Negligence and Misconduct

Casey Gerry’s San Diego negligence
and misconduct attorneys case experience

In 1989, Casey Gerry's negligence and misconduct attorneys obtained the largest settlement in the city’s history against the City of San Diego. The case involved negligence by a police officer who was responding to a call. He failed to activate his warning lights and sirens necessary to warn other vehicles of his approach. While driving at a high rate of speed, he struck a vehicle and seriously injured the passenger. She sustained extremely serious injuries, which caused her to remain in a coma for more than a year. Although she emerged from the coma, she suffered brain damage and permanent paraplegia. She had earlier lost her husband in another accident, and now she and her family were confronted with her own terrible injuries.

She was treated at Sharp Memorial Hospital under the skillful care of Dr. Jerry Stenjehem. Her family was unfailingly supportive through her ordeal, and a year later she came out of her coma. At the time his case was resolved in 1989, resulted in the largest settlement ever awarded against the City of San Diego. The city provided financial resources to assure her care for the rest of her life. As with any police negligence case, Casey Gerry conducted extensive depositions regarding the conduct of the officer involved to establish that his conduct was the cause of the accident. We were able to show that there was no negligence on part of the driver nor herself in this case. David Casey, Jr. was the lead attorney for Casey Gerry in this case.

Another case in which Casey Gerry played a lead role was Cross v. City of San Diego. In this case, the father of an unborn child was shot and killed by a police officer who was responding to a 911 call. A pregnant woman called 911 complaining that she was being attacked by this man, and the police responded to the call. When the young man answered the door he was shirtless and he had no weapon on him. He rotated his body and the police shot and killed him. Our client was the infant girl born months after the death of her father. In a case tried in federal court over five weeks in Federal Court we were able to establish that the amount of force used, which resulted in the death of the father, was unnecessary, and was negligent. We were able to obtain compensation to help support the young child who was now without a father.

In the case of Walter Wacik-Santamaria v. City of San Diego, attorney Tom Luneau of Casey Gerry brought the case for Mr. Wacik. He had been arrested by officers, and he admittedly had evaded capture during an arrest situation. Once he was arrested, however, he was cooperative, and complied with their directives. One of the CHP officers raised Mr. Wacik’s leg, rotated and twisted it, causing a commutated fracture of his ankle, resulting in an extremely serious injury to our client. Mr. Wacik then remembers receiving several blows to the foot that had just been injured. This case was taken to trial under 42 U.S.C. 1983 which provides that even under arrest the constitutional rights of individuals may not be violated. The arresting officers testified that the injury was caused by the plaintiff’s running from them. Expert testimony by the orthopedic surgeons indicated that the injury could not have been possibly caused by running. Because of the nature of the rotation, the injury could only have been caused when the plaintiff was lying on the ground while his leg was severely and violently twisted. The jury determined that in fact Mr. Wacik’s constitutional rights had been violated, and awarded significant damages to compensate him.

Even individuals who are arrested have the right to be protected from brutal force. Casey Gerry represented a man who was an alcoholic, who had a history of being arrested for being drunk in public. After he had been arrested by the City of San Diego he had been turned over to the County of San Diego and placed into the San Diego County jail. He was intoxicated at the time and was arrested because he could not assure his own safety or the safety of others. While in custody a sheriff’s deputy in the jail became irritated with him. The deputy slammed a large door against his leg, causing a severe fracture to the femur. Casey Gerry brought an action against the County of San Diego and the City of San Diego alleging that either the City had not arrested him with just cause, or in the event that he truly was inebriated and couldn’t care for his own safety, the County then had a duty to deal with him appropriately and not to injure him. After extensive discovery, the case was settled in our client’s favor. The judge handling the case was clearly of the opinion that the County had not acted appropriately in this circumstance.

In a case of negligence by a training school, Casey Gerry partner Thomas Penfield represented a young man who fell 15 feet from a utility pole, severely injuring his back. He was training as a cable installation technician, which included instruction in climbing utility poles. At the end of a long day of practice climbs, the student was directed to make yet another climb. He protested that he was exhausted, and could not. The instructor pressured him, telling him he had to make the climb for his certification, and to pass the course. As is required in certification climbs, the young man climbed the pole without fall protection equipment,. As he started down, he attempted to drive his climbing spikes, or gaffs, into the pole to stabilize himself. The gaffs didn’t hold, and he dropped 15 feet in free fall, landing on his buttocks and delivering a massive blow to his spinal column.

He sustained painful and disabling spinal injuries that have required him to seek extensive medical treatment. He faces the prospect of spinal surgery as two herniated spinal discs continue to deteriorate. He can never hope to work as a cable technician, and he lives with chronic, intermittently severe pain.

The school’s insurer declined an offer of settlement, electing to take the case to a full jury trial. Casey Gerry’s expert witness testified that fall protection equipment is standard for climbing utility poles, not only in training, but for work in the field. Since 1998 OSHA regulations have required the use of such equipment for employees on any climb higher than four feet. Yet this training school neither provided fall protection equipment, nor did it teach the use of it. The school led this young man to believe he was receiving safe and proper training, when in fact they created the conditions that led a career-ending injury. The jury agreed, and found that the school’s failure to practice the minimum standard of care for its student throughout the course of training amounted to negligence, and awarded $455,000 plus all costs, a sum more than three times the original offer. The award will help this young man deal with his permanent disability and physical and vocational rehabilitation as well as his continuing medical needs.

Casey Gerry attorneys brought an action on behalf of the son and daughter of a 64 year old man who died as a result of gross medical neglect at Donovan State Correctional Facility in San Diego County. The victim, who had been briefly incarcerated for insurance fraud, had a 15-year history of heart disease, including coronary bypass surgery and an angioplasty with multiple stents. He had been paroled, was active as a lay pastor in his church, and was rebuilding his life as a responsible and productive citizen including work with the church’s full time on his goal of opening a foster home for at-risk children.

In 2005, the victim was detained at San Diego County Jail for an alleged violation of his parole. Jail medical staff recognized the significance of this man’s cardiac history, and his heart condition was closely monitored: He was given daily blood pressure checks, cardiac enzyme checks, and EKGs. He was taking eight cardiac medications every day, including nitroglycerin. During his stay he had frequent chest pain and abnormal EKG results, and often took nitroglycerine for his pain. Two days before his transfer to Donovan, jail medical personnel requested a referral for him to see a cardiologist at UC San Diego Medical Center for additional cardiac evaluation.

Two days later he was transferred to Donovan. The transfer documents included the Jail medical staff’s careful history and evaluation, and a listing of his eight cardiac medications. The documents were clear that the victim had an extensive cardiac history and all complaints of chest pain should be taken extremely seriously. They also recommended that he be placed in a first floor unit so that he would not have to climb stairs.

At Donovan all his medications were taken from him during intake processing. For medications that may be required by an inmate before the prison pharmacy fills prescriptions, the procedure is for the prisoner to be sent from the intake area to the pharmacy for a short-term supply of medication. Despite the fact that Mr. Palmer had a lengthy cardiac history and used nitroglycerin multiple times a day for pain, after processing he was not sent to the pharmacy. He was sent directly to his cell without any medication.

His cell was on the second floor. Climbing the stairs, he experienced such severe chest pain that the guards called the MTA, the medical technical assistant, on duty. The standard of medical care in such a situation requires that the treating person ask some important questions of the patient, including did the patient have a history of cardiac disease, how long had the chest pain been present, did the pain radiate, and what was the quality or character of the pain. The MTA did not recall whether he asked the victim these questions, and there are no notes of them in the medical record. The MTA told the guards he thought the patient was faking. He did not attempt to secure nitroglycerin, he did not transport him to the clinic, nor did he perform any further evaluation. He offered no care at all.

Less than an hour later, guards again called the MTA. The victim was again in severe pain. The same MTA came, and again decided that the victim was faking. When a third call came, the MTA heard the victim’s name, and did not even go to evaluate him. The next morning guards found the victim unresponsive, and took him to the infirmary, where he was pronounced dead. The county medical examiner determined that the MTA was responsible for the victim’s death for his failure to properly evaluate and treat the victim’s chest pain.

Casey Gerry lawyers used the records at the jail and at Donovan, and the medical examiner’s report to demonstrate the gross negligence that led to this man’s needless and preventable death. The California Department of Corrections concurred with the failure of care, and agreed to a settlement which recognized their culpability, and the substantial and unnecessary loss which this man’s children had suffered.