Metropolitan News-Enterprise


Tuesday, July 21, 2009


Page 1


Court Orders New Trial in Negligence Action Against MTA


By SHERRI M. OKAMOTO, Staff Writer


Instructional error required a new trial on liability in the case of an elderly woman who was injured in a 2005 bus accident in Panorama City, the Court of Appeal for this district ruled yesterday.

Reversing the verdict in favor of the Los Angeles County Metropolitan Transportation Authority and its employee, Omar Forero, Div. Seven said Los Angeles Superior Court Judge Stanley M. Weisberg had prejudicially erred in failing to instruct the jury on principles of res ipsa loquitur.

Forero was driving the MTA bus which collided with a car being driven by Cindy Artero near the intersection of Van Nuys Boulevard and Roscoe Boulevard on Nov. 21, 2005. Eduvigis Diaz, then 79, was a passenger on that bus.

Diaz fell off of her seat and struck her head, sustaining injuries. She later filed suit against the MTA and Forero, claiming her injuries were caused by Forero’s negligence in operting the bus.

At trial, Diaz asserted that Forero had intended to proceed through the intersection and was unprepared to stop when Artero’s vehicle stopped in front of the bus.

Collision Unavoidable

But the MTA and Forero insisted the accident was the result of Artero’s car moving in front of the bus from the right-turn lane just before the traffic light turned yellow and abruptly stopping. Under these circumstances, they contended Forero could not have avoided the collision.

Diaz asked Weisberg to instruct the jury that the accident itself created a presumption of Forero’s negligence, but Weisberg declined.

The jury eventually returned a special verdict finding the MTA and Forero had not been negligent and Weisberg denied Diaz’s motions for a new trial and for a judgment notwithstanding the verdict.

Writing for the appellate court, Presiding Justice Dennis M. Perluss explained that the doctrine of res ipsa loquitur applies when a passenger on a common carrier, through no fault of her own, is injured in connection with the operation of the carrier’s vehicle.

Common Carrier

So long as there is substantial evidence to support the passenger’s position the accident resulted from the carrier’s operation of its vehicle, the doctrine is applicable to collisions between a common carrier and a third party in which the carrier claims the accident is the result of the third party’s negligence, he added.

Perluss noted that “markedly different accounts of the accident and who was at fault” were offered at trial, and that the issue of negligence “was a close one.” He reasoned that the MTA and Forero “enjoyed a critical advantage at trial” by not having to disprove the presumption of negligence and so the trial court’s failure to instruct on res ipsa loquitur was therefore reversible error.

Justices Laurie D. Zelon and Frank Y. Jackson joined Perluss in his decision.

Marlon M. Alo of Los Angeles represented Diaz, while Paul O’Reilly of O’Reilly & McDermott, and Martin Stein and Carolyn Oill of Greines, Martin, Stein & Richland represented the MTA and Forero.

The case is Diaz v. Los Angeles County Metropolitan Transportation Authority, 09 S.O.S. 4416.


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