Minor Pedestrian Struck and Killed in Crosswalk
PREMISES LIABILITY
Dangerous Road/Public Property
WRONGFUL DEATH MINOR
SAN BERNARDINO COUNTY SUPERIOR COURT
Nelson v. Kent, Docket number: CIVRS913680, Rancho Cucamonga. Judge: Barry L. Plotkin. Trial type: Bench. Verdict/Judgment date: 8/5/2011.
DECISION: DEFENSE
A Motion for Summary Judgment was filed and granted on behalf of defendant City of Rancho Cucamonga based on governmental immunities, including lack of a dangerous condition of public property, lack of causation between the dangerous condition and the accident, and no notice on the part of defendant.
The court felt that plaintiffs could not support the argument that the in-roadway warning light system for the crosswalk intensified the risk for users. Therefore, the element of proximate causation between the physical condition of the crosswalk or the alleged dangerous condition and the injury was not established. Subsequently, plaintiffs did not meet the elements required by Government Code section 835 to show a dangerous condition of public property.
Defendant Kent settled for insurance policy limits of $ 15,000. Defendant County of San Bernardino was dismissed from the action.
COUNSEL
Plaintiff: Greg K. Hafif, Law Offices of Herbert Hafif, Claremont. Herbert Hafif, Law Offices of Herbert Hafif, Claremont.
Defendant: Gregory L. Rippetoe, Rippetoe Miles, Irvine. Laura A. Miles, Rippetoe Miles, Irvine.
FACTS/CONTENTIONS
According to defendant: Decedent Grant Nelson, age 13 at the time of his death, was struck and killed by defendant Sandra Kent, the driver of a 1999 Chevrolet Suburban, as he was crossing the street at the intersection of Jasper Street in defendant City of Rancho Cucamonga, California.
Plaintiffs Dale and Jeanne Nelson, decedent's parents, alleged that the intersection in question constituted a dangerous condition of public property due to the lack of traffic control signals, stop signs, properly marked crosswalks, and inoperative streetlights. Plaintiffs alleged that defendant City of Rancho Cucamonga failed to change or repair the condition, despite having notice of its existence and that the timing and operation of an in-roadway crosswalk warning light system created a dangerous condition.
Defendant City of Rancho Cucamonga contended that the in-roadway crosswalk warning system was operable on the night of the accident and had been activated by pedestrians utilizing the crosswalk moments before decedent entered the intersection. The in-roadway lights were illuminated as the pedestrians crossed, but the lighting system properly shut off when the pedestrians exited the crosswalk on the opposite side. Defendant further contended that decedent was not using the crosswalk when he entered the intersection, that decedent failed to stop at the stop sign, and that decedent proceeded directly into the center of the intersection and failed to yield the right-of-way. Decedent further contributed to the accident by failing to comply with the Vehicle Code.
Defendant additionally contended that no dangerous condition of public property existed because plaintiffs were unable to demonstrate a physical defect in the crosswalk or that decedent was utilizing the crosswalk with due care. A dangerous condition of public property is only such if it creates a substantial risk of injury when used with due care.
Further, defendant Sandra Kent was under the influence of alcohol at the time of the incident. The direct cause of the accident was the conduct of decedent or the intervening criminal conduct of a third party, and plaintiffs were unable to show that the claimed dangerous condition was causally connected to the specific criminal conduct.
Defendant also contended that it did not have notice, actual or constructive, of the alleged dangerous condition because there were no prior pedestrian versus automobile accidents in the crosswalk in which this accident occurred.
CLAIMED INJURIES
According to defendant: Death.
CLAIMED DAMAGES
According to defendant: $5,890 medical; $ 1,278 funeral costs; $ 11,340 lost income for Jeanne Nelson.
SETTLEMENT DISCUSSIONS
Not reported.
EXPERTS
Plaintiff: Robert F. Douglas, P.E., civil engineer, Field & Testing Engineering Inc., Long Beach (562) 743-7230.
Defendant: Not reported.
COMMENTS
According to defendant: Defendant Kent was insured through the policy of defendant Michael Fernandez, the owner of the vehicle, whose carrier was Explorer Insurance Company. Defendant City of Rancho Cucamonga was self- insured.
WEST TRIALS DIGEST (October 10, 2011)
