Immunity defense draws ire
DOWNTOWN — A single sheet of paper was all a Santa Monica judge needed to clear City Hall of any liability in a deadly car accident nearly three years ago in which an elderly man drove his car through a crowded Farmers’ Market, killing 10 and injuring dozens more.
That piece of paper contains what City Hall refers to as its traffic control plan for the Farmers’ Market, designed and approved in 1987 by Ron Fuchiwaki, City Hall’s former parking and traffic engineer. The paper consists of a drawing of the Market’s boundaries, including where barriers and signs should be placed to alert drivers to street closures along Arizona Avenue where the market is held.
Attorneys representing roughly 40 victims of the accident argued in court that the one-page rendering is not an official document, comparing Fuchiwaki’s drawing to scribbles on a cocktail napkin. They also claim Fuchiwaki was never qualified to engineer a traffic control plan, nor did he or anyone else in City Hall adjust the plan according to changing conditions created by the popularity of the market, including more pedestrians and more cars.
Valerie Baker earlier this week sided with City Hall, stating in her carefully crafted 19-page ruling that the victims’ attorneys failed to show that conditions at the market had changed significantly enough to warrant reforms to the plan.
More significant was Judge Baker’s decision that the traffic control plan was properly designed and approved by Fuchiwaki, thereby satisfying requirements City Hall needs to meet to be granted design immunity, a protection given to all municipalities so city officials can perform their duties without a paralyzing fear of litigation.
“A municipality can be held responsible for negligence in such things as how it creates an intersection or where it places things like STOP signs,” said David Leonard, a professor at Loyola Law School who specializes in tort claims. “Oftentimes, people responsible for a car accident will claim the STOP sign they ran wasn’t visible where it was placed, such as on top of a steep hill, and that caused them to crash. But if the city designed something — in this case the layout of the Farmer’s Market, including where barriers are to be placed — and that design was approved by the proper authority and conforms with current standards, than the city is protected. That is design immunity.”
A defense that is used often by City Hall and others, design immunity was created by lawmakers to ensure municipalities can continue to offer essential services without coffers being raided by plaintiffs seeking those with deep pockets. Design immunity also allows those acting on behalf of the city, from engineers to police officers, to make decisions they feel are best without “worrying about someone always looking over their shoulder,” Leonard said.
“If that happened, (city employees) would be frozen,” Leonard added. “They would be afraid to do anything.”
Judge Baker’s ruling comes nearly three years after the catastrophic crash involving George Russell Weller, now 89, who lost control of his 1992 Buick LeSabre after he rear-ended a Mercedes Benz at the intersection of Fourth Street and Arizona Avenue, July 16, 2003. Weller hit the accelerator instead of the brake and traveled 995 feet through the Farmers’ Market at speeds of up to 60 mph, hurling pedestrians into the air before stopping, a California Highway Patrol report said.
The 10 people killed ranged in age from 7 months to 78 years old.
Weller has pleaded not guilty to 10 felony counts of vehicular manslaughter with gross negligence and has been free on bail awaiting trial, which is expected to begin in September following a lengthy delay that has caused the civil trial to be postponed until January of 2007.
Judge Baker’s decision marks a significant turning point in the civil lawsuit, as it removes the defendant most capable of paying damages a jury may award in the case. Without City Hall and its $22 million insurance policy, the victims are left with Bayside District Corp., Step Up on Second and Southland Farmers Market, all of which have filed motions to be excused from the case. Judge Baker denied motions filed by the non-profit Step Up, which provides some security and maintenance at the market, and Bayside, which helps City Hall manage downtown, including the Third Street Promenade. Southland’s involvement and status remain unclear.
Attorneys for the plaintiffs claim that without City Hall, there may be no chance for their clients to recover the significant losses they’ve endured, which include emotional, fiscal and financial wounds.
“Design immunity is usually granted to give a city a free pass,” said Geoff Wells, an attorney with Greene, Broillet & Wheeler who is representing 13 victims.“The reason is that many times, when this comes up, there is a very old plan at question and the engineer who designed it is usually no longer alive and there is no way for anyone to dispute it. Here, the traffic engineer is still around.We took his deposition in which we found he had no experience on road closures.
“All we wanted was for the jury to decide,” Wells added. “If we can get to a jury and let them see the one-page traffic control plan and the lack of training and experience that went into the road closures … the jury would be shocked. I know I was.”
Wells said he and his colleagues have no other choice but to appeal Judge Baker’s ruling, a move which may delay the civil trial once again. Wells said he did not know if Judge Baker would continue with the trial during the appeals process, with Bayside and Step Up the lone defendants.
There is word that Judge Baker may also be promoted to the federal level, meaning another judge with less experience in the case may take over before trial begins.
Either way, letting City Hall off the hook does not bode well for the victims’ cases.
“We don’t want an empty seat in the courtroom for Bayside and Step Up to point to and say,‘It wasn’t our job to protect shoppers. It was the city,’” Wells said. “(Judge Baker’s) ruling will be devastating for our clients. Some say we’re only after the city because of ‘deep pockets.’ We want the city, in this case, because they admitted they have a responsibility to make sure the road was safe, and they didn’t”
Officials with City Hall have denied any responsibility for the accident or claims that they failed to properly protect the public.
City Hall may still have to pay out millions if Bayside is found to be responsible for the management of the Farmers’ Market during the civil trial. That’s because Bayside has an operating agreement with City Hall, which requires City Hall to pay for the cost of litigation and any damages awarded. That indemnity clause has been activated, with City Hall picking up the tab for legal fees.
“Who knows how that’s going to shake out,” Wells said, expressing concern as to how and when his clients would get paid in the event a jury awards in their favor.
Shoppers at the Farmers’ Market on Wednesday had mixed reactions to the ruling. Some felt City Hall should be cleared of any wrongdoing because it was Weller who drove his car through the Market, not an employee of the city. Many said the accident was a freak occurrence that no one could have anticipated, while a few pointed to barricades at the ends of the promenade, saying City Hall could have installed similar ones at the ends of the market.
Several vendors refused to speak about the accident, still scarred by the images of blood and carnage.
“Why do you want to make us relive that horrific day again?” one vendor said when asked about the crash.
Marisa Rubin, a frequent shopper at the market, was present the day of the accident and can still remember the sound of bodies bouncing off the car’s hood as Weller drove within feet of her as she kneeled on the ground for protection.
“It was just terrible,” she said. “It was just an awful tragedy. I mean who in their right mind is going to think someone would go past the barrier and into the market? It never happened before.”
Jesus Romero, who sells strawberries with his wife at the market, said he feels sad and doesn’t see the need for any more security or barricades.
“I think people know already about the market since the accident,” he said. “They know to be careful now.”
Romero, who works at other markets around Santa Monica and Los Angeles County, said City Hall did nothing wrong in setting up the market, and feels a lawsuit would only hurt his business and that of other vendors because other cities would be afraid to be a host.
“This is about one guy who lost control,” Romero said. “I don’t think it will happen again.”
Originally published in the Santa Monica Daily Press print edition on July 6, 2006. Read the original PDF.