Estate of Branden Atherton, et al v. Whole Foods Market Group, Inc., et al.

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MOTOR VEHICLE: $1.5 MILLION

Injuries/damages: Branden Atherton sustained fatal injuries in the accident including a C-2 fracture, a pelvic fracture, bilateral rami acetabular and pubic fractures, and an injury to the right internal iliac artery.

Case name: Estate of Branden Atherton, et al v. Whole Foods Market Group, Inc., et al.

Court: Chippewa County

Case no.: 05-CV-450

Judge: Frederick A. Henderson, Acting Chippewa County Circuit Judge

Plaintiffs’ firm/attorneys: Daniel A. Rottier, Anne MacArthur and Joseph M. Troy, Habush Habush & Rottier S.C., Madison

Defendants’ firm/attorneys: Daniel A. Haws and Stacy R. Ertz, Murnane Brandt, Minneapolis, Minnesota, for Whole Foods Market Group, Inc., and Ace American Insurance Company; Michael Knippen, Traub Lieberman, Chicago, Illinois, for Westchester Fire Insurance Company; Jay R. Starrett, Michael Rosenberg and Thomas Gonzales, Whyte Hirschboeck, Milwaukee, for Chippewa Trails, Inc., and Lancer Insurance Company

Amount of settlement: $1.5 million total settlement for Estate’s claim for pre-death conscious pain and suffering and parents’ claim for wrongful death/loss of society and companionship which is subject to a statutory damages cap of $350,000

Special damages: Medical specials: approximately $60,000, settled separately; wage loss: Plaintiffs did not pursue a pecuniary injury claim.

What each defendant paid: The settlement preserves Whole Foods right to seek contribution from Chippewa Trails.

Date of accident: Oct. 16, 2005

Place: I-94 Westbound by Osseo

Specific negligence: This lawsuit arises from a collision on I-94 Westbound when a semi-tractor-trailer combination unit owned by Whole Foods Market Group, Inc., and operated by its employee, Michael J. Kozlowski, went off the shoulder of the interstate and then overturned when Kozlowski attempted to pull back on the roadway. The semi blocked both westbound lanes of I-94 and both shoulders of the roadway. Soon after the semi rolled, a Chippewa Trails tour bus owned by Chippewa Trails and operated by its employee, Paul Rasmus, collided with the underside of the overturned semi. The tour bus was transporting Chippewa Falls High School students, teachers and chaperones from a band competition in Whitewater back to Chippewa Falls. Five people were killed, including Branden Atherton, and many others were injured.

Branden Atherton was ejected from the bus on impact. He was awake and conscious at the scene and survived approximately two hours after the crash. He later died of his injuries after being transported to Luther Hospital.

Plaintiffs contended Kozlowski was negligent in the operation of the semi. Whole Foods admitted his negligence but contended that Chippewa Trails and its employee, Rasmus, were also negligent, because of Chippewa Trails’ failure to maintain the bus brakes in proper working order and for Rasmus’ failure to see the semi in time to avoid the accident