Knowing what is, or is not a good subrogation case takes time and experience. The negligence “reasonable man” standard has clear extremes, and a grey area in the center that makes a determination of what conduct is below the standard sometimes difficult. A new case from the California court of appeal shows what ended up to be not such a good case for the injured worker.
Plaintiff James C. Keith filed an action against the City of Pleasant Hill, and Kelli M. Geis, a police officer employed by the City, seeking damages for injuries he suffered at his job when he was struck by a water pump attached to a hose that became entangled with the underside of Geis’s squad car.
Keith was working for the Contra Costa Water District at the time, performing repairs in the street on Golf Club Road in Pleasant Hill. The construction area was set up with orange traffic cones directing eastbound traffic on Golf Club Road into the right hand, or “number two” lane. Keith was working in the number one lane, where a hole had been dug to fix a leaking pipe. As part of the construction work, the District workers placed a flexible hose attached to a water pump across the active lane of traffic, the number two lane.
Kelli Geis, a Pleasant Hill police officer, was driving a patrol car eastbound on Golf Club Road on a nonemergency assignment to back up a fellow officer. The posted speed limit was 25 miles per hour. Geis slowed as she entered the construction area, and passed over the hose at under 25 miles per hour. Traffic had been passing over this hose for several hours earlier that day, with some vehicles traveling faster than Geis and some traveling slower. When Geis passed over the hose, it became entangled in the undercarriage of her vehicle. As she continued driving, the hose pulled the water pump out of the excavation hole. The pump struck Keith’s leg, causing multiple serious fractures. The force of the impact also sent him into the air, causing him to fall on and injure his head and shoulder. Geis was not aware of the accident at the time it occurred. As she traveled further down the road, another driver indicated to her that some material was trailing from her patrol vehicle. She stopped the car and retrieved a section of yellow hose.
Defendants filed a motion for summary judgment. Defendants argued that Geis did not breach any duty to Keith. In opposition, Keith offered the opinion of an expert in accident reconstruction and analysis who concluded that Geis’s speed had “caused the pressurized hose to ‘jump’ higher than other motorists who had traveled at slower speeds over the hose, which allowed the hose to catch or entangle on the undercarriage of [her] vehicle.”
The trial court granted summary judgment in favor of the City and police officer. The judgment was affirmed in favor of the defendants in the unpublished case of Keith v. City of Pleasant Hill.
The Court concluded that it “is not reasonable to require a driver of a vehicle to foresee that driving at or below the posted speed limit over a hose that has been deliberately extended over the road, and which the driver has no choice but to drive over, will become entangled in the undercarriage of his or her vehicle. If such were the case, any vehicle driven over such a hose would potentially subject its driver to liability. Indeed, it is difficult to perceive how a driver could avoid potential liability in this case, given that hundreds of vehicles of all sizes had driven over the hose prior to Geis, some at different speeds and all without incident.”
The outcome of this case is not surprising. The opinion is based on simple common sense. Often it is just common sense that helps a claim administrator determine what is or is not a good case for subrogation. Keith’s claim is a good example of a case that would not justify a subrogation effort.