Covina Woman Testifies in Negligence Case Against Local Business

By BILL HETHERMAN / City News Service

 In a video deposition shown to a jury Wednesday, a young Covina woman said "everything just went black'' in describing an accident in which a jet ski on which she was a passenger collided with a boat in Riverside County in 2008, leaving her with permanent brain damage.

Fabiola Esparza, now 20, often seemed confused and hesitated before answering many of the questions during the July 2011 deposition. But her perky, grinning demeanor also put smiles on the faces of many of the jurors tasked with deciding the negligence case filed on her behalf in January 2010 in Los Angeles Superior Court.

The complaint names as the primary defendants Polaris Industries Inc., the manufacturer of the 2001 Virage model jet ski on which she was a passenger, and Bert's Mega Mall in Covina, where the jet ski was purchased by a friend of her family in June 2001.

The suit alleges a steering defect in the jet ski made it impossible for the operator to avoid the collision with the boat, while Polaris attorneys say the jet ski did not have a steering defect. They say its teenage operator, Andrew Gutierrez, was driving too fast and that the boat's operator, Douglas Lane, had a blood-alcohol level nearly three times the legal limit.

"Was Andrew driving it fast?,'' Esparza was asked by Polaris attorney Robert Miller.

"Well, I don't want to blame him, but I told him, and they told us not to go fast,'' Esparza said.

When she urged him to slow down, he replied, "But we're having fun,'' according to Esparza.

"I'm like, 'Yeah. But something might happen,' '' Esparza said. "And then that guy came and he hit us with his boat. And then after that I know I went flying and flying and I hit my head. After that I have no clue what happened.''

She said she, Gutierrez and the other passenger, Marlon Mata, were talking just before the collision. She said she never saw the other boat.

"Everything just went black,'' she said. 

Esparza said her life has changed since the accident.

"Did I tell you I got straight As?,'' Esparza asked. "I was very smart. My brothers and sisters asked me to do their homework. I said, `No, do it yourself.' ''

Esparza said she had been less proficient in sports. She said she dabbled in soccer and played softball in middle school for a team called the Mets. But despite her lack of softball skills, her team prevailed over opponents more often than not, she said.

"We won because they (played) really bad,'' she said.

Esparza said one errant hit of hers reached an unintended target.

"I think I hit a girl in her forehead,'' she said.

 Since the accident, Esparza uses a wheelchair and needs constant help from family members for basic needs, and her future medical costs will top $42 million, according to deposition testimony by economist Bernard Pettingill that was read to jurors last week.

Asked by the attorney questioning her to describe the colors of his tie, Esparza pointed to several people in the room and recited the shades of their attire.

Esparza said her favorite restaurant is Olive Garden. She also said she still works as a pioneer for her Jehovah's Witnesses congregation.

"We go preaching, we tell people about our church,'' she said.

In other testimony today, Octavio Soto, who witnessed the July 4, 2008, crash, said he went to the aid of Esparza and her two friends as they floated in the Colorado River after being ejected from the jet ski.

"Two of them were floating face-down and one was kind of out of it,'' Soto said. ``I believe I yelled for help and I jumped in the water. I pulled them by their vests and I pulled them back to my jet ski.''

 Soto was called as a witness by lawyers for both Polaris Industries and
Bert's Mega Mall.

The lawsuit alleges that the accident could have been prevented by a $30 investment by Polaris Industries. Gutierrez was unable to turn the craft after he let up on the throttle to try and avoid colliding with a 2004 Sea-Doo Utopia 185 jet boat driven by Lane, according to the suit.

Lane, also a defendant, was towing his three grandchildren in an inflatable device tied behind his boat. Lane, now 68, previously testified he turned his boat in front of the jet ski because he thought the smaller vessel would otherwise hit his grandchildren.

Esparza went to the river for a holiday outing with about 20 members of her congregation.

She and fellow passenger Mata, both then 15, were riding on the jet ski driven by Gutierrez, then 17, near Mayfield Park and Preserve north of Blythe.

 Soto testified that he ``saw the boat make a sharp left and I heard the loud bang. It looked like it was going to tip over.'' He said that after he swam to Esparza and her friends, he struggled at first to hold onto them because their life vests were slippery. Eventually, other people on the river came over and loaded the teens onto their boats, Soto said.

Esparza's injuries were apparent, the witness said.

"She had a gash in the side of her temple,'' he said.

Gutierrez and Mata suffered less serious injuries.

Polaris, based in Medina, Minn., stopped making jet skis in 2004. The company now makes all-terrain vehicles, snowmobiles and other vehicles.