City’s policy to fix hazard brought to fore by lawsuit
CITY HALL — A West L.A. attorney who successfully settled a trip-and-fall case against City Hall says hazards in Santa Monica may continue to go overlooked, despite his success in helping his client.
Robert Tucker, who represented Aljean Harmetz in a trip-and-fall case that settled for $115,000 out of court in July, said there were discrepancies in depositions he took from city staff in the weeks leading up to the trial that was avoided by the settlement.
The evidence he gathered indicates Santa Monica may have abandoned efforts it made during the 1990s which required city staff to aggressively assess hazards on city property and prioritize the need to fix them. If true, City Hall may be paving the way for more accidents, as well as litigation.
“My hope in bringing this information before the public is that it may help prevent another serious injury,” Tucker said.
Tucker was also incensed by an Aug. 15 SMDP article, “City settles suits for $1.7 million,” in which an official alleges, “Santa Monica becomes a hot bed for greedy lawyers salivating to collect fees from relatively minor slip-and-fall accidents.” Tucker said such statements mischaracterize attorneys who sue over conditions municipalities often bring upon themselves.
Meanwhile, City Hall said there has been no significant policy shift regarding assessing hazards on city property, and responsibilities among staff members to fix them generally remain clear.
“It’s absurd,” said Lance Gams, a deputy city attorney assigned to the Harmetz case. “Do you know how many trip-and-fall accidents we’d have in Santa Monica if we encouraged staff to walk around with their eyes closed?”
Harmetz, who Tucker characterized as older than 65, was walking on the sidewalk on the north side of Santa Monica Boulevard near the intersection of 20th Street on Feb. 2, 2004. As she passed a bus stop and trash can and attempted to pass pedestrian traffic, she tripped over a tree well and exposed tree stump on the sidewalk, fracturing her right elbow.
The uncovered tree well had been in place since a tree was removed from the site by the city on Aug. 27, 2001, nearly two-and-a half years before Harmetz’s accident. City Hall may have intended to replace the tree, according to records.
Meanwhile, records show a trip-and-fall accident occurred at the same site in May of 2003, before Harmetz took her spill. Staff from City Hall’s street maintenance and open space divisions also surveyed the area during routine inspections while the tree well was exposed. Neither group managed to address the hazard until a month after Harmetz’s accident, when staff members coned the tree well and eventually cemented it over. In the depositions, some city staff even refer to the gap in the sidewalk as not being their responsibility.
A deposition taken from a street maintenance staff member in September of 1999 in the case Rita Mandell versus Santa Monica shows City Hall had a policy which required it to “identify a clear hazard that must be... repaired.” However, during testimony taken in April for Aljean Harmetz versus Santa Monica, the references to the word “hazard” were completely removed from the same guidelines for sidewalk repairs.
Tucker suggests there may have been a policy change between the 1999 deposition taken in the Mandell case and the April deposition he took from the same city staff member in the Harmetz case. As a result of this possible policy change, Tucker said city staff may now be required to prioritize repairs in terms of evaluating “damaged” public assets, as opposed to specifically looking for hazards.
If true, Tucker said this may be a step in the wrong direction.
“If the city is only inspecting for ‘damaged assets,’ what does that say about the dangerous hazards there may be on public property that could affect people like my client?” Tucker said.
Tucker said that if City Hall had a less aggressive approach to noting and handling hazards, it may help relieve Santa Monica of liability in some accident cases, because there would be no “notice” that the hazard exists, unless a citizen complains about it. Since city staff may not be reporting on such hazards, it may be more difficult for parties to prove City Hall is responsible for creating the hazards.
Tucker wasn’t sure if this was a strategy being employed by City Hall to defend itself against lawsuits, but he suggested it could be.
Gams said Tucker’s line of reasoning, however interesting, wasn’t accurate.
During the 1990s, City Hall was able to levy money from property owners whose sites were adjacent to damaged sidewalks. The money was used to fix damaged or hazardous assets.
However, that law is no longer in effect, Gams said, and because of it City Hall has less money in its coffers to immediately address hazards.
As a result, City Hall continues to look for hazards, but the hazards are prioritized and the response time takes longer, due to lack of funding.
Gams said the Harmetz case was a “hard fought” settlement that nearly went to trial. However, City Hall was concerned about some weaknesses in its case.
“From a litigation perspective, we did have concern the jury would think this tree well should have been taken care of in a shorter period of time,” Gams said. “This was a hole where people were expected to walk.
“It was there for too long.”
Originally published in the Santa Monica Daily Press print edition on September 2, 2005. Read the original PDF.