Summer BBQ ends in broken facial bones for plaintiff. Defense verdict. Fresno County.

Summary

Dad at backyard barbeque is hit in face when young ball player loses control of metal baseball bat. Serious injuries.

The Case

Case Name: Heflebower v. Beard
Court and Case Number: Fresno County Superior / 14 CE CG 01418
Date of Verdict or Judgment: Friday, August 19, 2016
Date Action was Filed: Thursday, January 09, 2014
Type of Case: Negligence
Judge or Arbitrator(s): Hon. Kristi Culver Kapetan
Plaintiffs:
John Charles "Chuck" Heflebower, 54, architect.
Defendants:
Ryan Beard
Type of Result: Jury Verdict

The Result

Gross Verdict or Award: Defense verdict.
Trial or Arbitration Time: 8 days.
Jury Deliberation Time: 1 1/2 days.
Jury Polls: 11-1 on 3 factual questions related to assumption of the risk and 10-2 on a fourth question (also on assumption of risk).
Post Trial Motions & Post-Verdict Settlements: Motion for New Trial: Denied; Motion to Tax Costs: Granted in part with $69,000 awarded based on CCP 998.

The Attorneys

Attorney for the Plaintiff:
Fowler | Helsel | Vogt by Jason Helsel and Mark Vogt, Fresno.
Attorney for the Defendant:
Robinson & Wood, Inc by Art Casey and Colin McCarthy, San Jose.

The Experts

Plaintiff’s Medical Expert(s):
Aaron J. Noordmans DDS, oral surgery, Fresno. (Treating physician.)

Bruce A. Havens DDS, orthodontics, Fresno. (Treating physician.)

Dr. Brian Woo M.D., oral and maxillofacial surgery, Fresno. (Treating physician.)

Matthew Tatum, Ph.D., psychology, Kerman. (Treating physician.)
Defendant's Medical Expert(s):
William Lynch, Ph.D., neuropsychology, Redwood City.

Facts and Background

Facts and Background:
Plaintiff, 54-year-old Chuck Heflebower, suffered nose and Laforte III facial fractures when he was hit in the face with a metal baseball bat being used by defendant Ryan Beard (age 16 at time of accident).

Beard and Heflebower's sons were playing whiffle ball in a neighbor's backyard during a 4th of July barbecue. They were using a small metal T ball bat and plastic ball. They were playing "home run derby." The bat slipped out of Beard's hands when he took a swing. The bat hit Heflebower, who was standing very nearby, directly in the face. He suffered fractures in his nose and nearly every bone in his face.
Plaintiff's Contentions:
Plaintiff contended at trial that he had just exited the pool on a hot day and was looking for a towel. Plaintiff said he did not know the boys were playing with the metal bat and plastic ball at the time he was looking for a towel. Plaintiff testified at trial that he may have vaguely been aware the boys were using a metal bat but that he never used the bat himself that day. That contradicted plaintiff's deposition testimony in which he admitted he took a couple of swings with the metal bat earlier that day.

Plaintiff's sons testified they were not sure if plaintiff ever used the metal bat but he did know they were using the bat earlier that afternoon. The sons also testified that plaintiff was not participating in the game or standing nearby talking to them immediately before plaintiff was hit by the bat. Notwithstanding that testimony in deposition and trial they marked photos, admitted into evidence, that showed plaintiff standing very nearby to the game.
Defendant's Contentions:
Defense argued plaintiff assumed the risk of injury because he was standing nearby talking to the boys and knew they were playing a baseball activity with the metal bat.

Ryan Beard testified that the boys had been playing "home run derby" before and after dinner while in the backyard. Ryan testified that plaintiff had played in the game with them for a period of time. Ryan testified that they had stopped "scoring" in the game but they were still standing in their "playing positions" while they playfully argued whether Giants or Dodgers hitters were better.

Ryan testified that plaintiff was standing very near him participating in the playful debate about which team hit better. Ryan further testified that he took a normal swing at a ball pitched by plaintiff's son but the bat slipped out of his hands and hit plaintiff in the face.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Plaintiff suffered skull and nose fractures (Laforte III Fractures) that required surgical implant of metal plates; also, his broken jaw had to be wired shut.
Plaintiff claimed residual injuries to include misalignment of the jaw, nasal and breathing difficulties, permanent double vision, PTSD, sexual dysfunction, brain injury, depression, suicidal ideation and alcoholism brought on by the depression.

Special Damages

Special Damages Claimed - Past Medical: $60,000 incurred but not claimed at trial.
Special Damages Claimed - Future Medical: Unspecified numbers for future surgeries and psychological treatment..
Special Damages Claimed - Past Lost Earnings: None claimed.
Special Damages Claimed - Future Lost Earnings: Unspecified number for claim he could no longer work as an architect.

Additional Notes

Regarding settlement demands/offers:

Plaintiff made various settlement demands over the course of the case, including two mistrials, so it is hard to pinpoint one particular demand. The demands varied from $450,000 to $850,000. Plaintiff asked the jury to award $2.7 million.

Defendant served a CCP 998 for $100,000 before the start of the first trial. Judge Kapetan awarded almost all of defendant’s costs ($69,000) after the defense verdict.

The case was defensed on the basis of assumption of the risk. The trial judge heard a summary judgment motion based on assumption of the risk. In denying the summary judgment motion she found there were still factual questions a jury should decide. The jury found plaintiff was standing nearby and knew about the game. Therefore, assumption of the risk as an absolute defense (no duty) applied and the case was defensed. This trial was the third attempt at trial after two prior mistrials.