Manhole cover in bike lane said to be cause of cyclist's crash. $6.7M. Santa Cruz County.

Summary

Manhole cover causes cyclist to swerve into traffic lane where he collides with car.

The Case

Case Name: Joseph C. Wessling v. Pacific Bell Telephone Company, et al.
Court and Case Number: Santa Cruz County Superior Court / CV178079
Date of Verdict or Judgment: Thursday, December 07, 2017
Date Action was Filed: Friday, November 01, 2013
Type of Case: Bicycle Accident, Dangerous Condition Public Property, Premises Liability
Judge or Arbitrator(s): Hon. Paul P. Burdick
Plaintiffs:
Joseph C. Wessling, 44, sales manager.
Defendants:
Pacific Bell Telephone Company – Owned the manhole at issue.
County of Santa Cruz – Maintained the roadway.
Sandra Thomas – Driver.
Type of Result: Jury Verdict

The Result

Gross Verdict or Award: $6,789,130.37
Net Verdict or Award: $5,091,847.78
Settlement Amount: $4,000,000 while post-trial motions were pending.
Award as to each Defendant:
$6,789,130.37 - Pacific Bell Telephone Company.

Defense Verdict - County of Santa Cruz.

Defense Verdict - Sandra Thomas.
Contributory/Comparative Negligence: 75 % attributed to Pacific Bell Telephone Company; 25% attributed to plaintiff.
Economic Damages:
Past lost earnings: $261,726

Past medical expenses: $191,244.37

Future lost earnings: $836,160
Non-Economic Damages:
Past: $1,000,000

Future: $4,500,000
Trial or Arbitration Time: 20 days.
Jury Deliberation Time: 6 hours.
Jury Polls: 12-0 Liability as to Pacific Bell Telephone Company; 9-3 Liability as to County of Santa Cruz; 9-3 Liability as to Sandra Thomas; 9-3 Liability as to Joseph C. Wessling; 9-3 Damages as to Joseph C. Wessling.
Post Trial Motions & Post-Verdict Settlements: Pacific Bell Telephone Company Motion for New Trial; Pacific Bell Telephone Company Motion to Tax Plaintiff’s Costs; Plaintiff Motion to Tax County of Santa Cruz’s Costs.

The Attorneys

Attorney for the Plaintiff:
Schaar & Silva, LLP by Dan C. Schaar and Eva D. Silva, Campbell.

Caputo & Van Der Walde LLP by Paul D. Van Der Walde, Campbell.
Attorney for the Defendant:
Ropers, Majeski, Kohn & Bentley by Dennis J. Ward, Gregory M. Gentile and Mark J. Thacker, San Jose. (For Pacific Bell Telephone Company.)

Seki, Nishimura & Watase, LLP by Andrew C. Pongracz, Los Angeles. (For Pacific Bell Telephone Company.)

AT&T Services, Inc. Legal Dept. by Raymond P. Bolaños, San Francisco. (For Pacific Bell Telephone Company.)

Leach & McGreevy, LLP by Richard E. McGreevy and Brian Leach, San Francisco. (For County of Santa Cruz.)

Assistant County Counsel – Jason M. Heath, Santa Cruz. (For County of Santa Cruz.)

Carbone, Smoke, Smith, Bent & Leonard by Martin W. Mertes, San Jose. (For defendant driver.)

The Experts

Plaintiff’s Medical Expert(s):
Edward Damore, M.D., orthopedic surgery, San Jose.

Ralph J. Kiernan, Ph.D., neuropsychology, Redwood City.

Joshua E. Kuluva, M.D., neurology, Berkeley.
Defendant's Medical Expert(s):
Mark H. Strassberg, M.D., neurology, San Francisco.

David Pingatore, Ph.D., neuropsychology, Oakland.
Plaintiff's Technical Expert(s):
Rajeev Kelkar, Ph.D., collision reconstruction, Mt. View.

Carol Hyland, MA, MS, CLCP, CDMS, vocational rehabilitation, Lafayette.

Charles R. Mahla, Ph.D., economics, Sacramento.

Doug Shapiro, bicycle standard of care/safety, Little River.
Defendant's Technical Expert(s):
JM (Mike) Stephenson, Bellingham, WA, Collision Reconstruction.

Robert Lindskog, collision reconstruction, Sparks, NV.

Thomas Yankowski, MS, vocational rehabilitation, Oakland.

Edward Ruzak, highway design, San Francisco.

Jon Berryhill, computer forensics, Benicia.

Facts and Background

Facts and Background:
On Sunday, October 7, 2012, at 8:30 a.m., plaintiff Joseph Wessling was riding his Gios Torino road bicycle with his fiancee, Catherine Fahey, within the marked bicycle lane on Freedom Boulevard in Aptos. Freedom Blvd. is a county road, owned and maintained by defendant County of Santa Cruz. Defendant Pacific Bell Telephone Company (aka AT&T), owns and maintains a number of manhole covers on Freedom Blvd., including the manhole cover for the subject manhole, "MH749."

Unbeknownst to Wessling or Fahey, the cover for MH749 was within the bike lane, and it sat approximate three inches below the grade of the roadway surface. The location of the manhole within the bicycle lane reduced the usable space of the bike lane to less than two feet of space between the manhole cover and the travel lane on westbound Freedom Blvd.

As Wessling approached MH749, defendant Sandra Thomas was traveling behind Wessling and Fahey within the westbound travel lane of Freedom Blvd. Defendant Thomas saw Wessling point to the ground, signaling Fahey of the dangerous condition of MH749. Shortly thereafter, defendant Thomas heard a "thud" on side of her car, and when she looked into her rear-view mirror, she saw Wessling falling to the ground and sliding to a stop in the middle of Freedom Blvd.

Catherine Fahey told the investigation CHP officer that the impact happened less than one foot into the travel lane, while Wessling was going around the manhole cover.

Wessling was transported via ambulance to Dominican Hospital in Santa Cruz, CA and then airlifted to Regional Medical Center to San Jose, CA.
Plaintiff's Contentions:
Wessling filed suit against Pacific Bell Telephone Company (aka AT&T) for premises liability, against the County of Santa Cruz for Dangerous Condition of Public Property and against Sandra Thomas for Negligence.

Plaintiff alleged that the condition of MH749, being three inches below the grade of the bike lane was a dangerous condition and that Pacific Bell Telephone Company had a duty to maintain the manhole cover at grade, especially since the manhole cover was within the middle of a bike lane.

Plaintiff alleged that due to the location of the manhole cover within a bike lane, owned and maintained by the County of Santa Cruz, that the condition of the bike lane constituted a dangerous condition of public property.

Plaintiff's bicycling expert, Doug Shapiro, concluded that the below-grade manhole dangerously reduced the usable space of the bike lane, as a bicycle needs four feet of usable space to be safely operated, and this bike lane had less than two feet. Plaintiff's reconstructionist, Dr. Rajeev Kelkar concluded that, based upon the GPS data on plaintiff's phone, Wessling was traveling approximately 28 mph while passing the cover of MH749, and based upon the speed reduction on the GPS, and the damage to Wessling and his bicycle, that the impact happened within one second of MH749. As a result, the condition of the manhole was a substantial factor in causing Wessling to move to his left, where he was hit by the vehicle being driven by defendant Thomas.

In regards to defendant Thomas, plaintiff alleged that she was negligent, due to the fact that her travel lane was approximately 15 feet wide in the vicinity of the manhole, and that passing within one foot of the bicycle lane violated CVC 21750, failure to pass with safe distance.
Defendant's Contentions:
Defendant Pacific Bell Telephone Company (aka AT&T) admitted, on the eve of trial, that it was negligent in the use and maintenance of MH749. However, it claimed that even though it was negligent in the use and maintenance of MH749, its negligence was not substantial in causing Wessling’s harm. It contended that the crash happened approximately three seconds past the manhole, and it occurred due to Wessling negligently turning into the side of the passing Thomas vehicle, and that MH749 had nothing to do with the crash.

Defendant County of Santa Cruz admitted that its bike lane was hazardous, but denied the hazardous condition met the legal requirement of being "dangerous." The County's expert, Ed Ruzak, opined that MH749 should have been at grade, but aside from the area where MH749 was located, the remainder of the bike lane on Freedom Blvd. was safe.

Defendant Thomas contended that she was traveling in the middle of her lane and that Wessling turned out into the side of her car less than a second before impact; therefore she had no ability to avoid the collision.

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Although he was helmeted, Wessling suffered significant injuries as a result of this collision. He fractured his skull, his scapula, his clavicle, and four ribs. He developed a pneumothorax while in the ICU. He suffered significant brain trauma, including a subdural hemmorage, diffuse subarachnoid hemmoraging, diffuse intraparenchymal contusions, and axonal shearing. The majority of the brain trauma was within Wessling's right frontal, temporal and parietal lobes.

Approximately three years after the crash, Wessling underwent additional brain scans, which confirmed massive lesions of encephalomacia in his right frontal and temporal lobes, which resulted in permanent, irreversible loss of brain tissue.
At the time of the crash, Wessling was the national sales manager of a high-end audio distribution company working approximately 60 hours per week. As a result of his injuries, he eventually resigned his position and moved to Colorado with his wife, Catherine Fahey (now Wessling). Wessling was no longer able to work in the high-end audio industry, and has been limited to working part time.

Special Damages

Special Damages Claimed - Past Medical: $191,244.37
Special Damages Claimed - Future Medical: Waived.
Special Damages Claimed - Past Lost Earnings: $261,726
Special Damages Claimed - Future Lost Earnings: $1,542,167

Demands and Offers

Plaintiff §998 Demand: $1,000,000 to Pacific Bell Telephone Company; $500,000 to County of Santa Cruz; $500,000 to Sandra Thomas.
Defendant §998 Offer: $500,000 global from Pacific Bell Telephone Company and County of Santa Cruz; $50,000 from Sandra Thomas.
Defendant Final Offer before Trial: $500,000
Defendant Offer during Trial: $1,200,000 global from Pacific Bell Telephone Company and County of Santa Cruz.

Additional Notes

The case turned on two key events: (1) defense reconstructionist Stephenson and defense computer forensic expert Berryhill were heavily impeached on changing their testimony from deposition regarding the point of impact and (2) defense reconstructionist Stephenson’s animation was discredited on cross examination.

Plaintiff's counsel also says that based upon a review of reported cases in Santa Cruz County, this verdict appears to be the largest reported personal injury verdict in the history of Santa Cruz County.

The parties settled for $4,000,000 and a waiver of the $190,000 cost bill filed by the County of Santa Cruz. Plaintiff filed a cost bill for approximately $1.7 million, which included approximately $1.5mMillion in 998 expert costs and interest. However, before the motion to tax costs was heard, plaintiff settled for $900K less than the judgment to avoid an appeal and provide for his family, which included his wife and 9-month old daughter.

Per defense counsel:

Pacific Bell’s defense in part was that plaintiff had passed the manhole safely and was beyond the manhole when he inexplicably veered out of the bike lane and struck the left side of the Thomas vehicle with his front tire. While the jury accepted Pacific Bell’s theory of the accident, it nevertheless found liability for Pacific Bell for other reasons. Defendant County of Santa Cruz was found not liable based on a lack of notice of the condition of the manhole, and the driver Thomas was found not liable because the jury believed she never left her lane, and that plaintiff turned out of the bicycle lane and into her car.

In comments by jurors following the verdict, they explained that the basis for the verdict was that plaintiff looked back to check on his fiancé after passing the manhole, to make sure that she had passed it, as well. Thus, the jury felt the manhole contributed to the accident, since it caused plaintiff to look back, which caused him to drift into the traffic lane.