LAPD officer shoots 13-year-old boy playing with pellet gun after dark. $19.2 million net award. Los Angeles County.
13-year-old boy with pellet gun is shot by LAPD officer on street after dark. Circumstances of shooting are disputed. Quadriplegia. $19.2 million net after contributory negligence.
- Case Name: Rohayent Gomez Eriza v. City of Los Angeles and Victor Abarca
- Court and Case Number: Los Angeles County Superior Court, Central/ BC453870
- Date of Verdict or Judgment: Friday, December 14, 2012
- Date Action was Filed: Sunday, January 02, 2011
- Type of Case: Civil Rights, Police Shooting
- Judge or Arbitrator(s): Hon. Joseph Kalin
Plaintiffs: Rohayent Gomez Eriza, 13
Defendants: City of Los Angeles and Victor Abarca (police officer).
- Type of Result: Jury Verdict
- Gross Verdict or Award: $24,000,000
- Net Verdict or Award: $19,200,000 after contributory negligence.
- Contributory/Comparative Negligence: The jury found 5% fault on the part of plaintiff and 15% fault on the part of his mother.
$14,000,000 - future medical and lost wages.
Punitive damages trial against the shooting police officer is scheduled for January 14, 2013.
- Trial or Arbitration Time: 3 weeks
- Jury Deliberation Time: 3.5 hours per plaintiff's counsel; 1 day per defense counsel.
- Jury Polls: 9-3 on unreasonable force; 9-3 on negligence.
Attorney for the Plaintiff: Gregory W. Moreno & Associates by Arnoldo Casillas and Christopher Moreno, Montebello
Attorney for the Defendant: Elizabeth Fitzgerald, Los Angeles City Attorney’s Office
Plaintiff’s Medical Experts: Eliezer Nussbaum, M.D., pulmonology, Long BeachKimberly K. Bedell, M.D., rehabilitation, Long BeachToni Guajardo-Gonzalez PhD., psychology, Pasadena
Defendant's Medical Experts: Suzi Kim, M.D., rehabilitation, Long Beach
Plaintiff's Technical Experts: John Gardiner, Ph.D. P.E., biomechanics, Laguna HillsLiz Holakawicz, life care planning, CarlsbadTimothy Lanning, economics, Santa AnaRoger Clark, police practices, Santee
Defendant's Technical Experts: Harry Anderson Markel (in-house, LAPD), police practices
Facts and Background
Facts and Background:
On the evening of December 16, 2010 at 7:30pm plaintiff Rohayent Gomez, a 13-year-old Hispanic boy standing 5'7" and weighing 209 pounds, was playing cops-and-robbers in front of his home with two friends of the same age. He lived in the Glassel Park section of Los Angeles, an area known for gang and criminal activity. The three boys were shooting Airsoft pellet guns at each other from opposite sides of the street. The Airsoft guns are realistic-looking pellet guns with brightly colored tips.
When plaintiff stepped into street from behind a van, he was shot by defendant officer Abarca. (The circumstances leading to the shooting were related differently by plaintiff and defense. See contentions.)
The officers were on routine patrol and were not responding to any criminal activity in the area of the shooting.
The bullet hit plaintiff in the upper left shoulder and traveled toward his spinal column. The bullet struck his spine and shattered the vertebrae in his upper chest (T3/T4), pulverizing his spinal cord and leaving him paralyzed from the upper chest down.
That police used excessive and deadly force.
That as plaintiff paused on the sidewalk to put more pellets in his Airsoft, he stood behind a van. That he heard someone call out to him and stepped out from behind the van and was shot immediately.
That plaintiff did not know the police had arrived. He did not learn that he had been shot by the police until he regained consciousness as he was being handcuffed.
At trial, counsel for plaintiff presented the testimony of a biomechanical engineer who contradicted the officer’s version of the shooting. The engineer showed that the bullet’s trajectory
did not match the officer’s account, which was that he and plaintiff were standing in front of each other and that plaintiff’s right shoulder was slightly forward as the officer shot. The physical evidence indicated that plaintiff’s left shoulder was forward, that the trajectory of the bullet was left to right and downward, and that plaintiff had to be standing about three feet to the officer’s left. This put plaintiff directly at the corner of the van, where plaintiff testified he’d stepped out from before he was shot. Plaintiff’s version of the shooting was corroborated by the physical evidence.
Eye witnesses also contradicted the officers’ account of the shooting. One eyewitness confirmed that the officers exited their patrol car and drew their firearms immediately. Both officers
denied doing this. Defendant Abarca, the shooter, admitted that if they had done this, they would have been in violation of the LAPD’s policy against premature drawing and displaying of
weapons. The same eyewitness also contradicted the shooter as to the use of a flashlight…confirming that no flashlight was used by the officer. Two eyewitnesses confirmed that the officer only gave one command “Don’t [expletive] move!” and then fired his gun.
That the three individuals seen by the officers initially ran when they saw the police approaching. That the three were ordered to come out where they could be seen and to show their hands. That the plaintiff remained behind a van despite multiple commands from police to show his hands and walk out from behind the vehicle.
That although the plaintiff's gun had a brightly-colored tip to indicate that it was a replica, darkness and the almost identical color of the plaintiff's clothing and the gun's tip made it impossible for the colored tip to be seen by the officers.
That when the plaintiff finally did emerge from behind the van, he did so with the replica gun initially concealed in his sweatshirt pocket. He then revealed the gun. Fearing for his life, the police officer fired a single shot that struck the plaintiff in the chest, paralyzing him. Defendant officer contended that he and plaintiff were standing, facing each other and that plaintiff's right shoulder was forward when the officer fired.
Defendants said that approximately a year after plaintiff was shot, officers responding to a domestic dispute at plaintiff's home spoke with plaintiff. Plaintiff told them that, on the night of the incident, he was scared and had run from the police.
As to contributory negligence, defendants called the Airsoft gun store owner who testified that his store does not sell to people under 18, and that his store advises its customers that Airsoft guns cannot be used in public places. He further testified that all patrons are given a list of facilities where Airsoft guns can be used.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Gunshot wound; lung puncture, lobectomy; severed spine; paraplegia; physical therapy; scar and disfigurement.
After the shooting, plaintiff was taken by ambulance to Los Angeles County USC Medical Center. Doctors determined that plaintiff sustained a single shot to his upper left shoulder and
through his left clavicle that punctured the top part of his left lung which then tore through the T-3 and T-4 vertebrae and severed his spinal cord. Plaintiff was in the hospital for three weeks during which he was intubated and underwent a lobectomy to remove the upper left lobe in his lung. Plaintiff was left paralyzed from the chest down by the injury. After he was discharged from the hospital, plaintiff spent three months in a rehabilitation center.
The plaintiff's medical experts testified that he is permanently paralyzed and will remain in a wheelchair the rest of his life. Plaintiff continues to have respiratory problems caused by his
lung intubation period in the hospital. Plaintiff sustained scarring in his bronchial tubes that makes it difficult for him to clear fluids from his chest. Plaintiff will need ongoing respiratory monitoring.
The defense did not dispute the nature and extent of plaintiff’s injuries.
Per plaintiff's counsel there was a settlement demand for $5,000,000 and no offer from defense.
Per defense counsel, plaintiff did not make any settlement demands at any point in time and defendants did not make any offers.