Update on Sea Cliff Trench Collapse

SFGATE this afternoon reports that proper permits had not been pulled for the Sea Cliff construction site at which a trench collapsed and injured a worker. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/14/BARR1EED02.DTL&tsp=1

The story also includes a photo that shows just how sandy - and unstable - the soils at the site were.

http://www.sfgate.com/cgi-bin/object/article?f=/c/a/2010/07/14/BARR1EED02.DTL&o=0

The injured worker may still be prohibited from suing his employer pursuant to the "exclusive remedy rule" in California workers compensation law. Nevertheless, the lack of permits for such a large scale project is a strong indication that other parties involved in the project, i.e., the owner or subcontractors, may also have been negligent.

Worker Hurt In Sea Cliff Construction Accident - Eerie Similarities To Case Handled by Walkup Office

Yesterday's SFGATE.com reports a deck under construction in the Sea Cliff neighborhood of San Francisco collapsed and injured a worker in his mid-30s. The accident apparently caused him to get buried and it took rescue crews four hours to dig out this unfortunate fellow. http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/14/BAV51EDV5H.DTL

http://www.sfgate.com/cgi-bin/object/article?f=/c/a/2010/07/14/BAV51EDV5H.DTL&object=/c/pictures/2010/07/13/ba-trapped14_ph1_0501964144.jpg

This photo shows how sandy the soils were at the construction site:

http://www.sfgate.com/cgi-bin/object/article?f=/c/a/2010/07/14/BAV51EDV5H.DTL&object=/c/pictures/2010/07/13/ba-trapped14_0501964160.jpg

That is no surprise given that many of the luxury homes in Sea Cliff were built on sand dunes. Any soils engineer will tell you that sandy soils are inherently unstable and consequently building and safety codes require contractors to "shore" the walls of an excavation site to prevent collapses and cave-ins. The SFGATE story does not report whether the site of this accident was properly shored.

There are eerie similarities between this accident and a case that the Walkup firm handled a few years ago. On September 16, 2002, construction worker Julio Magana, a father of 3 in his early 30s, was working on the remodel of a house located on El Camino Real. The home stood on the bluffs overlooking the Bay and Golden Gate Bridge. The entire property rested on unstable sandy soil. Mr. Magana was digging a sandy trench along between the house's foundation and an old retaining wall. That wall collapsed and severely injured him.

It took rescue crews an hour to extricate Mr. Magana. He spent more than 3 months in the hospital, underwent about 30 procedures and was rendered permanently disabled from working.

Mr. Magana's employer, the main contractor for the remodel, had not shored up the trench -- a blatant violation of the safety code. However, Magana could not sue that company because California law generally prohibits an employee from suing his employer for workplace accidents. Instead, the injured employee can only get workers compensation benefits (which are often meager) from his employer. This is known as the "exclusive remedy rule."

Mike Kelly and Matt Davis were asked to investigate Mr. Magana's potential claims against someone other than the contractor. They learned that at the time of the accident employees of a subcontractor, hired to do excavation work in the back yard, were driving two massive machines, loaded with concrete and sand, from the backyard to the front and back, along a neighbor’s driveway and directly above and next to the sandy trench in which Mr. Magana was digging. These machines were so large they made the sandy trench “tremble” as they passed. The breakthrough in the case occurred when an employee of that subcontractor testified at deposition that, just an hour or so before the collapse, he told his supervisor that Mr. Magana was working in a trench that should be shored but was not. The supervisor told the employee to get back to work and did nothing to make conditions safe for Mr. Magana. Following that deposition, Mike and Matt settled with the subcontractor for over $2 million. They obtained other relief for Mr. Magana that pushed the value of his settlement to over $2.7 million.

Walkup lawyers get $12.2 M verdict

Doug Saeltzer and Rich Schoenberger obtain a large jury verdict against the State of California in a "conservative" jurisdiction.

At about 8:30 p.m. on March 28, 2006, Emily Liou, 17, had crossed six of the seven lanes of El Camino Real in Milbrae when a slow-moving Toyota sedan, driven by a woman with her child in the back seat, hit and knocked Emily to the pavement. She sustained a severe brain injury that, according to her doctors, has left her in a permanent vegetative state. Emily was walking home from signing Karaoke with some friends when the accident happened. She was looking forward to seeing her parents who had just picked up her prom dress.

Emily was wearing dark clothes and an iPod. The driver told police she never saw Emily until impact. The physical evidence confirmed the car was going well below the 35 mph speed limit at the time of the accident.

Emily was struck in a marked crosswalk located at the crest of a rise in the road. Consequently, the crosswalk does not come into view until a driver is about 100 feet away. Additionally, the crosswalk is located at an "uncontrolled" intersection - meaning that there are no lights or stop signs controlling vehicular traffic going through it. El Camino Real, which Caltrans calls State Route 82, is among the busiest roads on the Peninsula. More than 26,00 cars pass through this intersection daily.

The Litigation

The Walkup firm pursued discovery against Caltrans for three years. This included over 40 depositions and motion to compel production of traffic collision reports. Through this discovery, the firm learned that three pedestrians had been killed in this same crosswalk in the 15 years years before Emily's accident. The firm also opposed a motion for summary judgment (dismissal of the lawsuit) brought by Caltrans. The court denied that motion and ordered the case to trial.

The Trial

The case went to trial in San Mateo County Superior Court. Local trial lawyers consider the makeup of the jury pool in that courthouse to be the most conservative in the Bay Area.

Rich and Doug presented evidence that marked crosswalks at uncontrolled intersections are dangerous in general because they give pedestrians a false sense of safety. In fact, studies have shown since the early 1970s that pedestrians are more likely to be injured in marked crosswalks at uncontrolled intersections than in unmarked crosswalks. A 2001 Federal Highway Administration study recommended against marked crosswalks at busy uncontrolled intersections, unless substantial improvements were added, such as pedestrian-activated signals. Simultaneous with the FHA study's release, Caltrans adopted a policy of protection for pedestrians so as to reduce the astonishing pedestrian death rate in this state. Notwithstanding that policy, Caltrans never studied the pedestrian accident rate on El Camino Real, even though it is one of the busiest roads in its network.

Doug and Rich also presented evidence that the pedestrian accident rate at this crosswalk dramatically exceeded -- by a factor of almost 20 -- the rate identified as unacceptable in the 2001 FHA study. They also presented a nighttime visibility study that showed a pedestrain in this crosswalk is not visible to an approaching motorist until less than two seconds before impact.

In its defense, Caltrans showed that there had only been three pedestrian accidents at this crosswalk over the past ten years despite the fact that approximately 90 million cars had driven through the intersection. Rich and Doug argued in response that Caltrans followed an outdated accident monitoring system that focused on vehicles, and ignored pedestrians. They introduced evidence of a 2001 Caltrans Deputy Directive, as well as Vehicle Code 21949 instructing Caltrans to pay more attention to pedestrian safety issues.

The Verdict

Jurors found for Emily and awarded her $12.2 million in damages. They apportioned fault 50% to Caltrans, 30% to the driver, and 20% to Emily.

Dog Attack in Golden Gate Park

Today's SFGate reports that a pack of dogs attacked and bit three people in Golden Gate Park:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/01/BA531E82BU.DTL&tsp=1

This is not the first time a dog injured someone in San Francisco's crown jewel park. The Walkup firm represented a SF Police Mounted Patrol Officer whose horse was attacked by a pit bull in Golden Gate Park in 2003. That officer was thrown when the dog bit the horse's legs and he hurt his back. The case settled for $225,000.

California law imposes strict liability on dog owners when their animals bite and injure people. "Strict liability" means that the owner is legally responsible to compensate the victim of the dog attack, even if the owner had no reason to believe or suspect that their pet might bite the victim. The relevant part of the “dog bite” statute, Civil Code § 3342, provides:

The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

Additionally, a leash ordinance applies to most areas of Golden Gate Park. Thus, any owner who lets his dog off the leash in those parts of the park is also violating the law.

Muni West Portal Crash - Claims and Lawsuits

The one year anniversary of the West Portal Muni crash (July 18, 2009) approaches. As you may recall, one streetcar plowed into the rear of another that was stopped in the station. Passengers on both trains got hurt.

Photo from: http://cdn.abclocal.go.com/images/kgo/cms_exf_2007/news/local/san_francisco/7527903_448x252.jpg

Station video cameras captured the crash and the footage shows that tremendous forces were involved. Here's the video on YouTube: http://www.youtube.com/watch?v=kb9BIj71zvg

A recent article in the SF Examiner gives an update on the status of the claims and lawsuits: http://www.sfexaminer.com/local/Muni-crash-proving-costly-for-SF-97366304.html

The Walkup firm represents 11 of the 57 persons who have filed injury claims against the City because of the crash, including those who suffered the most serious injuries. We've settled three cases and filed lawsuits in the rest. Yesterday, the San Francisco Superior Court denied the City Attorney's request to put those cases "on hold" for several months, and instead ordered Muni to respond to discovery within two weeks. Muni has yet to formally accept legal responsibility for the crash.

Truck Hit and Injures Another San Francisco Bicyclist

http://missionlocal.org/2010/06/cyclist-hit-at-capp-and-16th-streets/

Here's another bad result for a San Francisco bicyclist. Several years ago, Mike Kelly obtained a $15 million settlement on behalf of a woman who was hit and run over by a right-turning semi-truck.

Bike Valet Offered at Saturday Ferry Building Farmers' Market

Everyone loves visiting the Farmers Market held every Saturday at the Ferry Building. Not only is the supply of farm-fresh abundant, it is local, organic, and a San Francisco favorite.

Starting last Saturday, June 5th, the San Francisco Bicycle Coalition began offering valet parking for bicyclists. The goal is to increase access to the market by way of eco-friendly transportation.

The process is simple. Just ride your bike to the Market, give it to an attendant, get a claim ticket, shop, then grab your bike before leaving. While you're away, SFBC members pay careful attention to your bike.

Walkup, Melodia, Kelly & Schoenberger is pleased to be among the sponsors for this service, allowing it to be offered free of charge to bicyclists. Our firm has long been a strong supporter of the Bicycle Coalition and its mission of increasing bicycle transit in the City.

As explained on the Coalition's website, it offers similar bicycle valet stations at events including Hardly Strictly Bluegrass, the Outside Lands Festival, and all Giants home games.