On July 17, 2008 our 49-year-old client was riding his Harley Davidson in the #1 east lane of State Route 104, aka Twin Cities Road, in Galt California. There was a vehicle in the adjacent east lane, to his right, slowing to make a right turn into the main commercial driveway of a shopping center. As our client was driving past the main commercial driveway an automobile driven by defendant Morales pulled out of the driveway to make a left turn onto westbound SR 104. Defendant Morales's vision of our client was blocked by the right turning vehicle until too late, and the Morales vehicle struck our client's right foot.
Plaintiff suffered multiple foot fractures and dislocations, and underwent a surgical below-knee-amputation at UC Davis Medical Center.
Investigation via the California Public Records Act revealed 18 prior substantially similar collisions between left turning vehicles from the main driveway of the shopping center, and vehicles in the #1 east lane of SR 104. Investigation also revealed that before the shopping center opened in 2003 its owners had been warned by their own consulting traffic engineer that as traffic volume increases on SR 104 due to the shopping center and residential construction in the area, left turns out of the main driveway will become increasingly difficult and a safety problem. Furthermore, the development agreement between the city of Galt and the shopping center owners/developers contained a condition that the driveway be monitored and left turns eliminated when it became a public safety issue.
Nonetheless, the owners and operators of the shopping center did nothing to inspect or monitor the operation of driveway traffic, claimed that this was the duty of the city of Galt and Caltrans, and claimed to be unaware of the 18 prior substantially identical accidents. Moreover, defendants failed to erect a stop sign for outbound driveway traffic as called for on the site plans, and failed to maintain the stop pavement markings and stop bar that had been painted on the driveway when the shopping center opened.
Plaintiff contended that the owners of the shopping center had a nondelegable duty to inspect and maintain its property in a safe condition so as to avoid creating an unsafe condition on it's property and on adjacent property, i.e., the adjacent public highway.
Defendant shopping center owner's motion for summary judgment on the issue of duty was denied.
Defendants contended that they had no duty to inspect or monitor the operation of their driveway and driveway traffic, were not negligent in the maintenance of the shopping center, that no dangerous condition was created, and that the accident was entirely due to the negligence of the left turning driver, defendant Morales.
A pre-trial settlement was reached with the driver Morales for his auto liability policy limits of $30,000, and with the shopping center owners for $2 million dollars.