By City News Service
A girl who survived a fiery crash that killed three of her family members in Sunland in 2009 is entitled to about $130 million from a truck driver and his employer, an attorney for the young plaintiff told a jury Monday.
Lawyer Brian Brandt made the recommendation during his closing argument in trial of a negligence suit brought on behalf of Kylie Asam, who is now 13. She was 9 years old when she and one of her brothers, 11-year-old Blaine, climbed out of a window of the family's SUV after it crashed into the back of a big rig parked along the shoulder of the Foothill (210) Freeway in the early morning darkness.
The girl's parents and another brother died in the fire. After Blaine died in June, Kylie became his successor-in-interest and the only surviving plaintiff.
Brandt said driver Rudolph Ortiz, who worked for Watsonville-based Bhandal Bros. Trucking Inc., parked the truck on the right shoulder to sleep despite written warnings that stopping there was only allowed in emergencies.
"He violated simple highway rules and as a result three members of the community are dead," Brandt said.
Attorney Raymond McElfish, on behalf of Bhandal Bros. and Ortiz, said he would not try and minimize the young plaintiff's losses.
"There is no question that what happened that night to this family is heartbreaking," McElfish said. "There is no other way to describe it."
But McElfish suggested that no damages be rewarded, saying the plaintiffs' attorneys had not met their burden of proof. He said the evidence shows the SUV's driver, Michael Asam, fell asleep at the wheel . He said Ortiz violated no law because he was parked on the dirt to the right of the shoulder.
Michael Asam, 41, his 40-year-old wife, Shannon, and their 14-year-old son, Brennen, were killed at about 5 a.m. on Nov. 22, 2009, when the 2007 GMC Yukon in which they were traveling struck the rear of the big rig. Kylie Asam's paternal grandfather, David Asam, filed a wrongful death lawsuit on their behalf in October 2011. Ortiz parked his truck on the same shoulder Asam tried to reach after he struck debris on the freeway and tried to stop.
Asam never saw Ortiz's truck in the darkness, according to the plaintiffs' attorneys.
According to Brandt, Ortiz's trailer lights and his emergency flashers were off when the impact occurred. He also said Ortiz never put out his emergency reflectors. All of the actions were in violation of existing laws governing big rigs, Brandt said.
Although California Highway Patrol officers did not find any debris on the road despite shutting down the freeway and walking across the concrete, Brandt said a dent in the rim of one of the SUV's tires was proof that Asam hit something while driving that forced him to try and stop.
Ortiz could have left the freeway at numerous locations to sleep and was seconds away from the Sunland Boulevard exit, Brandt said. Instead, Kylie and Blaine were helpless as their family members perished before them, Brandt said.
"I couldn't imagine what these children went through," Brandt said. "These children watched their family burn to death."
But McElfish said the dent in the rim was probably caused by the weight of the big rig on top of the SUV. He also said Ortiz's primary reason for stopping was to take medication for a severe headache and that constituted an emergency.
He said the collision happened so soon after Ortiz stopped that he never would have had time to put out his emergency reflectors.
McElfish said the inability of the plaintiff's lawyers to come up with proof there was debris on the road, plus the lack of other evidence, supports the defense theory that Asam was not awake when the SUV hit the big rig at about 40 mph.
"This is a driver asleep at the wheel," McElfish said. "You don't do what this driver did unless you're not awake."
The Asams were headed to Oregon to visit the children's grandparents for Thanksgiving.
Shannon Asam was a longtime legal assistant and her husband worked as a Riverside Public Utilities power line technician.
Kylie now lives with an aunt.