Facts

On Feb. 21, 2019, 22-year-old Josh Howard was struck and killed by a vehicle which had departed its lane while walking on the shoulder of southbound Highway 9, in Santa Cruz County. The width of the available shoulder at the impact location was 34", and bordered by a three-foot concrete retaining wall. The shoulder and adjacent retaining wall were constructed by Caltrans in 1990 as part of roadway expansion project. At that time, design standards called for a shoulder width of at least 8 feet. The expansion project contained designs calling for only a four-foot shoulder. Over time, due to restriping, the actual shoulder width decreased to less than three feet. The state was unable to establish that a design exception was ever requested or approved to deviate from the established design standards.

Expert analysis established that the vehicle driver began to drift from the roadway approximately 110 feet and three seconds prior to impacting the pedestrian.

Post-accident the vehicle driver was evaluated by CHP and found unimpaired. Subsequent blood testing, however, revealed residual amounts of methamphetamine in the driver's system. Caltrans was precluded from introducing evidence of this blood test as their retained toxicologist was unable to opine such affirmatively contributed to the collision. Caltrans was also precluded from arguing at trial that the pedestrian was comparatively at fault for walking along such an obviously narrow shoulder due to their failure to assert such defense previously in written discovery.

PLAINTIFF'S CONTENTIONS: Plaintiffs, the parents of the decedent, asserted that Caltrans constructed and maintained a dangerous condition of public property by and through the substandard shoulder. Evidence was introduced that Caltrans had for many years been aware that the shoulder configuration deviated from design standards and that there was community concerns expressed to Caltrans about the safety of this particular area, which served as the primary walking route for local students and other pedestrians. Plaintiffs further contended that multiple design alternatives could have been implemented by Caltrans to increase the safety of this corridor, including the installation of rumble strips to alert drivers of an unintended lane departure. Based on the amount of time and distance from when the vehicle driver began to leave the roadway, with normal perception/reaction time, the presence of such rumble strips likely would have prevented this collision.

DEFENDANT'S CONTENTIONS: Caltrans maintained that the roadway was not dangerous, based on the fact that there were no prior vehicle/pedestrian accidents in the subject location prior to this incident, and that various design alternatives were unavailable due to traffic volume and adjacent residences.

Settlement Discussions

Plaintiff made a CCP 998 demand of $2 million. Caltrans made a CCP 998 offer of $500,000, raised to $750,000 during trial.

Injuries

Wrongful death.

Result

Net verdict of $9,432,500 after apportionment, plus costs of $266,687.

Other Information

Caltrans' motions for new trial and judgment notwithstanding the verdict were denied on May 26, 2023.

Deliberation

four days

Poll

12-0 (dangerous condition), 10-2 (apportionment and damages)

Length

three weeks