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Award of $250,000 To Parents of Boy Killed in Bike Accident Upheld

child-bike-accidentsPeople who lose loved ones in accidents that are caused by the negligence of others have the right to file wrongful death lawsuits against the responsible parties. When they are unable to reach a settlement agreement, they can go to jury trials. In Hernandez v. First Student, Inc., Cal. Ct. App. Case No. B281161, the parents of a 13-year-old boy who was killed while riding his bicycle went to trial. However, they did not secure the outcome that they wanted and filed an appeal. The case demonstrates the importance of making timely objections during a trial to preserve the record on appeal. If an attorney fails to make objections at the proper time, the arguments may be forfeited on appeal.

Factual and procedural background

On May 2, 2013, 13-year-old Jonathan Hernandez was riding his bicycle on a sidewalk. He entered into the street without stopping, and he was struck by a school bus. The bus was being driven by Barbara Calderon and was owned by First Student. At the time, Calderon was returning the bus to the school after completing her route. Michael Kennedy was an aide who was also on the school bus at the time.

Calderon testified that she could see Jonathan riding on the sidewalk but did not see him veer into the street. She felt the bus hit something and applied the brakes. Kennedy reportedly put the bus into park after the accident. Jonathan was killed. A responding officer believed that Calderon was impaired and asked for testing. A drug recognition expert went to the hospital to evaluate her and stated that she failed the tests. A blood test revealed that she had benzodiazepines in her bloodstream.

At the trial, the jury heard evidence that Jonathan’s mother regularly used methamphetamines, but she testified that she did not use them in front of Jonathan. They also heard that Jonathan’s father had little to do with him and lived in a different state. The jury was presented with video clips of the depositions of both of Jonathan’s parents, and the deposition of his mother was taken while she was in prison. Jonathan’s mother also revealed that she had been taken into custody on an immigration hold.

After both sides rested, the jury deliberated before returning with its verdict. It found that both Jonathan and Calderon were at fault in the accident and attributed 80% of the blame to Jonathan. The jury awarded damages of $250,000 to Jonathan’s parents. They appealed, alleging the court made multiple errors in allowing certain types of testimony and abused its discretion in allowing testimony about Hernandez’s use of methamphetamines among others.

Issue: Whether the court abused its discretion by allowing testimony about Hernandez’s use of methamphetamines, by allowing a retired police officer to testify as an expert about Calderon’s impairment from her medications, and by refusing to grant a motion for a new trial?

The appellants made multiple arguments in an appeal brief that the court termed to be voluminous. They alleged that the court abused its discretion in several ways, including by allowing the defense to raise the issue of Hernandez’s methamphetamines abuse, allowing a retired police officer to be called by the defense to testify as an expert about Calderon’s level of impairment, and by refusing to grant the appellants’ motion for a new trial. The court found that the appellants had forfeited their arguments in many instances because they had failed to make timely objections during the trial or were attempting to raise novel arguments for the first time on appeal rather than at trial. It agreed to consider a limited number of arguments, including whether the court abused its discretion.

Rule: On appeal, the appellants must cite to the record to support their arguments.

When plaintiffs appeal following a jury trial, they are required to submit legal citations and to cite to the record in support of the arguments that they make. In the Hernandez case, the appeals court found that the appellants failed to cite to the record or to include legal citations to support most of their arguments. The court also noted that appellants who claim that the court abused its discretion must make claims that are cognizable.


The court reviewed the appellants’ argument that allowing testimony about Hernandez’s use of methamphetamines amounted to an abuse of discretion. The appeals court stated that the testimony was allowed so that the jury could assess the relationship that Jonathan had with his parents to help them to assess the noneconomic losses that they suffered from his death. The trial court judge instructed the jury that it could only consider the drug use by the mother to evaluate the quality of the relationship rather than for any other purpose. The Court of Appeals found that it was not an abuse of discretion since the court provided this instruction and since it was relevant for establishing the relationship that Hernandez had with her son.

The court next reviewed the appellants’ argument that allowing the testimony of a retired police officer about Calderon’s impairment was an abuse of discretion. The appellants argued that the officer only had a high school diploma and was not qualified to testify about the impairing effects of benzodiazepines. The appeals court found that while the officer was not certified in California, he had worked as a police officer for 25 years in Florida. The officer testified that he relied on national training standards to give his opinion about whether Calderon was impaired at the time of the accident. Finally, the court reviewed the argument that the trial court erred in failing to grant a new trial. The appeals court found there was no abuse of discretion.


The appeals court affirmed the trial court’s ruling, meaning that the plaintiffs’ award of $250,000, which would be reduced by Jonathan’s comparative negligence of 80%, would stand.

Contact an experienced Los Angeles accident lawyer

When people take personal injury cases to trial, it is important that they work with experienced injury attorneys. If a trial lawyer fails to make timely objections or to properly raise arguments on appeal, the ultimate recovery could be harmed. Contact Steven M. Sweat APC today for a consultation about your potential injury claim.


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