Metropolitan News-Enterprise


Thursday, October 8, 2009


Page 1


C.A. Revives Claim Arising From Fatal 2006 Accident on 110 Freeway


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal has revived a personal injury action based on an alleged dangerous condition on the 110 Freeway which led to a fatal 2006 traffic accident.

Div. One rejected Los Angeles Superior Court Judge Robert L. Hess’ finding that the freeway’s median did not present a dangerous condition as a matter of law and reversed the grant of summary judgment in favor of the California Department of Transportation in an unpublished decision Tuesday.

The cross-median accident at occurred in May 2006 near Avenue 52. According to the trial court’s description, Michael Espinoza was driving a Ford F-150 pickup truck northbound at an estimated at 75 mph, while weaving around other traffic. He had been drinking.

Just north of Avenue 52, Espinoza apparently side-swiped a car and served into the raised curb of the median. The truck jumped the median, flipped, landed on its roof and slid into the southbound lanes, where it collided with a southbound BMW being driven by Geraldine Alimurung.

Espinoza’s passenger, who was not restrained by a seat belt, was ejected from the truck and killed. Both Alimurung and Espinoza suffered serious injuries.

In December 2006, Alimurung filed suit against CalTrans, Espinoza and Diana Salazar, co-owner of the truck. Espinoza defaulted, and Salazar was dismissed at Alimurung’s request.

Alimurung contended that the area of the freeway where the accident occurred had a dangerous condition because “the median barrier was placed on the raised median, the height of the raised median was too high to be used in combination with the median barrier, the face of the median barrier was not flush with the boundary of the median…the median barrier height was not sufficient, the median barrier was in disrepair, and the median barrier was of the wrong type.”

Summary Judgment

Caltrans filed a motion for summary judgment, contending that the median was not a dangerous condition as a matter of law because it did not present a substantial risk of injury to persons using the highway with due care.

The agency also submitted supporting evidence indicating that only one in 190 million vehicles faced the risk of being hit by a northbound vehicle going over or through the median, based on the accident history of the segment of the highway involved.

Hess granted the motion, finding that the accident history was undisputed evidence that the median did not constitute a dangerous condition.

“[T]he accident and traffic statistics before the Court suggest just how freakish this accident was,” Hess wrote. “Where the statistics show the likelihood of a similar accident is sufficiently low, the public property is not deemed to be in a dangerous condition as a matter of law.”

Johnson’s Reasoning

But Justice Jeffrey W. Johnson disagreed, explaining in his decision for the appellate court that Caltrans’ accident history information was insufficient because it only took into consideration two-car accidents in which one vehicle crossed the barrier and struck another vehicle on the other side.

“The issue was whether the configuration and the condition of the median and the median barrier would cause a vehicle striking the median and the barrier to vault onto the other side of the barrier, and not whether the vehicle would then hit an oncoming car,” he emphasized, noting that the accident history excluded any cross-median accidents involving only one car.

“Those accidents, if any have occurred, would be relevant to establishing whether the median and the median barrier was a dangerous condition presenting more than ‘a minor, trivial or insignificant risk of injury,’ ” Johnson said, opining that the accident history’s limitation to the precise facts of the accident suffered by Alimurung was therefore too narrow to establish as a matter of law that the median did not constitute a dangerous condition.

Johnson acknowledged that speeding or other driver negligence may be a cause of many cross-median accidents, but reasoned that the record in this case was insufficient to establish that the construction of the median created a substantial risk of injury only if the driver vaulting the barrier was driving without due care, as a matter of law.

“[I]t may be that some single-vehicle vaulting accidents involved drivers traveling at or below the speed limit or otherwise using the Parkway with due care,” he suggested. “Certainly, this possibility is within the realm of reason and common sense.”

And even if the driver whose car crossed the median was not exercising due care, Johnson added, Caltrans would not be immune from liability because a condition of public property that increases the risk of injury from third party conduct may still be a dangerous condition.

Presiding Justice Robert M. Mallano and Justice Victoria Gerrard Chaney joined Johnson in his decision.

William C. Clevenger of Newhall represented Alimurung while CalTrans attorneys Ronald W. Beals, Linda Cohen Harrel, Charles M. Belenky and Robert W. Vidor represented the government.

The case is Alimurung v. State of California Department of Transportation, B208199


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