Metropolitan News-Enterprise


Tuesday, October 20, 2009


Page 1


Court Orders New Trial in Fatal Interstate 5 Crash


By SHERRI M. OKAMOTO, Staff Writer


The Third District Court of Appeal yesterday upheld a grant of a new trial against a commercial truck driver and Wal-Mart Transportation LLC for a fatal 2004 roll-over accident on Interstate 5.

The panel concluded in an unpublished decision that “ample evidence” supported a trial judge’s decision to reject the jury’s finding that the truck driver’s negligence was not a substantial factor in causing the accident, which killed a 5-year old boy and his aunt near the Dunnigan rest stop, about 20 miles north of Sacramento.

At that location, the I-5 consisted of two northbound lanes of traffic, separated from the southbound lanes by a dirt median. The on-ramp from the rest stop to the northbound traffic lanes consisted of a single “acceleration lane” which ran parallel to the traffic lanes for several hundred feet before merging, and was separated by a triangular area known as the “gore area.”

Nigel Mason, who was driving a tractor-trailer in the course of his employment with Wal-Mart, had entered the acceleration lane from the north end of the rest stop, followed by Valerie McGrath in a Subaru Legacy which had entered the lane from the south end of the rest stop.

‘Gore Area’

McGrath allegedly moved into the “gore area” in an effort to pass, but Mason began merging left before the Legacy had cleared the truck. The Subaru moved into the number one lane to avoid the truck, and then the number two lane, forcing a Chevrolet Tahoe that was already traveling in that lane off of the road.

Victor Andreyuk and his sisters—Valentina Anishchenko, and Anna Poulson—were in the SUV, along with Anishchenko’s two minor children, Vanessa and Anthony, and Poulson’s minor daughter, Sasha.

The SUV swerved left onto the median, then back onto the road ahead of Mason and McGrath and rolled over several times.

According to Andreyuk’s attorney, Jeffrey S. Pop of Beverly Hills, Poulson and Anthony were killed, while Andreyuk was ejected from the car and sustained serious injuries and Anishchenko suffered trauma resulting in brain damage.

Andreyuk and Anishchenko later sued Mason, Wal-Mart, McGrath, the owner of the car McGrath was driving and the owner’s father, as well as the state.

McGrath and the owner of the Subaru and the owner’s father settled the claims against them prior to trial and a jury found in favor of the remaining defendants following a seven week trial. The jury specifically found that Mason was negligent, but that his negligence was not “a substantial factor in causing harm to plaintiffs.”

The plaintiffs then moved for a new trial, which Yolo Superior Court Judge Timothy Fall granted, determining that Mason had “either negligently failed to see the Subaru when he merged onto [l]ane 2, or he saw the Subaru but negligently chose not to slow down his truck, use the remainder of the on-ramp, or move to the right side of the ramp to allow the Subaru to move ahead of the truck,” and that the “weight of the evidence is for the second scenario.”

Had Mason not caused the Subaru to enter lane one, Fall said, “there would have been no accident.”

Continued to Merge

Writing on appeal, Justice Cole Blease agreed, noting that McGrath, her passenger and one other witness each testified that Mason had continued to merge onto the I-5 while the Subaru was beside his trailer, which forced the Subaru into lane one in front of plaintiffs’ SUV.

“This testimony supports the trial court’s finding that Mason’s negligence was a substantial factor in causing plaintiffs’ harm,” he said, explaining that the trial court was not obligated to accept Mason’s testimony that the Subaru was not next to him as he merged and could reasonably infer Mason had not seen the car or continued to merge anyway.

As a trial court’s order granting a new trial is entitled to substantial deference on appeal and can only be made if no reasonable finder of fact could have found for the movant on the trial court’s theory, Blease reasoned that “given the deference accorded the trial court’s ruling, this appeal borders on the frivolous.”

Justices Ronald B. Robie and M. Kathleen Butz joined Blease in his decision.

Pop told the MetNews that he agreed the appeal was frivolous, and that “it would be frivolous, without a doubt” if the defendants appeal yesterday’s decision to the Supreme Court. He insisted that the decision “should have” been published to “make parties not appeal something that is clearly within the judge’s discretion.”

Anishchenko was represented by David W. Janes of Gardner Janes Nakken Hugo & Nolan, and Richard L. Alley of Hardy Erich Brown & Wilson represented Wal-Mart. They could not be reached for comment.

The case is Andreyuk v. Wal-Mart Transportation, C057934.


Copyright 2009, Metropolitan News Company