Facts

On Feb. 27, 2009, five-year-old Zachary Cruz died as a result of traumatic injuries to his head at approximately 1:49 in the afternoon when he was struck by a truck owned by Ferguson Welding and driven by John Martin. Zachary was walking within a crosswalk at the intersection of Derby and Warring Streets within the City of Berkeley. Plaintiffs are Zachary's parents, Frank and Jodie Cruz.

Zachary died while he was being escorted to his after school program by Zayda Arevalo located on the Clark Kerr Campus of the University of California, adjacent to the intersection of Derby and Warring. At the time of his death, Zachary was a kindergarten student at the Le Conte School in Berkeley, California.

Zachary's school day at the Le Conte school had ended at approximately 1:25 p.m. and he was picked up at school by defendant Zakiya Green, a bus driver for the Berkeley Unified School District, in a Berkeley Unified School District bus to be transported to his day care center, located on the Clark Kerr campus.

The Berkeley Unified School District had designated a bus stop where Zachary was to be dropped off by Zakiya Green, and met by a U.C. day care employee. The designated bus stop where Zachary was required to be dropped off was located on the east side of Warring Street just north of Derby, adjacent to the Clark Kerr campus. This bus stop had been designated as the only place where Zachary should have been dropped off by the Berkeley Unified School District pursuant to California Vehicle Code Section 22112.

Zachary was dismissed from the Le Conte School at approximately 1:25 p.m. and was driven by Zakiya Green towards the designated bus stop. However, before defendant Green arrived at the bus stop, she stopped her bus approximately a block and a half away from the Clerk Kerr campus at the corner of Derby and Piedmont Street, one block west of the intersection of Derby and Warring.

Zakiya Green testified that she saw Zayda Arevalo walking with three other students when Arevalo waived for the bus to stop. Zakiya Green stopped the bus and Zachary gathered his belongings, walked off the bus, and his custody, care and control were turned over to Zayda Arevalo.

Zayda Arevalo denied waiving down the bus and claimed that the bus stopped on its own and that Zachary came off the bus where she then took custody and control of him and began walking towards the Clark Kerr campus. Defendant Arevalo, who was now escorting four kindergarten students, including Zachary, began walking east on Derby towards the Clark Kerr campus and within minutes arrived at the intersection of Derby and Warring.

Arevalo and the four children then stopped at the crosswalk located on the eastern side of the intersection to check for traffic, and Zayda began leading the children across the intersection within the crosswalk. According to Zayda, as she began walking across the intersection, a white truck driven by John Martin, began a left turn coming from Derby Street and almost hit all five of the pedestrians well within the crosswalk. Zayda has testified that she was able to step back from Mr. Martin's vehicle and shield three of the four children from the oncoming truck but she was unable to shield Zachary. The welding truck hit Zachary while he was walking within the crosswalk killing him almost instantly.

John Martin testified that he was working for Ferguson Welding at the time of this occurrence and had just completed some work on the University of California campus when he was driving back to Hayward, south on Warring Street when the accident occurred. The intersection of Warring and Derby is a "T-intersection" controlled by three stop signs. Mr. Martin has testified that he was heading south on Warring when he came upon the intersection of Warring and Derby where he stopped at the intersection. He then claims to have looked in all directions for oncoming traffic and then began to make a left hand turn through the intersection and that he never saw any of the five people who were well within the crosswalk at the time he began his left hand turn. Mr. Martin has testified that he felt as though he had hit a speed bump when he ran over Zachary and almost ran over the four other pedestrians.

It was not learned until well into the litigation that Mr. Martin had no vision in his right eye due to a prior industrial accident.

Result

The case settled for a total of $2,750,000: Defendants Ferguson Welding and John Martin and it's insurance carrier paid $1,800,000; The Berkeley Unified School District paid $400,000 in cash, plus an additional $50,000 for a computer and technology center for the benefit of the students at La Conte Elementary School in Berkeley, where Zachary had attended school; the Regents of the University of California paid a total of $275,000 to plaintiffs and funded, in the amount of $225,000, an endowed scholarship in Zachary's honor to Cal to benefit transfer students and student parents. In addition to the monetary payment, both the School District and the University provided formal letters of apology to Mr. and Mrs. Cruz.