Last week, I was able to successfully negotiate the settlement of a motorcycle fatality case against the State of Alaska, Department of Transportation ("DOT"). The basis of DOT responsibility was DOT workers' failure to clean up after asphalt repair with the result being that the motorcyclist lost control of his bike on small pieces of gravel entering a sharp curve.
Clients often ask about what makes a case strong and what makes a case weak. Here are what I considered to be some of the keys to success in this case.
1. Photographic confirmation of asphalt repair work (DOT workers could not remember what work they did except in the most general terms)
2. Neutral witness confirmation of hazardous road conditions specifically on the day and time of the accident.(DOT workers simply denied they would ever do shoddy work)
3. Photographic and record corroboration of neutral witness testimony. (In this case, one witness actually called DOT to complain and there was a record confirming the phone call).
4. The deceased having a clean traffic citation history so as to rebut accusations of reckless driving. (Rightly or wrongly, there is a stereotype of motorcylists).
5. The deceased driving a touring motorcycle while wearing helmet and leathers.
6. Advising the clients how the case could be lost despite strong facts. One consideration in this case is that a jury deciding a claim against a government entity appreciates that the verdict will be paid from tax dollars. Just as a popular television commercial says "Its our Oil!" the jury will be saying "Its our Money."
The motorcyclists family were deserving clients and I was happy that I could help them. In my opinion, they played their hand smartly.