Uploaded: Tue, Jul 2, 2013, 11:53 am
Park Blvd crash spurs $17 million claim with Palo Alto
The family of a 12-year-old boy who was struck by a vehicle while riding on the 2500 block of Park Boulevard has filed a $17 million claim with the City of Palo Alto for negligent design of the bike route on the road.
Sebastian Lerrick suffered a traumatic brain injury after being struck by a Nissan Quest driven by Luis Felipe Hau of Sunnyvale on Nov. 5, 2012, at 7:19 a.m., according to a police report. Attending paramedics found Lerrick with a leg and wrist fracture, a broken jaw, broken teeth and brain swelling. The boy was wearing a helmet, according to the report.
The vehicle struck Lerrick from behind, breaking his bicycle frame in two and damaging the Nissan's front bumper, hood and windshield. Parts of Lerrick's bike and his school supplies were strewn across the road.
Hau told police the crash occurred as he was driving south on Park, through a construction area, on his way to East Palo Alto to pick up supplies for his employer, Izzy's Bagels. He said the sun was in his eyes, and he was driving between 25 and 35 miles per hour. He did not see the bicyclist but heard the crash. He noticed his windshield was broken and immediately stopped to investigate, the report stated.
Lerrick, a Hoover Elementary School student, had been riding his bike south on Park but had left the bicycle lane to get around the construction, according to the report. Hau's Quest struck Lerrick as the boy veered back into the bike lane. The impact flipped Lerrick onto Hau's hood and windshield.
Lerrick was taken to Stanford Hospital in critical condition and was transferred to Lucile Packard Children's Hospital's pediatric intensive-care unit. He still suffers traumatic brain injuries, resulting in physical, cognitive, psychological and emotional issues, according to the family's claim.
A toxicology report of Hau's blood found that he had methamphetamine in his blood at the time of the collision, according to the police report.
Hau told police during questioning that he had a previous addiction to methamphetamine, but he had not taken any in a while. He gave police a blood sample. He said he had been in a bad car accident some time back, and he had been in a coma for a while.
Israel Rind, owner of Izzy's Bagels, said that Hau was off the clock when the accident occurred and was not driving for Izzy's. He said Izzy's has its own driver and its own company truck and would not send Hau for supplies or have an employee to use his own vehicle to pick up supplies. He suspected that a language barrier may have caused confusion when police interviewed Hau about the accident.
Palo Alto Police Agent Cindy Kono on Feb. 13 recommended that Hau be charged with driving under the influence (DUI) and causing injury. Police also recommended that Hau be prosecuted on counts of driving at an unsafe speed and driving with a suspended license and causing injury.
Cindy Hendrickson, Santa Clara County supervising deputy district attorney, said Hau has not yet been charged in the incident. The lengthy investigation into the crash is typical because investigators and the DA's office want to make sure nothing has been overlooked, she said.
"Before a final decision we meet with the family of the victim. An investigation followup Agent Kono did was completed in the last day or so," she said Wednesday. "We need to have those meetings with family before we can announce a decision."
The $17 million claim states that "a substantial factor that contributed to this incident is the City of Palo Alto's negligent design, construction, maintenance, signing, operation and control of the roadways."
Attorney Todd Emanuel filed the claim on April 19. If the city rejects the claim, the claimant can proceed to file a lawsuit.
George Ellard, who is representing Lerrick through Emanuel's law firm, has not yet returned a call seeking comment.
Hau could not be reached for comment.
Posted by City cynic
a resident of Another Palo Alto neighborhood
on Jul 2, 2013 at 3:43 pm
"a substantial factor that contributed to this incident is the City of Palo Alto's negligent design, construction, maintenance, signing, operation and control of the roadways."
While I can't speak to the details of the case, given what's happening with the Maybell rezoning, where the City got involved loaning millions for a project before there was any public input, part of the project involved rezoning for the benefit of a market-rate for-profit developer, and the development itself is located at a bottleneck between two overly burdened safe routes to school (one of substandard width that even Mark Berman deemed not safe), with no other routes in and out except by those routes, yet the City failed to do any study of the impact of the development on the bicyclists and failed to use current data in their traffic study -- then approved the rezoning without doing that or the heightened scrutiny City policy demands -- I am suspending judgment until I know more. After witnessing what has happened on Maybell, I could well believe there is a clear aspect of negligence by the City and will wait to hear what happens. (Usually the amounts asked for in a suit have to do with future medical costs, as well as the need to cover attorney fees which can eclipse pursuing the actual claims.)
Given the high level of public input and complaints about the traffic problems on Maybell and concerns about a high-density development at that location (which is currently a no-traffic historic orchard) worsening an already unsafe situation, you would think the City would be jumping all over trying to solve those problems, yet instead they cancelled a Community meeting about the bike paths indefinitely as soon as neighborhood lists in the Greenacres area got wind that the Matadero bike lane meetings advertised were going to include the Greenacres bike paths.
When neighbors complained about the need to assess the effect on emergency vehicle response times, City Council and PAHC planners said the fire department had looked at the traffic and said there was no problem. But when neighbors asked the fire department, they said they did no such independent review of the traffic, they rely on what traffic planners tell them, they don't themselves look for problems if PTC doesn't tell them to. PTC and other city staff have acted as advocates for the rezoning, and thus stuck by a flawed and inadequate traffic study that didn't involved the bicyclists or have current data. Thus, the safety of all Palo Altans is affected by City abrogation of its responsibilities to citizens in this one project. Knowing what it knows about the safety problems on Maybell, if the City adds a large development without doing an honest and comprehensive traffic study, as their own policy demands, I think they should be liable if the worst happens. Legally, they probably are.
Many of us know this area is an accident waiting to happen and are fighting the rezoning first because of the safety concerns. If there is an accident involving a child, given the overburdened infrastructure and the safety problems of which the City is now fully aware, if the worst happens, it will be because of gross negligence on the part of the City.
In the course of this, we have become aware of other conditions on Maybell, such as auto dealership trucks unloading and blocking one lane so bicyclists have to swing into the opposite lane (there is no room on Maybell for a separate bike lane or real sidewalks). There is a City ordinance requiring dealers to have enough space to unload on their properties, and neighbors complain, but the City does nothing. (Police can't.) If a child has lifelong medical bills and serious injuries because nothing is done and this unsafe situation contributes to an accident, wouldn't the City's negligence factor in? I think so. If the City ignores all the safety warnings and fails to do a good quality traffic analysis, even though their own policy calls for heightened scrutiny of school commute routes, and rezones/adds a development that puts more traffic on an already unsafe route, if the worst happens, the City would bear legal and moral responsibility.
There was construction here, and possibly codes and rules applying to the construction that were not followed or enforced, conditions citizens may have complained about for a long time, none of us knows. Lawsuits are really hard, especially when a child has been seriously injured. I think the idea that people sue at the drop of a hat is a myth the insurance industry wants us to believe so we blame plaintiffs. No, I'm not saying there aren't litigious people. I'm just saying, it's not as bad as people think, the reality is that most people who have cause to sue, don't.
The Harvard Medical Practice studies found that of people who were clearly, unequivocally, through conservative assessment of records, injured or killed by malpractice, only something like 0.2% sued. Often suits are on behalf of a child who has future medical bills or a compromised life.
Malpractice lawyers also do not like wasting their time, they usually only take clear cases. Suspend judgment unless you know. Me, I am now a lot more cynical about the City's possible contribution through negligence. I would want to know more.