Facts

On Dec. 13, 2007, at 10:30 p.m., plaintiff Douglas Gunderson was a passenger in a vehicle being driven by a friend northbound on Mussey Grade Road. As the driver approached State Route 67, she thought the roadway continued straight ahead and failed to negotiate a left-hand curve. The vehicle plunged over an 8-foot embankment to a ditch below.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that in 1992, the State of California (dismissed on summary judgment) realigned Mussey Grade Road as it approached State Route 67 in Ramona. Mussey Grade was originally constructed to continue straight ahead where it intersected State Route 67. The road was realigned in 1992 to create a left-hand curve, partially in response to numerous accidents involving vehicles attempting to merge onto State Route 67 from Mussey Grade Road. The realignment created a T-intersection.

Plaintiff contended the realignment created an optical illusion for nighttime drivers headed northbound on Mussey Grade Road as they approached State Route 67. The roadway and surrounding area is extremely dark without any street or other lighting. As drivers are within 1,500 feet of the intersection, they see a traffic signal and flashing yellow lights approximately ½ mile ahead (the lights are actually at the intersection of State Route 67 and Dye Street) and the headlights/taillights of traffic on State Route 67 directly ahead of them. The signal and lights can make it appear as though Mussey Grade Road continues straight ahead when it actually curves to the left.

Plaintiff further contended that this optical illusion created a dangerous condition for nighttime drivers.

Plaintiff maintained that the County had notice of the dangerous condition at least by 2003 via a Traffic Advisory Committee which had requested the county take action in response to a "pattern of collisions" at this exact location. Although the County did perform work on the intersection (repainting the center, right and left-edge lines, adding a Stop Ahead legend on the road, adding raised reflective pavement markers in the curve and adding two additional bright yellow Chevrons - for a total of three - in the curve), plaintiff contended that the county should have installed an advance Curve Ahead Warning sign with flashing yellow lights to attract a driver's attention to the curve and away from the lights they saw in the distance.

Plaintiff alleged one of the three Chevrons in the curve was missing at the time of this accident. There had been at least six reported collisions at this location over the seven-year period before plaintiff's accident and plaintiff contended that there had been as many as 30 or more unreported accidents.

Finally, plaintiff contended that when the State realigned Mussey Grade Road, its As Built Plans called for the installation of an Advance Curve Ahead warning sign with a 25-mph advisory speed plate. The warning sign was either never installed or had been installed, but knocked down and never replaced before this accident.

DEFENDANT'S CONTENTIONS:
Defendant contended the driver of plaintiff's vehicle was solely responsible for the accident, because she failed to pay attention to the roadway; failed to observe a Stop Ahead warning sign and Stop Ahead warning legend on Mussey Grade Road as she approached the intersection; and failed to observe the center yellow lines and right edge line curving to the left, and failed to see two bright yellow Chevron warning signs in the curve.

The County further contended that the driver had just turned onto Mussey Grade Road from State Route 67 minutes before the accident and should have remembered the road curved to the left and did not continue straight ahead when she headed in the opposite direction minutes later.

Finally, the County claimed it was immune from liability by reason of the design immunity defense.

Settlement Discussions

Plaintiff served a CCP 998 as against the County of San Diego for $599,999 in April 2010.

Specials in Evidence

$338,000 $842,000 past and future $326,160 per life care plan

Damages

Plaintiff suffered a blowout fracture of L1 with fusion surgery. He suffers near constant back pain and is permanently incontinent.

Result

The case settled for $1.6 million. The case was settled following a mediation and follow-up negotiations by Thomas Sharkey, Judicate West, San Diego. In addition, the County agreed to submit a Traffic Engineering Service Request to the Department of Public Works to "recommend any improvements they deem appropriate" at the accident location.