Just before Christmas the redoubtable Richard Burbidge and his new partner, Aida Neimarlija, hit again with a massive wrongful death verdict against Cottonwood Heights Parks & Recreation in a jury trial before Judge Mark Kouris. Elvir Mehanovic vs. Cottonwood Heights Parks & Recreation, #140908667. (Third District Court for Salt Lake County.)
Sacir Mehanovic, seven years old, drowned on July 6, 2014, at the Cottonwood Heights pool at 7500 South 2700 East . Here’s a copy of the complaint and of a story from the Salt Lake Tribune on the tragedy.
After a five-day trial, the jury returned a verdict of 2.25M for each of Sacir’s parents and $750,000 on his survival claim, for a total of $5,250,000. The Governmental Immunity Cap of ~$700,000 was raised after the trial by the defense, and briefed, but apparently the motion to reduce the judgment was never argued. The parties reached a settlement in the first week of March for an unknown amount.
MARCH 31 UPDATE: I’ve had a chance to speak with Dick Burbidge. He notes that plaintiffs’ counsels’ primary goal was to show the jury that the father was not at fault for not more closely supervising his son. “He was completely devastated and a second devastation by attribution of fault would have been incredibly hurtful.” (The jury ended up putting zero comparative fault on Mr. Mehanovic.)
Mr. Burbidge also states that “as the evidence was presented, it was clear that the lifeguards in question were victims as well in that they were so inadequately tested, trained, and managed. We believe the jury saw that it was an institutional failure, and we are hopeful that the verdict and the evidence that came in will make clear that the young men and women were set up to fail. Had they been trained, managed, and coached by the kind of talent that testified as experts for both sides, this never would have happened.”
ONE FINAL NOTE: I practiced with defense counsel for many years, and he sits in the very top-rank of talented trial lawyers. This is someone who has the judgment not to gratuitously inflame the jury in a dangerous case like this one. There are unavoidable nightmare issues in a case like this for any thoughtful defense lawyer.
Do you argue for smaller general damages, and thus maybe give plaintiffs’ counsel a great opening for an outraged rebuttal? Or do you leave the damages to the jury to decide on their own without your suggestion? How forcefully– or gently– do you suggest that comparative fault be put on a grieving parent? Do you do that at all, or instead just put it on the verdict form without much comment?
Whatever decisions you make, if the verdict goes hard against your client, you will be second-guessed and blamed. Everyone’s an expert after the fact.