................................................Page 4

ITEMIZATION OF DAMAGES.......................................Page 5

CONCLUSION...................................................Page 6

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FACT SUMMARY

On September 16, 2001, Defendant Canepa backed his SUV out of a driveway at 406 Bay Avenue (near Gayle's) at a high rate of speed using only his rear view mirror to see behind him for pedestrians. He did not see Ms. Cutter and Mr. Bosworth walking on the sidewalk. The rear of Defendant's SUV struck Ms. Cutter and Mr. Bosworth on the sidewalk. The impact knocked Mr. Bosworth over and struck Ms. Cutter's right arm as she grabbed Mr. Bosworth to try and pull him out of the way. Ms. Cutter's right shoulder rotator cuff was probably torn in this collision.

After this collision, Officer Locatelli of the Capitola police took statements from all the parties and he prepared a traffic collision report. In that report (copy attached as Exhibit A) at page 4 at STATEMENTS, officer Locatelli notes:
Canepa stated that he was backing out of the private driveway...when he heard a "bump" sound coming from the right rear side of his vehicle. He said he was using his mirrors to back out and didn't notice anything in the way.

At defendant's deposition, he admitted that he struck Mr. Bosworth on the sidewalk with his SUV, but he denied telling officer Locatelli that he was backing up using his rear view mirrors and he denied going fast, as observed by Ms. Cutter.

LIABILITY

Drivers of vehicles must yield the right of way to pedestrians on a sidewalk (Vehicle Code section 21952)and drivers backing out of driveways must yeild the right of way to oncoming traffic ( Vehicle Code section 21804(a)). Defendant admitted that he did not yield the right of way to oncoming traffic and he admitted that his vehicle struck pedestrians on the sidewalk. Therefore, Defendant is liable for causing this accident.

ISSUE

Is defendant's liability 100%, or were plaintiffs contributorily negligent?

ARGUMENT

The issue of contributory negligence turns on whether a jury believes that Officer Locatelli and Ms. Cutter are telling the truth. If a jury believes the statement defendant made to the police officer that defendant was backing up using only his rearview mirror and it believes Ms. Cutter's observation that defendant was driving fast, then it will probably find that defendant is 100% liable for the injuries he caused.

However, if defendant can persuade a jury that Officer Locatelli is lying about defendant's statement and that Ms. Cutter is lying about defendant driving fast, then the jury would probably find that plaintiffs were contributorily negligent.

I think a jury is more likely to believe that Officer Locatelli and Ms. Cutter are telling the truth. Officer Locatelli is a professional police officer who has no interest in this case and who is trained to take accurate police reports. Ms. Cutter is a long time county resident and a former schoolteacher. In 1999, The American Society of Public Relations published the results of a five year survey determining what types of public figures were most trusted by the public. Schoolteachers ranked second, after judges. Police officers were near the top of the list.

Defendant Canepa is a former car salesperson who now builds and races custom trucks.

DAMAGES

INJURIES

Ms. Cutter felt pain in her right arm and shoulder after this accident. She did not immediately go see a doctor because she hoped the pain would resolve on its own. It did not resolve on its own; it became worse. When the pain became bad enough to alarm her, Ms. Cutter went to see a doctor at DOCTORS ON DUTY on October 3, 2000; she complained of right forearm pain.

TREATMENT

The doctor at DOCTORS ON DUTY, Dr. Foucheaux, took a history, examined Ms. Cutter, took x-rays and diagnosed right shoulder strain secondary to being struck by your insured's vehicle.

Dr. Foucheaux recommended that Ms Cutter ice her shoulder, elevate it, use a sling and perform gentle range of motion and stretching exercises. He told her to return if her pain did not resolve
within a few weeks.

When her pain did not resolve in a month, Ms. Cutter returned on October 30, 2000 and saw Dr. Robson. The doctor gave Ms. Cutter a prescription for physical therapy. Ms. Cutter went to physical therapy but, when Ms. Cutter's right arm continued to hurt, she returned and saw Dr. Robson again on November 15, 2000. At this appointment, Dr. Robson gave Ms. Cutter a prescription to Naprosyn. Dr. Robson told Ms. Cutter to continue her therapy, which Ms. Cutter did.

Ms. Cutter finished her first course of physical therapy at the end of December 2000, but her still had right arm pain. As a result of this pain, she consulted Dr. Warren Scott. a sports medicine specialist. Dr. Scott diagnosed Ms. Cutter with a rotator cuff tear and he prescribed a series of cortisone injections for Ms. Cutter's right shoulder. As a result of these injections, Ms. Cutter felt some improvement, but she continued to have pain
at night and pain when she ran or did yoga exercises.

When Ms. Cutter continued to complain of this pain, her doctor, Dr. Eglin referred Ms. Cutter an Orthopedic clinic, where she saw Dr. Welle. Dr. Welle diagnosed Ms. Cutter with a probable rotator cuff tear and he recommended an MRI and possible surgery (copy of report attached as Exhibit B). At that time, Ms. Cutter did not want to consider surgery, so Dr. Welle prescribed physical therapy for exercise education, which she did.

Ms. Cutter still has right arm pain at night and when she runs, dances and does yoga. She no longer plays tennis. She is now considering following Dr. Welle's advise to have surgery to repair her torn rotator cuff.

ITEMIZATION OF DAMAGES

Medical Specials

Date
10-3-00
10-30-00
11-15-00
10-31-00 to 12-28-00
1-11-01 to 6-17-0
5-22-01
6-25-01
7-23-01 to 9-10-01

Provider
Dr on Duty
DR on Duty
DR on Duty
Physical Therapy Center
Dr. Scott
Dr. Elgin
Dr. Wells
Dominican PT

Charge
442
63
63
2050
788
85
80
674

Estimated Future Medical Specials
Surgery
Hospital
Anesthesia
PT

CONCLUSION

I think a jury will believe Officer Locatelli and Ms. Cutter and find that the defendant was 100% at fault. I estimate a jury would award Ms. Cutter about $15,000 if she does not have surgery and over $25,000 if she does have surgery.

Respectfully submitted.