Facts

At 10 a.m. on a dry, overcast morning, plaintiff Jerry Curtis was riding his bike around a blind curve on Industrial Way, in the city of Brisbane. He saw a long slot-shaped hole in the street, and rode onto the cement gutter area to avoid it. As the road straightened, he saw a forklift sitting halfway in the Statue Factory's driveway. He glanced to his left and saw nothing, so he directed his bicycle to his left to avoid the forklift. As he did, the bicycle's tire struck an un-marked ridge. The ridge was the same gray color as the asphalt and sky, so it was difficult to see. There were no "Rough Road" or "Uneven Pavement" signs, nor any paint to warn people of the ridge's presence. Plaintiff took a hard fall from his bicycle and was injured. He filed suit against the city, Statue Factory, and Universal Building Services and Supply Co. (UBS).

PLAINTIFF'S CONTENTIONS:
Plaintiff introduced evidence that Brisbane's City Council had accepted an easement to construct, re-construct, maintain, and use Industrial Way in 1969. Thereafter, the city exercised control over the street by putting up street signs, painting the curbs, issuing parking tickets, and hiring UBS to sweep the street and report hazards. After plaintiff reported his injury, the city repaired the hole and the ridge. A city Dept. of Public Works employee who testified that he had seen the ridge for 17 straight years before the accident, while reading the Statue Factory's water meter.

Plaintiff's civil engineering expert testified that Industrial way was a public street, subject to the control of the city. He opined that the city had failed to discharge its duties with respect to pavement inspection, repair and management in a reasonably careful manner. He stated that the hazardous and unsafe condition of the pavement on Industrial Way had potential for causing injury the day of plaintiff's accident, and long before it. Another of plaintiff's experts, a land surveyor, also testified with respect to the ownership of Industrial Way.

Plaintiff's human factors expert testified regarding plaintiff's cycling skills, and his exercise of due care. The expert provided reasons why the hole and ridge were dangerous conditions likely to cause injury to bicyclists using due care. The expert also testified regarding the causes of plaintiff's fall and injury.

Plaintiff's orthopedic surgery expert also testified regarding the causation of plaintiff's injury, diagnosis, treatment, recovery, residual ailments, and several other issues. Defendant's treating physical therapist also testified regarding plaintiff's diagnosis and treatment, prognosis, and causation of plaintiff's injury.

Plaintiff also claimed that he had permanent atrophy, weakness and limited mobility of his left hip muscles. He contended that he would always have a slight limp. He further claimed that he was unable to jog, and that his ability to ride his bike was limited by muscle damage, scar tissue, and an external rotation contracture caused by the manner in which his fractured hip had healed.

DEFENDANT'S CONTENTIONS:
Each of the three defendants disputed liability and blamed each other for plaintiff's injury. Each also argued that plaintiff was 50 to 75 percent at fault for not seeing the ridge, stopping his bike, and walking his bike around it. They also claimed that plaintiff's fracture had healed, and that there was no risk of osteo-necrosis of the femoral head or arthritis. They contended that his leg length had equalized, and that plaintiff was able to ride his bike.

Settlement Discussions

Plaintiff originally demanded $400,000 from the city. The city offered $100,000 before suit was filed. The offer was withdrawn once the suit was filed. Before mediation, plaintiff demanded $730,000 against the defendants, none of whom made an offer in return.

Specials in Evidence

Plaintiff incurred $53,000 in hospital bills and $4,145 for physical therapy treatment. Plaintiff did not seek lost income because he was retired.

Damages

Plaintiff sought damages for his pain and suffering.

Injuries

Plaintiff sustained a displaced fracture of the lower neck of his left femur, requiring an open reduction/internal fixation surgery with a metal plate and screws.

Result

At mediation, the parties settled for $250,000. The city paid $220,000, Statute factory paid $20,000 and UBS paid $10,000.

Other Information

The city had moved for summary judgment, arguing that it had no legal duty to maintain the street because it neither owned the street, nor accepted the street into its system of city streets. The motion was denied.