Court Cites Attorneys’ Mistake in Negligence Case

Oct 24, 2008

A California appeals court has affirmed that the attorneys representing a school district in a negligence suit brought by a student-athlete should have inquired whether a key witness in presenting the district’s arguments had given a pre-trial statement to the plaintiff’s attorneys that conflicted with the witness’ statement at trial.
The impetus for the litigation was an injury suffered by plaintiff Justin Sallinen during a football practice at Upper Lake High School on September 18, 2002. Sallinen was running with the football when he was hit simultaneously on the left side of his left knee, and from the front. He suffered a fractured femur, a torn anterior cruciate ligament (ACL) in the knee, and torn meniscus in the knee. The fracture was successfully repaired by orthopedic surgeon. However, surgery on the ACL in July 2003 was not entirely successful, with the surgeons opining that he was in need of another ACL operation at the time of trial. The plaintiff’s father testified that he had been unable to pay most of plaintiff’s medical bills, and that he could not afford the additional surgery the plaintiff needed.
“The issue at trial was whether the ACL injury occurred when plaintiff was hit during the football practice, in which case defendant was not liable for the injury, or the injury occurred later that day when he fell while attempting to walk to a phone to call for a ride home,” according to the appeals court. The defendant “faced liability under the latter scenario given the undisputed evidence that plaintiff was left in the locker room after practice by the coaches, who went home without ensuring that he had transportation home or to a doctor.”
Conflicting expert testimony was presented on how the ACL injury likely occurred. Central to this quandary was the testimony of a student, Jeremy Treadaway, who, according to the plaintiff, witnessed the ACL injury long after the practice.
However, Treadaway testified as a defense witness that he and plaintiff were left alone in the locker room after practice, and that he helped the plaintiff to the front of the gym without any mishap.
“After the defense rested, plaintiff advised that he wanted to call an investigator as a witness to introduce a taped statement given by Treadaway in February 2004 that contradicted his trial testimony,” according to the court. The defendant “urged that the statement be excluded as inadmissible hearsay.” The court ultimately admitted the testimony, which led to a victory for the plaintiff.
The defendant moved for a new trial on the grounds that the court erred in admitting Treadaway’s prior inconsistent statement.
In its discussion, the court noted that the defendant introduced two arguments. “First, the defendant contends that it was not required to determine prior to trial whether Treadaway had given the plaintiff a statement because it was entitled to rely on the plaintiff’s discovery responses indicating that no such statement had been furnished. … Second, the defendant argues that it could not have avoided being surprised by Treadaway’s inconsistent statement even if it had asked him about other statements prior to trial. The defendant submits that Treadaway’s trial testimony shows how he would have responded to questions about his prior statements, and observes that Treadaway said he did not recall giving a different story than he gave at trial.”
The court wrote that it “shared the trial court’s view that it was incumbent on the defendant, as a matter of ordinary prudence, to interview Treadaway prior to trial about all statements he may have provided.”
Further, it wrote that “Treadaway’s trial testimony confirms that the defense would have learned about his other statement had it inquired about such statements before trial as it should have done. In that event, the defense would have known that the plaintiff’s discovery responses were inaccurate, would have ‘deposed or grilled’ Treadaway about the statement, and would not have been blindsided by it at trial. Thus, the trial testimony does not show that the surprise in question could not have been avoided with ordinary prudence.”
Justin Sallinen, a Minor, etc., et al. v. Upper Lake Union High School District; Ct. App. Calif., 1st App. Dist., Div. 1; A116155; 2008 Cal. App. Unpub. LEXIS 1553; 2/26/08


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