Trial lawyer investigating whether General Motors holds some liability in crash
Lawsuits stemming from the farmer’s market accident last week that left 10 dead and 79 injured may take years to go through the court system.
While police officers continue an estimated seven-week investigation, victims and their family members have hired lawyers and are preparing for a protracted civil battle.
No criminal charges have been filed against Russell Weller, the 86-year-old Santa Monica man who last Wednesday apparently lost control of his vehicle and sped through a crowded farmer’s market.
But Santa Monica trial attorney Brian Panish said Wednesday he has been retained by several of the victims and their family members, who will now pursue Weller for compensation in civil lawsuits.
Panish said the city of Santa Monica, which is responsible for the twice-weekly market, and General Motors, which manufactured the 1992 Buick LeSabre Weller drove, will likely also be sued.
Experts said establishing liability against those deeper-pocketed entities will be a crucial factor in any pending litigation, as the assets of Weller, a retired wholesale grocer, are likely to be easily exhausted.
“Those will be hard-fought battles and if you get those resolved, the suits will probably settle fairly quickly,” said Stephen Yeazell, a civil litigation professor at UCLA.
Jail time unlikely
Because it doesn’t appear he was acting intentionally, Weller probably won’t face first-or second-degree murder charges for last week’s deadly accident, said Brian O’Neill, a nationally-recognized Santa Monica criminal defense lawyer.
But he could be charged with vehicular manslaughter.
Vehicular manslaughter with gross negligence, a felony, carries a maximum sentence of six years in prison and a minimum sentence of probation. Prosecutors would have to show that Weller’s behavior was aggravated, reckless or flagrant to prove gross negligence.
Without gross negligence, vehicular manslaughter is a misdemeanor and carries a maximum sentence of four years in prison.
O’Neill said he doesn’t think gross negligence will apply to Weller.
690,“They’re not trying to put this guy in jail for life,” he said. “But they are trying to make some statement about society’s values.”
A key factor in the criminal proceedings will be whether prosecutors can show that Weller knew he was a potentially dangerous driver.
Though videotapes have surfaced that allegedly show Weller losing control of his car in separate incidents, attorneys may be able to successfully argue a “diminished capacity” defense. If Weller is shown to have had diminished physical or mental abilities, the earlier accidents may not count against him.
The bottom line, said O’Neill, is that criminal proceedings are likely to be resolved rather quickly and could involve a probationary sentence, as well as the permanent forfeiture of Weller’s driver’s license, which was suspended by the Department of Motor Vehicles on Monday.
Weller has retained two criminal defense attorneys.
Millions at stake
Civil litigation over the accident, on the other hand, could last as long as four years and is expected to involve a substantial amount of money, Yeazell said.
Lawyers, once retained, file claims on behalf of their clients. Then the investigation takes place, depositions are taken, evidence is exchanged and trial dates are set.
Yeazell said the lawsuits arising out of last Wednesday’s accident probably will be consolidated in front of one judge who is familiar with the case and can therefore realize some economies in trial.
He said the average litigated case is in court for two years. But because there may be a separate criminal case against Weller and the civil litigation is complicated, it could be four years before the lawsuits are resolved.
In the past, juries have awarded millions of dollars in wrongful death lawsuits. The exact amount of the award depends on a host of factors, including the age of a victim, how much money he or she earned and whether they had children.
And then there are the injured.
“It’s a bizarre fact that a living but permanently injured person has a higher damage bill than someone who is killed outright,” said Yeazell, adding that the cost of caring for a seriously injured individual can be astronomical.
Panish, who has won national acclaim pursuing corporations in the courtroom, said the bottom-line figure for last week’s accident could be substantial. But it’s too early to estimate at this point, he said.
Trial attorneys typically do not demand money up front and work on a percentage-based contingency fee, usually keeping 30 or 40 percent of any final settlement.
If Weller’s assets and insurance coverage are exhausted rapidly, other possible settlements may become moot unless City Hall, General Motors or others are found to be liable, Panish added.
City’s role in question
For City Hall to be found liable in the accident, lawyers for the victims will have to prove that a “dangerous condition of public property” existed when Weller’s car entered the market — and that officials either knew or should have known about it.
Panish said he will look into whether city officials ever discussed erecting pedestrian posts or a concrete barrier to protect shoppers from motorists outside the market, which takes over Arizona Avenue between Second and Fourth streets.
He pointed to the posts on the Third Street Promenade that allow pedestrians but not vehicles, and the concrete barriers at the local Department of Motor Vehicles. He also questioned why similar barriers weren’t placed at the twice-weekly farmer’s market.
“Obviously somebody in the city has recognized the danger (vehicles can pose),” Panish said.
Santa Monica City Attorney Marsha Moutrie did not return calls seeking comment.
But San Luis Obispo City Attorney Jonathan Lowell said it would be difficult to prove that a dangerous condition existed and also prove that the city should have known about it.
“There’s just no way that you could find that,” he said. “A dangerous condition would be a roadway with a big pot hole right in front of City Hall, in front of a parking lot that city employees use — no one’s told them about it, but they have constructive knowledge about it.”
Tony Condotti, assistant city attorney in Santa Cruz, agreed. He made the example of the Los Angeles marathon, which attracts thousands to area roads each year.
“If you were going to plan for that type of eventuality, there are innumerable locations you would have to protect,” he said. “The same thing could have happened if he’d jumped a curb and ran into people on the sidewalk.”
But Panish said city officials should have erected some type of barrier and may have even discussed it in the past. He said he intends to investigate the matter further.
Councilman Bob Holbrook said Wednesday the barrier issue has never come up before.
“I’ve been elected for 20 years,” he said. “And until last Thursday, nobody ever suggested concrete barriers and no one ever, ever said anything about not feeling safe at the market.”
GM may also be named
General Motors also may be pursued because the company apparently had serious problems with sudden acceleration in a similar 1992 model car, Panish said.
But before the car manufacturer can be pursued in court, Yeazell said lawyers must prove that any possible malfunction caused or exacerbated last week’s accident.
Panish said his firm is currently investigating whether or not the same thing may have occurred in Weller’s car before he sped through the farmer’s market last Wednesday.
“I’m looking into it,” he said. “I can’t really disclose much but I’m going to find out more soon.”
Asked if there was a recall on the car in question — a 1992 “W” model GM — Panish said, “They don’t do recalls. Not very often. Recalls are rare. They claim that it’s defective.”
If GM and the city are found liable, there will likely be a jumble of cross lawsuits and complaints, Yeazell predicted. The three defendants, including Weller, may also seek indemnity by suing one another, Yeazell said.
Economic damages, such as medical bills and lost wages, are awarded against each defendant individually, which means a jury could decide whether and how the car company, city, or driver share liability. But non-economic damages, such as pain and suffering, are shared by all defendants, no matter their degree of guilt, Yeazell noted.
This could become important if non-economic damages are awarded against Weller and another party, because Weller’s assets may quickly be vacuumed up.
Residents and farmers returned to the fabled Santa Monica marketplace on Arizona Avenue Wednesday, one week after Weller’s accident. Though city officials said it would be too expensive to erect concrete barriers, city service trucks were parked at both ends of the market, blocking motorists.
Originally published in the Santa Monica Daily Press print edition on July 24, 2003. Read the original PDF.