Motorcycle strikes commercial water truck at "T" intersection. Death. $3.85 million gross. San Diego County.

Facts and Background

• Facts and Background:

  On June 27, 2004, plaintiff's decedent Michael Kennedy, 61, with several friends, was riding his motorcycle southbound on Japatul Valley Road in El Cajon. Kennedy broadsided Daniel Cummings, who was driving a water truck owned by Development Contractor, Inc. Cummings was stopped at a T-intersection on Japatul Lane at Japatul Valley Road, waiting at the stop sign as several motorbikes passed. Kennedy and his two friends approached from Cummings' left as Cummings inched forward slowly into the intersection.

  Before impact, Kennedy's bike came up off it's rear tire and began smoking due to locked brakes. Kennedy died instantly on impact. His friends went around the truck, unscathed. A California Highway Patrol officer at the scene concluded Kennedy, driving well above the speed limit, was completely at fault. However, Cummings had been driving without a commercial license, with the permission of his employer.

  A witness testified that Cummings had stopped, moved slowly forward and observed Kennedy moving at a high speed. The investigation officer's opinion as to fault, which was adverse to Kennedy, was not received in evidence at trial. At the scene, the decedent's best friend, who was right behind him and himself going 80 mph in the curve, reported to the officer that Kennedy was "pulling away" from him and that Kennedy and his friends were speed racing. The case was originally tried by the same counsel to a defense verdict (10-2) in 2007, but was reversed on appeal based on claimed juror misconduct, and ordered retried.

• Plaintiff's Contentions:

  Kennedy's wife and two of his adult children sued Cummings and Development Contractor, arguing that Cummings had been driving without a commercial license and had done so at least 50 times prior to the accident. Against Development Contractor, they alleged negligent entrustment, claiming that it was its responsibility to ensure Cummings had a proper license. The plaintiffs further claimed that while Cummings stopped at the stop sign, he should have stopped again at the entrance to the roadside rather than inching forward slowly. They claimed that had Cummings braked quickly, the truck would have allowed just enough space for Kennedy to get by.

• Defendant's Contentions:

  Cummings claimed that he saw a blur to his left and tried to clear the intersection, unsuccessfully. Defense counsel claimed that Kennedy was 100 percent at fault for the accident, due to speeding well over the speed limit, allegedly going 80 mph in a 55-mph zone around a sharp turn on a rural two-lane road known to have many driveways. They claimed that Cummings did all he could to avoid the accident, and stopped behind the stop sign and proceeded with caution.