Facts

On Dec. 16, 2010, Delia Gonzales, 73, was walking northbound in the crosswalk at the intersection of Bellevue and Linden in the City of Atwater. She had a green light for her direction of travel as a pedestrian. Defendant Michelle Carrizales was also headed northbound on Linden intending to turn left onto Bellevue when her vehicle struck Delia Gonzales. Carrizales also had a green light for her direction of travel.

City of Atwater had originally installed a permissive phasing of lights at this location, which then allowed both south and northbound traffic on Linden to proceed at the same time with traffic yielding to oncoming traffic before making a left or right turn. This intersection and the phasing was installed and completed as of December 2001.

Gonzales sustained fatal injuries. Plaintiffs are Gonzales' husband, Genovevo Gonzales, and her five adult children.

PLAINTIFF'S CONTENTIONS:
Plaintiffs alleged that the subject intersection was in a dangerous condition at the time of the incident. Plaintiffs contended the permissive phasing was never fully evaluated by the city or its vendors when it was installed. In December 2002, a left-turning vehicle struck an individual who was on a bicycle in the crosswalk at the same location. That driver indicated that she was waiting for oncoming traffic and was focused on that traffic before instituting her left turn. She was unaware that pedestrians were in the crosswalk when she made a left turn and did not see the individual on the bicycle before she struck him. Shortly after the cyclist's death, the City of Atwater hired an outside traffic engineer to create a new traffic-phasing plan that was approved and paid for by the appropriate City of Atwater representative. That traffic engineer had to be hired from outside of Atwater because it had lost its traffic engineer back in early 2002 and had not replaced that position. The City of Atwater did not have an engineer on staff from March 2002 to March 2008. The individual in charge of the engineering department, a non-engineer, had directed the outside vendor to prepare a new traffic phasing, which was called "split" phasing.

The effect of the split phasing plan was that northbound traffic would have a green light and the pedestrian traffic would have a red light, such that pedestrians could not get out into the intersection and be in conflict with left turning vehicles. Southbound traffic would have a red light, while northbound had a green. When northbound had a red light, then southbound Linden would get a green light, which would also allow for pedestrian travel and therefore not expose pedestrian traffic to left turning vehicles. This vendor engineer indicated that his plan was appropriate and safe and would provide safer travel for the traffic and the pedestrian safety would be "part of that." This plan was paid for and delivered to the City of Atwater.

The plan was never instituted or put into effect. In August 2008, another pedestrian was killed in the crosswalk at precisely the same location that the decedent was killed two years later. This person was also struck by a left turning vehicle because the permissive phasing was still in effect and had not been changed to split phasing. That individual who was driving testified at trial he was waiting for oncoming traffic and was focused on that traffic before instituting his left turn when he thought it was clear, and didn't see the pedestrian. Testimony at trial was that the engineer who had been hired in March 2008 was never told of this August 2008 incident and death. He did not become aware of this traffic fatality until after the death of Delia Gonzales. All of defendant's employee witnesses testified at trial that deaths of pedestrians in crosswalks were extremely important and they would absolutely want the engineering department to know about it should it happen. The former Chief of Police, Richard Hawthorne, testified that he never communicated this information about the August 2008 death to the engineer who was hired in March 2008.

Requests for Admission were read at trial that the city admitted that this was the only signalized crosswalk in the City of Atwater that had ever had a pedestrian killed in its crosswalk. The city also admitted, by way of Requests for Admission, that is had ample funds to pay for the split phasing at any point in time since the intersection was originally installed and before Delia Gonzales was killed. This admission prevented plaintiffs from presenting evidence that the city installed split phasing in the weeks following Delia Gonzales' death.

DEFENDANT'S CONTENTIONS:
Michelle Carrizales testified that on the date of the incident, she had a red light for her direction of travel that then turned green. She entered into the intersection and had to stop and yield to oncoming traffic before executing her left turn. She indicated that she had been through this location on at least 100 occasions before and had never experienced a pedestrian in the crosswalk and was unaware that pedestrians had a green light when she also had a green light. She indicated that she was focused on the traffic coming southbound on Linden, and once she saw it clear, she executed her left turn and struck Delia Gonzales. She testified that she never saw Delia Gonzales before impact.

The City of Atwater claimed that this incident was solely the cause of Carrizales' left turn and that she was negligent. The city also claimed that the city was entitled to design immunity and that there had been no change in conditions and that original intersection permissive phasing plan had been approved and paid for the city.

Settlement Discussions

Plaintiffs demanded $750,000. The City of Atwater made a CCP 998 offer for $300,000. Carrizales offered $15,000 policy limits. Both offers were rejected.

Injuries

Delia Gonzales was injured in the incident and taken to the hospital where she ultimately died. She was in excellent health at the time. She had been active in education, church, and community activities throughout her life in Atwater.

Result

Plaintiffs' verdict for $3,214,134. The City of Atwater was found 100 percent liable, and Michelle Carrizales was found not liable.

Other Information

The city has filed motion for a new trial. EXPERT TESTIMONY: Rick Ryan testified that the failure to institute the split phasing constituted a dangerous condition of public property. It was his opinion that the subject intersection was in a dangerous condition at the time of the incident. He testified that had the split phasing been instituted, Delia Gonzales would not have been killed. James Jeffrey testified that the subject intersection was not in a dangerous condition at the time of the incident and there was not sufficient accident history to warrant a change of split phasing. His opinion was the split phasing plan of 2004 was not instituted because it was not necessary.

Deliberation

four hours

Poll

11-1 (liability), 12-0 (damages)

Length

17 days