samples msj opps in various case categories

SAMPLE OPPOSITIONTO MOTION FOR

SUMMARY JUDGMENTIN CONSTRUCTION

INJURY CASE

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Declaration of Jerry Hildreth in Opposition to Defendant W.E. O'Neil's Motion for SummaryJudgment.wpd - Page 1 04-0790.01

THE HOMAMPOUR LAW FIRMA Professional Law CorporationARASH HOMAMPOUR (State Bar No. 165407)FARZAD YASSINI (State Bar No. 234609)8383 Wilshire Boulevard, Suite 830Beverly Hills, California 90211-2407Telephone: (323) 658-8077Facsimile: (323) 658-8477

LAW OFFICES OF DAVID H. GREENBERGDAVID H. GREENBERG (State Bar No. 37950)JEFFREY A. RUDMAN (State Bar No. 198380)8383 Wilshire Boulevard, Suite 336Beverly Hills, California 90211-2403Phone.: (323) 782-0500 | Fax: (323) 782-054

Attorneys for Plaintiffs JAVIER MEDINA; MARIA MEDINA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

JAVIER MEDINA; MARIA MEDINA,

Plaintiffs,

vs.

W.E. O’NEIL CONSTRUCTION OFCALIFORNIA, a corporation; DOE 1, DOE 2,DOE 3, DOE 4 and DOE 5 individually andd/b/a W.E. O’NEIL CONSTRUCTION OFCALIFORNIA; O’NEIL CONSTRUCTION, acorporation; DOE 6, DOE 7, DOE 8, DOE 9and DOE 10, individually and d/b/a O’NEILCONSTRUCTION; and DOES 11 through 300,inclusive,

Defendants._____________________________________

)))))))))))))))))))

CASE NO: GC 035877

DECLARATION OF JERRY HILDRETHIN OPPOSITION TO DEFENDANT W.E.O’NEIL’S MOTION FOR SUMMARYJUDGMENT

Hearing Date: October 25, 2007Hearing Time: 8:30 a.m.Hearing Dept.: P

Trial Date: November 26, 2007______________________________________

Complaint filed on August 31, 2005Case Assigned for Judge Pluim, Dept. P

______________________________________

I, JERRY HILDRETH declare, as follows:

1. The matters stated within this declaration are based upon my own firsthand personal

knowledge, and I could competently testify to these matters if I were called upon to do so.

QUALIFICATIONS

2. That I am a construction safety expert and a licensed general contractor. My current resume

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outlining my qualifications in this regard is attached hereto as Exhibit "O." In the past forty (40)

years, I have qualified and testified as an expert witness in the Superior Court of California over 480

times, 55 times in other State Courts, and 2 times in Federal Court. I have further qualified and

testified as an expert witness in various State Courts in Arizona, Hawaii, Nevada, Oregon, Texas and

Washington. I have evaluated activities in over 4,000 construction sites, and been involved in this

regard in over 2,300 civil matters.

3. That I have over 35 year experience in the construction field, working as an assistant

superintendent, construction manager and as a general contractor, with work conducted at both

residential and commercial construction sites.

4. That I currently operate two businesses: One is Hildreth Consulting, through which I provide

analysis and/or testimony in litigation cases involving construction accidents, construction defects,

or fires that take place at construction sites. I have operated my consulting business since 1982. My

other business is Tehachapi Building Systems, through which I provide construction services as a

general contractor and perform risk analysis of proposed construction projects and developments. I

have actively held a general contractor's license since 1988. I also have twenty-five (25) years of

experience in the construction safety field, including thirteen (13) years employed by the California

Division of Occupational Safety and Health Bureau of Crirnina1 Investigation ("CAL-OSHA").

RETENTION, INVESTIGATION PERFORMED AND DOCUMENTS REVIEWED

5. I have been retained as a consultant and as an expert by plaintiffs in the above-entitled case.

If called upon to testify, I could and would competently testify to the facts set forth herein. I have

been provided with and reviewed all discovery generated, including the Project documents, the

OSHA investigation and all depositions. I have also reviewed and relied upon various OSHA

regulations as stated in more detail below.

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RELEVANT FACTS

6. The facts I am relying on include:

i. The distance from the roof opening to the floor where Plaintiff fell through was

approximately 12 feet. [Paulson Depo 28:18-21 (Exhibit B)];

ii. On the morning of the Incident, Jay Paulson (from subcontractor Horizon) saw and

used a ladder through the subject opening to gain access to the roof. The opening only had railings

on three sides, one side was unenclosed and without the railing on all four sides, someone could fall

through the opening. Later, the ladder was moved to a different opening. [Paulson Depo 39:23 - 40:8;

67:9-11; 102:4-8; 128:13 - 16 (Exhibit B)];

iii. Jay Paulson would see for the two weeks before the incident that workers were using

the skylight openings as an area to put a ladder in to gain access to the roof and there was always at

least one side of that opening that was unguarded. [Paulson Depo 74:9 - 23; 129:21-25 (Exhibit B)]

iv. Defendant W.E. O’Neil repeatedly directed all the subcontractors before the incident

to remove all trash or debris from the roof and, specifically, before the incident so that the roofing

contractor could start their work. [Paulson Depo 59:18- 60:6; 60:25 - 61:6; 61:25 - 62:4 (Exhibit B);

Hartman Depo 136:17 - 24 (Exhibit C)]

v. Workers would routinely use the skylight openings to get the trash and debris down

from the roof before the incident, this was observable to anyone walking the project and was done

without a spotter on the second floor to make sure no one would get hit by the debris. [Paulson Depo

54:11 - 55:1; 57:3 - 13; 58: 12 - 20; 59:8 - 13 (Exhibit B)]

vi. Brad Fry was the Project Manager for Defendant W.E. O’Neil the Subject Project

and Michael Hartman was the Superintendent. [Fry Depo 12:22 - 13:1 (Exhibit A)]

vii. Defendant W.E. O’Neil admitted that a skylight opening that is not covered by

plywood and does not have guard rails is an unsafe condition and is dangerous because someone can

fall through the opening. [Fry Depo 40:23 - 41:4; 41:17- 42:2 (Exhibit A); Hartman Depo 45:12 - 21;

46:10 -17 (Exhibit C)]

viii. Defendant W.E. O’Neil admitted that one of its responsibilities was to look for

unsafe conditions, like having the subject opening unguarded with workers working near it without

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harnesses. [Fry Depo 42:4 - 7; 75:9-23 (Exhibit A)]

ix. Defendant W.E. O’Neil admitted that the opening Plaintiff fell through is the type of

unsafe condition it was to look for. [Fry Depo 42:24 - 43:9 (Exhibit A)]

x. Defendant W.E. O’Neil admitted that the subject opening should not be used to

transport materials up to or down from the roof because the opening can create a fall hazard for

people on the roof and it was the type of dangerous activity that Defendant W.E. O’Neil was to

prevent. [Fry Depo 43:10 - 20; 44:17 - 45:18 (Exhibit A)]

xi. Defendant W.E. O’Neil admitted that the removal of the covering on the opening

was a dangerous condition and that the subject opening Plaintiff fell through was an unsafe condition

because it did not have a handrail around it and had workers working around it without harnesses.

[Fry Depo 49:10 - 18; 72:21 - 73:6; 144:12 - 16 (Exhibit A)]

xii. Defendant W.E. O’Neil admitted that it was to perform daily inspections of the roof

and construction area looking for unsafe conditions, including after each day’s work. [Fry Depo

85:15-18 (Exhibit A); Hartman Depo 149:22 - 150:8 (Exhibit C)]

xiii. Defendant W.E. O’Neil admitted that it was familiar with OSHA regulations and was

to look for OSHA violations, whether involving its employees or employees of other subcontractors

for the Subject Project. [Fry Depo 112:14 - 113:6 (Exhibit A)]

xiv. Defendant W.E. O’Neil admitted that it had the responsibility to conduct safety

meetings with all workers and to oversee the subcontractor work, including Plaintiff’s employer

DNM Construction, to make sure its being done safely and complying with all safety requirements.

[Fry Depo 114:24 - 115:23; 133:24 - 134:1 (Exhibit A)]

xv. Defendant W.E. O’Neil admitted that, as of the date of the incident, W.E. O’Neil was

behind schedule and while the owner agreed to extend the deadline for completion, W.E. O’Neil

would not be paid for the additional days. [Fry Depo 120:9 - 13; 121:1 - 4 (Exhibit A)]

xvi. Defendant W.E. O’Neil admitted that the skylight openings were not guarded by

guardrails on the date of the incident and it did not have personal fall restraints available. [Fry Depo

145:13 - 146:1 (Exhibit A)]

xvii. Defendant W.E. O’Neil admitted that it knew that the distance from the opening to the

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floor where Plaintiff fell through was approximately 12 feet and personal fall protection should have

been provided. [Fry Depo 150:17 - 151:1 (Exhibit A)]

xviii. Defendant W.E. O’Neil admitted that Subject Project consisted of the construction of

a two-story assisted living facility of approximately 59,354 gross square feet with 52 units and

common facilities with one level of underground parking and a contract price to it of $6,615,460. [Fry

Depo 159:14 - 25 (Exhibit A)]

xix. Defendant W.E. O’Neil admitted that it “was responsible for initiating, maintaining,

and supervising all safety precaution programs in connection with performance of the contract” [Fry

Depo 160:1 - 11 (Exhibit A and Internal Exhibit 4 - Standard Form Agreement)]

xx. Defendant W.E. O’Neil admitted that it was “to take reasonable precautions for safety

of and shall provide reasonable protection to prevent damage, injury, or loss to employees on the

work and other persons who may be affected thereby." [Fry Depo 160:12 - 19 (Exhibit A and Internal

Exhibit 4 - Standard Form Agreement)]

xxi. Defendant W.E. O’Neil admitted that it was "responsible for complying with all

applicable laws, ordinances rules, regulations [including OSHA regulations], and lawful orders of

public authorities bearing on safety of persons and property or their protection from damage, injury,

or loss." [Fry Depo 161:7 - 18 (Exhibit A and Internal Exhibit 4 - Standard Form Agreement)]

xxii. Defendant W.E. O’Neil admitted that it was "to erect and maintain as required by

existing conditions and performance of the contract, reasonable safeguards for safety and protection,

including posting danger signs and other warnings against hazards promulgating safety regulations

and notifying owners and users of adjacent sites and utilities." [Fry Depo 161:19 - 162:4 (Exhibit A

and Internal Exhibit 4 - Standard Form Agreement)]

xxiii. Defendant W.E. O’Neil admitted that it was “designate a responsible member of its

organization at the site whose duty shall be prevention of accidents” and Brad Fry was that person.

[Fry Depo 162:19 - 163:1 (Exhibit A and Internal Exhibit 4 - Standard Form Agreement)]

xxiv. Defendant W.E. O’Neil admitted that it was supposed to comply with OSHA

regulation 8 CCR § 1511(a) (General Safety Precautions) “No worker shall be required or knowingly

permitted to work in an unsafe place, unless for the purpose of making it safe and then only after

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proper precautions have been taken to protect the employee while doing such work” and that this

included sub-contractor workers. [Fry Depo 166:24 - 167:14 (Exhibit A)]

xxv. Defendant W.E. O’Neil admitted that it was supposed to comply with OSHA regulation

8 CCR § 1511(b) (General Safety Precautions) and it “shall make a thorough survey of the conditions

of the site to determine, so far as practicable, the predictable hazards to employees and the kind and

extent of safeguards necessary to prosecute the work in a safe manner...” [Fry Depo 167:15 - 22

(Exhibit A)]

xxvi. Defendant W.E, O’Neil admitted that it was to comply with OSHA regulation 8 CCR

§ 3212(a)(1) (Floor Openings, Floor Holes and Roofs) and that “[e]very floor and roof opening shall

be guarded by a cover, a guardrail, or equivalent on all open sides. While the cover is not in place,

the openings shall be constantly attended by someone or shall be protected by guardrails.” [Fry Depo

167:23 - 168:23 (Exhibit A)]

xxvii. Defendant W.E. O’Neill admitted that it was to comply with OSHA regulation 8 CCR

§ 3210(a) (Guardrails at Elevated Locations) and that “Guardrails shall be provided on all open sides

of unenclosed elevated work locations, such as: roof openings...or working levels more than 30 inches

above the floor, ground, or other working areas of a building as defined in Section 3207 of the

General Industry Safety Orders.“ [Fry Depo 169:22 - 170:7 (Exhibit A)]

xxviii. Defendant W.E. O’Neill admitted that it had the authority for ensuring that any

hazardous condition would be corrected and that even if the subcontract said the subcontractor was

to fix it, W.E. O'Neil had the ultimate responsibility for actually correcting any hazard itself. [Fry

Depo 170:22 - 25; 171:7 - 14; 172:2 - 12 (Exhibit A)]

xxix. Defendant W.E. O’Neill admitted that if there was an opening that was exposed, not

covered and unguarded then its own employees could be exposed to an unsafe condition. [Fry Depo

287:10 - 15 (Exhibit A)]

xxx. Defendant W.E. O’Neill admitted it had a Safety Policy and Code of Safe Practices

for the Project. [Hartman Depo 19:7 - 14 (Exhibit C, Internal Exhibit 1)]

xxxi. Under W.E. O’Neill’s Code of Safe Practices for this Project, barricades were

required around openings in floors or roofs and whenever necessary to warn or prevent people or

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equipment from falling. [Hartman Depo 20:13-20 (Exhibit C, Internal Exhibit 1)]

xxxii. Under W.E. O’Neil’s Code of Safe Practices for this Project, all elevations at or above

7 and 1/2 feet required 100 percent fall protection systems. [Hartman Depo 21:7-12 (Exhibit C,

Internal Exhibit 1)]

xxxiii. Defendant W.E. O’Neil admitted that it knew before the incident that to gain access

to the roof workers had to use a ladder through the skylight openings, that the ladder would be moved

to different locations and that there was no railing around the subject opening at any time before the

incident. [Hartman Depo 31:13 - 22; 32:21 - 25; 32: 9-11 (Exhibit C)]

xxxiv. Defendant W.E. O’Neil admitted that it knew before the incident that subcontractors

were storing pipes or materials on the roof. [Hartman Depo 48:13-18 (Exhibit C)]

xxxv. Defendant W.E. O’Neil admitted that it saw before the incident that a subcontractor

remove the covers to the skylight openings and throwing materials down from the roof to the second

floor and it never directed anyone not to do that. [Hartman Depo 51:23 - 52:7 (Exhibit C)]

xxxvi. Defendant W.E. O’Neil admitted that it would be an unsafe practice for workers to

throw debris down from the roof to the second floor through the opening and workers below are

exposed to overhead hazards. [Hartman Depo 61:19 - 62:2 (Exhibit C)]

xxxvii. Defendant W.E. O’Neil admitted that it the reason guardrails need to be of certain

height is because workers on the roof may be carrying something where they can't necessarily see

there's an exposed opening and the guard railing is designed to prevent their body from falling into

the opening. [Hartman Depo 62:12 - 19 (Exhibit C)]

xxxviii. Defendant W.E. O’Neil admitted that it did not have a mechanical device available

for the workers to get materials down from the roof. [Hartman Depo 86:22 - 25 (Exhibit C) ]

xxxix. Defendant W.E. O’Neil admitted that when it came to the job site it knew workers

would have to gain access to the roof, get materials and debris up and down from the second floor

to the roof. [Hartman Depo 91:6 - 17 (Exhibit C)]

xl. I understand that there is potentially conflicting testimony as TO who removed the

cover and what Plaintiff did or did not do. As this testimony does not change my opinions, I will state

the facts related by Plaintiff. He was a day laborer at DNM Construction at the time of the August

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3, 2004 incident. [Medina Decl., ¶ 2.]

xli. Although he does not remember his fall, Plaintiff remembers walking on the roof and

now understands that he fell through an unguarded roof opening. [Medina Decl., ¶ 3.]

xlii. Plaintiff did not see the unguarded roof opening before he fell. [Medina Decl., ¶ 4.]

xliii. Plaintiff was not warned that there was an unguarded roof opening before he fell.

[Medina Decl., ¶ 5.]

xliv. Plaintiff did not remove the plywood cover that should have been over the roof

opening. [Medina Decl., ¶ 6.]

xlv. Plaintiff did not throw trash down the unguarded roof opening onto the second floor

before he fell as he had already cleaned the second floor and it would make no sense for him to dirty

up the second floor when he had just cleaned it. [Medina Decl., ¶ 7.]

xlvi. Plaintiff did see other subcontractors on the day of the incident bringing up pipes and

working on the second floor. Before the day of the incident, he would see them take a pipe and ram

the plywood cover to open it up to store the pipes on the roof. [Medina Decl., ¶ 8. ]

xlvii. Plaintiff was one of the workers that put the plywood covers over the openings.


xlviii. Before the day of the incident, Plaintiff would see other subcontractors remove the

plywood covers off the opening to get black and copper pipes through the opening to the roof.


xlix. If Plaintiff saw that the cover had been removed off the opening, he would cover it up

again. But, he was not warned and did not see or hear that someone had taken the cover off the roof

opening he fell through. [Medina Decl., ¶ 11]

xlx. Plaintiff suffered serious, permanent and debilitating injuries as a result of his fall.


OPINIONS

7. Based upon my experience, education, training, background, and review of the materials, it

is my expert opinion that:

i. Clearly under the facts stated above, this was a multiemployer worksite where W.E.

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O’Neil was subject to Cal OSHA regulations as it: a) expressly assumed an obligation to identify and

remedy any unsafe conditions at this project (the correcting employer); b) was an “employer who was

responsible, by contract or through actual practice, for safety and health conditions on the worksite,

which is the employer who had the authority for ensuring that the hazardous condition is corrected

(the controlling employer)” under Labor Code § 6400; c) was an employer who actually created the

hazard (the creating employer); and d) admitted its own employees were exposed to hazards

(exposing employer) from overhead objects being thrown down through the roof openings and from

its own employees falling through the unguarded roof openings.

ii. As part of construction industry standards of custom and practice, the normal

construction pre-job startup meeting is used to address the safety concerns that will occur during the

course of construction activity. The standard of practice in the construction industry is to monitor the

ever changing conditions to recognize when an unsafe/hazardous condition is created, and to take

appropriate steps to correct that condition, or address that unsafe condition so as to render it safe.

iii. Here, W.E. O’Neil failed to comply with its own undertakings and Cal OSHA

regulations set forth in 8 CCR §§ 1511(a), 1511(b), 1629(a), 1632(b), 1670, 1736(f), 3210 (a),

3212(a) and Labor Code §§ 6400(a), 6401, 6402 and 6403. It was on notice from the inception of the

project that there was not (and it failed to provide) a safe and adequate method for workers to get up

to and down from the roof. It was on notice that there was not (and it failed to provide) a safe and

adequate method for workers to get construction materials and debris up to and down from the roof.

It was on notice that as a result of these omissions the covers to the roof openings were being

removed by various subcontractors to either a) gain access to the roof or b) to get materials and/or

debris down from the roof. These were unsafe conditions and practices created by W.E. O’Neil, that

it had the power to correct, and that it failed to correct.

iv. Specifically, W.E. O’Neil failed to comply with and actively and knowingly

violated:

(i) 8 CCR § 1511(a) (General Safety Precautions) in that Plaintiff and other

workers were knowingly permitted to work in an unsafe place;

(ii) 8 CCR § 1511(b) (General Safety Precautions) in that it failed to make a

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thorough survey of the conditions of the site to determine, so far as

practicable, the predictable hazards to employees and the kind and extent

of safeguards necessary to prosecute the work in a safe manner;

(iii) 8 CCR § 1629(a) (Stairways and Ladders) in that this was a structure of

2 or more stories and it did not have a “suitable permanent or temporary

stairways”

(iv) 8 CCR § 1736(f) (Disposal of Waste Material) in that debris was dropped

through holes in the floor without the use of chutes but the area onto

which the material is dropped was not completely enclosed with

barricades. Signs warning of the hazard of falling materials were not

posted at each level.

(v) 8 CCR § 3212(a)(1) (Floor Openings, Floor Holes and Roofs) in that the

subject roof opening Plaintiff fell through was not guarded by a cover, a

guardrail, or equivalent on all open sides. The opening was not constantly

attended by someone or shall be protected by guardrails;

(vi) 8 CCR § 3210(a) (Guardrails at Elevated Locations) in that guardrails

were not provided on all open sides of unenclosed elevated work

locations, such as the subject roof opening;

(vii) 8 CCR § 1632(b) (Floor, Roof, and Wall Openings to Be Guarded) in that

this was a temporary condition where there was a danger of employees or

materials falling through floor or roof openings and the openings were not

guarded by either temporary railings and toeboards or by covers;

(viii) 8 CCR §1670. (Personal Fall Arrest Systems, Personal Fall Restraint

Systems and Positioning Devices) in that the removal of the cover of the

subject opening exposed Plaintiff to fall in excess of 7 and 1/2 feet but he

was not provide an approved personal fall arrest, personal fall restraint or

positioning systems;

(ix) California Labor Code § 6400(a) by failing to furnish employment and a

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place of employment that is safe and healthful for employees” like

Plaintiff, its own employees and other employees on the site;

(x) California Labor Code §6401 in that it failed to furnish and use safety

devices and safeguards and it failed to adopt and use practices, means,

methods, operations, and processes which are reasonably adequate to

render such employment and place of employment safe and healthful. It

failed to every other thing reasonably necessary to protect the life, safety,

and health of employees;

(xi) California Labor Code § 6402 in that it permitted employees (including

Plaintiff, its own employees and other employees) to be in a place of

employment which was not safe and healthful; and

(xii) California Labor Code § 6403 in that it failed to and neglected to (a)

provide and use safety devices and safeguards reasonably adequate to

render the employment and place of employment safe; (b) to adopt and use

methods and processes reasonably adequate to render the employment and

place of employment safe; and (c) do every other thing reasonably

necessary to protect the life, safety, and health of employees.

8. These rules and regulations, applicable to this project, are in place to protect against the

risk of harm faced by a construction worker working near or under unguarded openings and are

designed to prevent the very incident that occurred.

9. W.E. O’Neil, as the general contractor, is required by construction industry standards of

custom and practice to walk the job site at least twice daily and here because of its express

undertakings, continuously, so that he/she/it can verify the work is progressing according to plans

and specifications, verify that the work is being carried out in a safe manner, and fulfill the

above-quoted contract and OSHA regulations and duties.

10. It is recognized in the constmction industry that tripping and falling hazards at and about

work locations are a major safety concern. Falls account for over 60% of all of the construction

accidents that occur. Falls also account for over 40% of all accidents reported to the National Safety

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Council. And, according to the National Safety Council statistics, 14% of all falls of four (4) feet or

less are fatal. It is for the reasons stated above that rules, regulations, standards aud guidelines were

developed to prevent the exposure of construction workers to such risks of serious harm.

11. The falling hazard presented by the removal of the roof opening covers (which in

turn was caused by W.E. O’Neil’s failure to provide a safe and adequate method for workers to get

up to and down from the roof and to get construction materials and debris up to and down from the

roof) should have been recognized by W.E. O’Neil as a serious safety hazard as part ofits on-going

risk hazard analysis on this project that required immediate action.

12. W.E. O’Neil’s failure to appropriately, timely and safely address the existence of this

hazardous condition led to the occurrence of the fall and serious injuries sustained by plaintiff.

13. W.E. O’Neil did not act in accordance with construction industry standards of safe custom

and practice, or take reasonable steps, to ensure that the falling hazards were remedied on August 3,

2004. W.E. O’Neil did not take reasonable steps to ensure that safe access ways to work areas and

means of ingress and egress were maintained, as was its responsibility to do. As a result of W.E.

O’Neil’s failure to take reasonable steps to eliminate the falling hazards, and its failure to ensure and

maintain safe access ways for all employees, including plaintiff, on this job site at and about the

location of the accident, Plaintiff and other employees were unnecessarily exposed to this hazardous

condition. In so doing, W.E. O’Neil’s actions and inactions fell below the standard of a safety

conscious contractor.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct. Executed on October 10, 2007 at Tehachapi, California.

__________________________________Jerry Hildreth


SUMMARY JUDGMENTIN EMPLOYMENT CASE


SUMMARY JUDGMENTIN PRODUCT

LIABILITY CASE

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Declaration of Constance in Opposition to Defendant's Motion for Summary Judgment.wpd - Page 1 04-0790.01

THE HOMAMPOUR LAW FIRM A Professional Law CorporationARASH HOMAMPOUR (State Bar No. 165407)FARZAD YASSINI (State Bar No. 234609)8383 Wilshire Boulevard, Suite 830Beverly Hills, California 90211-2407Phone: (323) 658-8077 | Fax: (323) 658-8477

LAW OFFICES OF DAVID H. GREENBERGDAVID H. GREENBERG (State Bar No. 37950)JEFFREY A. RUDMAN (State Bar No. 198380)8383 Wilshire Boulevard, Suite 336Beverly Hills, California 90211-2407Phone: (323) 782-0500 | Fax: (323) 782-0543

Attorneys for Plaintiffs SAUL CERRILLOS and ALICIA CERRILLOS


FOR THE COUNTY OF LOS ANGELES–CENTRAL DISTRICT

SAUL CERRILLOS, ALICIA CERRILLOS andRAMON CERRILLOS,

Plaintiffs,

v.

DONALDSON COMPANY, INC.; POLLEY,INC., and DOES 1 through 100, inclusive,

Defendants.

)))))) ))))))

CASE NO: BC 344828

DECLARATION OF JOHN A.CONSTANCE IN SUPPORT OFPLAINTIFF’S OPPOSITION TOD E F E N D A N T D O N A L D S O N ’ SM O T I O N F O R S U M M A R YJUDGMENT

Hearing Date: April 28, 2008Hearing Time: 8:30 a.m.Hearing Dept.: 56

Trial Date: July 7, 2008__________________________________

[Assigned to the Hon. Jane L. Johnson,Department 56]

__________________________________

I, JOHN A. CONSTANCE, P.E. declare, as follows:



QUALIFICATIONS

2. I am the principal of The Engineers Collaborative of Canandaigua, NY. For over twenty-five

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years, I have provided industrial ventilation engineering services nationally to the chemical process

industries including the pharmaceutical, food, bulk chemical and cosmetic industries. I am on the

Editorial Advisory Board of Powder and Bulk Engineering magazine. I am a licensed engineer in

New Jersey, New York, Pennsylvania and Delaware. I completed my bachelors degree in Mechanical

Engineering and my masters degree in Management Science at Stevens Institute of Technology in

Hoboken, NJ. I have authored over twenty engineering articles that have been published in a number

of trade magazines. In the late 1960s, I was an engineer in the lead metal division of AT&T on Staten

Island, NY. My responsibilities included new process equipment selection, product quality and

division safety. I represented my division as a member of the plant safety committee. I have served

as a consultant and expert witness on matters relating to powder process safety concerning material

handling and exhaust systems to improve dust and vapor control in the work place. My current

resume outlining my qualifications in this regard is attached hereto as Exhibit "A."


3. I have been retained as a consultant and as an expert by plaintiffs in the above-entitled

case. If called upon to testify, I could and would competently testify to the facts set forth herein. I

have been provided with and reviewed all of the following documents and items of evidence:

i. OSHA Records

ii. OSHA Photographs of the subject scene and product

iii. Plaintiff's Complaint and First Amended Complaint

iv. Defendants’ Answers

v. Defendant Donaldson's ROGS #1 to Plaintiff Saul Cerrillos and Plaintiff's

responses thereto

vi. Defendant Donaldson's POD #1 to Plaintiff Saul Cerrillos and

Plaintiff's responses thereto

vii. Defendant Donaldson's RFA #1 to Plaintiff Saul Cerrillos and Plaintiff's

responses thereto

viii. Reports prepared by Health Science Associates

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ix. Defendant Donaldson’s Initial Disclosures

x. Goff Invoices Bate Nos. 001972-001975

xi. Kelco Invoices Bate Nos. 001977-002076

xii. Photographs taken by Plaintiff’s consultant on May 1, 2006

xiii. Owner's manual for shop vac

xiv. Plaintiff Saul's FROG 1 to Defendant Donaldson, Defendant's responses

thereto and Defendant's supplemental responses thereto

xv. Plaintiff Saul's SROG 1 to Defendant Donaldson, Defendant's responses


xvi. Plaintiff Saul' POD 1 to Defendant Donaldson, Defendant's responses thereto

and Defendant's supplemental responses thereto

xvii. Plaintiff Saul's SROG 2 to Defendant Donaldson and Defendant's responses

thereto

xviii. Plaintiff Saul's POD 2 to Defendant Donaldson and Defendant's responses

thereto

xix. Plaintiff Saul's SROG 3 to Defendant Donaldson and Defendant's responses

thereto

xx. Plaintiff Saul's FROG #1 to Defendant Polley and Defendant's responses

thereto

xxi. Plaintiff Saul's SROG #1 to Defendant Polley, Defendant's responses thereto


xxii. Plaintiff Saul's POD #1 to Defendant Polley, Defendant's responses thereto and

Defendant's supplemental responses thereto

xxiii. Documents produced by Defendant Disa Goff in response to subpoena

xxiv. Deposition Transcript - David Swanston

xxv. Deposition Transcript - Ramon Cerrillos

xxvi. Deposition Transcript - Saul Cerrillos

xxvii. Deposition Transcript - Russell Gurr

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xxviii. Deposition Transcript - Solomon Naman

xxix. Deposition Transcript - Leobardo Nuno

xxx. Deposition Transcript - Bernardo Rodriguez

xxxi. Plaintiff Saul's response to Defendant Polley, Inc.s FROG 1

xxxii. Plaintiff Saul's response to Defendant Polley, Inc.'s RFA 1

xxxiii. Plaintiff Saul's response to Defendant Polley, Inc.'s SROG 1

xxxiv. Plaintiff's response to Defendant Polley, Inc.'s POD 1, Documents produced in

response thereto (Bates Nos. 006244-6349) and additional documents produced in response

thereto (Bates Nos. 006350-6394)

xxxv. Plaintiffs' response to Defendant Polley, Inc.'s FROG 2

xxxvi. Plaintiffs' response to Defendant Polley, Inc.'s RFA 2

xxxvii. Defendant Donaldson's Motion for Summary Judgement

xxxviii. Deposition Transcript of Defendant Donaldson’s Person Most Knowledgeable

- James Boston with exhibits and additional documents produced

xxxix. Portions of Medical Records - Los Angeles County Fire Department

xl. Portions of Medical Records - Harbor UCLA Medical Center

xli. Portions of Medical Records - American Medical Response

xlii. Portions of Medical Records - Torrance Memorial Medical Center

xliii. Photographs of Plaintiff Saul Cerrillos by Torrance Memorial Medical Center

xliv. Photographs of Plaintiff Saul Cerrillos by Western Medical Center

xlv. Additional Photographs of Plaintiff Saul Cerrillos

xlvi. Defendant Polley's Motion for Summary Judgement

xlvii. Photos and video generated during testing and inspections of March 26, 2008

through March 28, 2008.

RELEVANT FACTS


i. Sometime before the incident (he does not remember how long because he did not

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time it), Plaintiff pushed the pedal (shaker bar mechanism) on the side of Defendant Donaldson’s

Torit 1978 Series 81 Dust Collector. (Cerrillos Depo 96:25 - 97:11; 152:19 - 23; Boston Depo 20:7 -

13; 20:24 - 21:5);

ii. Plaintiff Saul Cerrillos removed the bottom panel from the Dust Collector to

clean it. (Cerrillos Depo 110:5 - 16);

iii. Plaintiff saw dust lying in the pan on the bottom of the collector and pulled out the

pan. (Cerrillos Depo 81:10 - 24);

iv. Plaintiff scooped out dust from the pan and emptied it into a barrel.(Cerrillos

Depo 82:14 - 21, 83:4-12, 85:2-4);

v. About half the dust was left in the bottom of the tray before the accident occurred

and there was dust around the area he was working. (Cerrillos Depo 95:24 - 96:15);

vi. The accident happened when he walked back to the Dust Collector and bent down;

he heard an explosion and was covered with fire. (Cerrillos Depo 76:16 - 25; 105:1-7);

vii. Donaldson acquired the Torit product line in the early 70s. (Boston Depo 20:21-

23);

viii. Donaldson recognized that it had to make an effort to ensure that the Dust

Collector product, as its designed, can perform the functions that are expected of it and that risks

associated with use and misuse are addressed. (Boston Depo 68:2-12);

ix. Donaldson recognized that its dust collectors could be used with combustible dust.

(Boston Depo 73:18-22);

x. Donaldson recognized that airborne or suspended combustible dust can contribute

to an explosion. (Boston Depo 91:2-5);

xi. Donaldson knew when the subject Dust Collector was sold that there were

instances where the dusts being utilized might have explosion characteristics and that one of the risks

are explosions. (Boston Depo 82:5-11; 84:10-13);

xii. Dust/combustible powder collects on the filters of the Dust Collector and to get

the dust/powder off, one kicks the exterior shaker pedal vigorously which causes a steel bar inside

the Dust Collector to contact the metal clips housing the filters, lifting them and knocking the dust

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off the filters and into the pan of the Dust Collector below. In its 1972 and 1983 manuals and the

manual Plaintiff’s employer had for the subject Dust Collector, Donaldson advises the user: “After

each day’s operation, shake the filters to remove the clinging material. To perform this operation,

push down vigorously on the filter shaker lever located on the side of the cabinet...[If] the collected

material sticks to the filters, they may require occasional hand brushing or vacuum cleaning.” (Boston

Depo 88:17 - 89:6; 95:8 -25; 98:2 - 13, 99:12 - 25; 111:16 - 112:5; 126:21 - 127:2; 129:7 - 130:2;

Gurr Depo 106: 14-21; 107:10 - 13);

xiii. As of 1983, Donaldson knew that pulling sparks into the Dust Collector could

produced a potential hazardous situation if there was combustible dust in the collector (Boston Depo

104:9 - 16);

xiv. Donaldson concedes that the Magnesium dust in the Dust Collector at the time

of the incident was combustible dust which was also explosion risk dust. (Boston Depo 105:16 - 23);

xv. Donaldson knew and concedes that bringing in an ignition source in the form

of a spark or burning material to a collection of dust in the Dust Collector could propagate a fire.

(Boston Depo 162:13 - 25);

xvi. Donaldson (and its predecessor Torit before 1946) knew that the subject Dust

Collector would involve the introduction of sparks, which could ignite the dust in the collector.

(Boston Depo 160:15 - 161:25);

xvii. Donaldson does not contend that the Dust Collector was substantially changed

from the time it left their possession until the incident. (Boston Depo 172:19- 173:10);

xviii. Donaldson does not contend that the dust collector was used or misuse in a

way that was not reasonably foreseeable to it. (Boston Depo 173:11 - 16);

xix. As of 1978, Donaldson had the brass shaker bar, the stainless steel bag clips

and the hopper based system as options for its dust collectors (Boston Depo 55:22 - 56:1; 77:7 - 14)

xx. Donaldson has not done any testing, research or inquiry into why a hopper-

based system would be safer than the way the dust collector was sold in 1978. (Boston Depo 78:5-9);

xxi. Donaldson has never tested out why its brass shaker bar may be safer than the

steel shaker bar. (Boston Depo 85:25-86:2);

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xxii. Prior to 1978, Donaldson did not conduct any evaluation of what

modifications would be made to the dust collector to mitigate against explosion risks.(Boston Depo

83:12 - 18);

xxiii. Donaldson has not done anything to identify potential safety hazards or issues

when using its dust collectors. (Boston Depo 149:25 - 150:6; 151:2-7);

xxiv. Donaldson has not done any testing of its dust collectors to see under what

conditions a combustible event could be created when it contains magnesium, aluminum or iron dust


xxv. Donaldson has not done any testing to determine under what circumstances a

spark can be created when using, cleaning or maintaining one of its dust collectors and it has not

made any efforts to prohibit a spark from being created (Boston Depo 182:1 -8; 182:15 - 183:1)

xxvi. Donaldson has not done any testing to determine how to prohibit a spark within

its dust collectors from coming into contact with combustible dust on filters, at the bottom of the pan

or that is airborne. (Boston Depo 186:3 - 12)

xxvii. Donaldson has no evidence that as of 1978 it was not feasible to incorporate as a

standard item on the dust collector: a) the brass shaker bar mechanism, b) stainless steel bag clips,

or c) the hopper base five-gallon pack system. (Boston Depo 192:7-22; 193:1-8)

xxviii. Donaldson testified that it does not have any evidence that the warning (contained

in its 1983 manual regarding combustible materials with dust generated can create a potential fire

hazard with sparks in the dust collector) was communicated to the user or purchaser of the dust

collector at any time. This warning was not contained in its 1972 manual (Boston Depo 101:4 - 9;

101:15 - 19; 103:14 - 25; 104:22 - 105:6);

xxix. Donaldson is not aware of any warnings that were affixed to the subject Dust

Collector. (Boston Depo 106:9 -12);

xxx. As of 1998, Donaldson was on notice that it was shipping filter bags for a

Donaldson Dust Collector to Plaintiff’s employer, Mechanical Metal Finishing (Boston Depo 145:20

- 146:18; 146:22-25);

xxxi. It was Mechanical Metal’s practice to comply with warnings or placards that were

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on devices it put into operation. (Naman Depo 111:16-20)

xxxii. Donaldson did not communicate to Mehcanical Metal directly or in the form of

a warning on the subject Dust Collector that it should not be used with combustible dust, that the

shaker pedal should be brass or that it lacked explosion vents. (Naman Depo 116:21 - 117:4; 118:9 -

13; 118:20-23)

xxxiii. Samples taken by OSHA (#32407) from the Dust Collector analyzed by

Health Sciences show the presence of Aluminum, Iron and Magnesium. (Exhibit E, portion of Health

Science Records);

xxxiv. It is also claimed that samples taken by OSHA (#32403) from inside the shop

vac show the presence of Aluminum and Magnesium. (Swanston Depo 73:16-19 and Exhibit E,

portion of Health Science Records);

TESTING AND OPINIONS

5. Based upon my experience, education, training, background, testing and review of the

materials, I have reach the following expert opinions detailed below.

6. The subject Donaldson Torit Model 81 Dust Collector is a cabinet that contains filters, a

fan and a motor. Duct work from the collector captures dust at the source or point of dust generation.

The suction of the motor driven fan causes the dust to travel through the duct work into the cabinet

with the heavier dust particles falling to the bottom of the cabinet and the lighter dust particulars

getting captured by the envelope filters. The filters are cleaned by shaking them so that the dust on

the filters falls to the bottom of the cabinet. The dust is then removed for disposal.

7. On March 26, 2008, I along with Plaintiff’s other consultant, Joseph Romig, P.h.D,

examined and documented a Ridgid 12 gallon Shop Vac (“Shop Vac”) which is substantially similar

to the Ridgid 9 gallon shop vac involved in the incident. A true and correct copies of photographs of

the Shop Vac in and out of its carton are attached as Exhibit G.

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8. It is my understanding from Plaintiff’s attorney that the actual samples of dust/powder

obtained by OSHA from the scene, Dust Collector and shop vac were lost. The 180-325 mesh

Magnesium and Aluminum powder (“combustible powder”) obtained by Dr. Romig is sufficiently

similar to that which would be produced in the operation of the subject Dust Collector at the time of

the incident and for purposes of testing. The combustible powder is powder/dust that can be ignited

by a spark so it is the effective equivalent to the subject powder/dust at the time of the incident and

its under 420 microns (which is defined as a dust) as it was at an average of 60 microns. This product

is combustible as we placed a small amount of the combustible powder into a simple flint ignitor

(which is used to light a blow torch) which creates a hot mechanical spark and which easily ignited

the combustible powder. A true and correct copy of video depicting this is attached as Exhibit M.

9. To determine if the Shop Vac (or its electric motor) involved in the incident was the

original ignition source, we ran a series of tests on the Shop Vac vacuuming the screened combustible

powder (and the powder with the turnings added) straight out of a bucket. A true and correct copy

of photographs depicted this are attached as Exhibit H.

10. We alternated the use of the Shop Vac with a Ridgid fine filter, Ridgid standard filter

and no filter. A true and correct copy of photographs of the Ridgid fine filter and Ridgid standard

filter are attached as Exhibits I and J, respectively.

11. During the vacuuming operations and whether with a fine filter, standard filter or no filter,

the combustible powder was not ignited during any of the eleven tests.

12. When we took the filter off the Shop Vac and vacuumed the combustible powder, the

powder would blow through the unit (in through the inlet and out through the outlet and onto the

white sheet) and would not ignite in the motor or anywhere within the Shop Vac. A true and correct

copy of photographs depicting this are attached as Exhibit K.

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13. When the Shop Vac vacuums the combustible powder, its motor driven fan draws the

powder into the container and with the fine filter virtually no powder is expelled out the outlet, with

the standard filter very little powder is expelled and when there is no filter the powder is expelled out

as shown in Exhibit K.

14. We also confirmed that virtually no combustible powder is directed from the bottom

chamber of the Shop Vac to the motor. The only opening between the dirty air side of the Shop Vac

and the clean air side (where the motor is) is where the motor shaft passes through the Shop Vac top

cover to connect to the fan which is on the dirty air side of the Shop Vac. However, there is a nut,

washer and gasket that would prevent the combustible powder from getting from the dirty air side into

the clean air side where the motor is. The cover also acts as a barrier to powder getting through. A

true and correct copy of photographs depicting this are attached as Exhibit L.

15. Testing confirmed that introducing combustible powder to the motor of the Shop Vac

without a filter would not produce a dust cloud sufficient to produce the fire ball that occurred in the

instant event. In other words, there would not be an ignition from the vacuum motor because not

enough combustible powder could get through the sealed fan motor shaft hole in the Shop Vac top

cover (which acts like a secondary filter itself.)

16. Testing also confirmed that the Shop Vac motor is fan cooled and the fan blows air up and

away from the motor, so no combustible powder would have drifted out from the air and onto the

motor because the air that is cooling the motor would blow the powder away.

17. On March 27, 2008, we went to Mechanical Metal Finishing and inspected the subject

Dust Collector and scene.

18. On March 28, 2008, we conducted more testing. We used a 2ft by 2ft by 2ft explosion box

(consisting of a steel structure, with plexi-glass on the sides and bottom, and with a light paper board

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on top for venting.) We put approx. 1-2 lbs of the combustible powder in the bottom of the box

(whereas I would estimate that at the time of the incident, if the dust collector pan was half filled with

dust that dust would weigh considerably more than 1-2 lbs and likely 50lbs). Installed in the box was

a hot surface ignitor. We placed some of the combustible powder on the igniter and turned the ignitor

on. The ignitor then heated up and ignited the combustible powder resting on the ignitor. We then

turned on the compressed air which was directed down to the pile of combustible powder and created

a dust cloud or suspended powder. The suspended dust/powder then ignited and created the fireball

shown in the video and in the snapshot on the left below. If one rotates the box so that instead of

venting upward towards the sky as shown in the video (and the snapshot on the left below) it vents

towards someone bending down in front of the dust collector (as shown in the illustration on the right)

then the video would demonstrate and illustrate why the subject dust collector is defective in design

because it unnecessarily vents the fire directly towards the user. True and correct copies of

photographs and video depicting this testing are attached hereto as Exhibits N and O, respectively.

19. We also inspected a new Donaldson Torit Model 84 Dust Collector, which is identical

to the subject Dust Collector Model 81 except for the size of the fan motor (3 hp versus 1.5 hp) and

this difference does not impact our analysis.

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20. My review of the scene photographs and inspection of the subject dust collector and of

the new Donaldson Model 84 Series Dust Collector confirm that at the time of the use of the dust

collector and incident, it was substantially the same as when it left Donaldson’s possession.

21. The subject Dust Collector was used at the time of the incident in a way that was

foreseeable to Donaldson. It was being used with combustible powder/dust and had to be cleaned by

Plaintiff by taking the bottom panel off to access the dust pan at the bottom of the collector. The

shaker pedal would have to be pushed down vigorously by Plaintiff’s foot to shake the filters and to

cause the combustible powder/ dust caked on the filters to fall to the pan below. This would cause

suspended powder/dust or a dust cloud, as would scooping the dust out to dispose of it. The creation

of the smoldering material in the bottom of the pan was foreseeable to Donaldson as there would be

many ways a spark or ignition can cause the smoldering as described by Dr. Romig and

acknowledged by Donaldson.

22. The design of the subject Dust Collector was defective and a substantial factor in causing

the harm to Plaintiff in that the fire propagated and vented out of the opening created by the removal

of the front panel and directly onto Plaintiff. Further, the Dust Collector was sold for use with dust

(whether combustible or not), with a pull out dust tray removal system and with a steel shaker bar and

steel metal clips for the filter bags. It was also defective because it lacked certain necessary safety

devices that would have prevented the incident in that the subject fire would more likely than not

have not occurred and/or it would not have vented directly towards the bent over Plaintiff. These

necessary safety devices (all which Defendant had available as options at time of sale and the benefits

of which outweighed the negligible risks of the safety devices) included: 1) a hopper with a pail pack

material removal system, 2) explosion vent in the back of the dust collector, 3) spark proof shaker

bar, and 4) stainless steel clips.

23. As part of my testing and evaluation, I inspected Donaldson’s Pail Pack material removal

system. A true and correct copy of a photograph of the Pail Pack is attached hereto as Exhibit Y.

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24. The pail pack system connects to the bottom of the Dust Collector hopper and contains

a manual gate valve that can isolate the interior of the Dust Collector from any combustible powder

in the pail. In the removal and emptying of the pail, any sparks or fire occurring inside the Dust

Collector would be isolated from the pail. During the cleaning process, there is a distinction between

using the Dust Collector as sold at the time of the incident (where one has to kick the shaker pedal

vigorously, remove the bottom panel and expose the combustible dust in the bottom tray) and if it had

been equipped with the hopper and pail pack dust removal system. With the later safety device, the

majority of the combustible powder generated during use of the machine would fall through the open

gate into the pail just like into the tray system of the Dust Collector as sold. But, with the pail pack

system, when the user is ready to shake the filter bags, he would first close the gate, remove that pail

and empty it and then put the pail back in place. He would then shake the filters through a handlebar

device (versus the foot pedal) but with the gate to the pail closed. If an explosive event were to occur,

it would not vent towards the user because there is no opening towards him (there is no panel that is

removed.) After shaking the filters, the user does open the gate to cause the powder to then fall into

the pail, but if a smoldering event then fell into the pail, the user would still be protected because

there is no opening or venting towards him. In addition to the safety feature of the pail pack, because

the user has initially emptied the pail (before any shaking of the filters) there is significantly less

combustible powder to ignite and cause a fire and injury of the type suffered by Plaintiff (whereas

with the pan system 100% of the combustible dust collected/fuel is available for fire and explosion.)

A depiction of the difference between the subject Dust Collector sold with the pan removal system

(the one on the left) and the pail pack hopper system (the one on the right) is shown on Exhibit AA,

(Donaldson’s brochure):

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25. The subject dust collector (shown in the illustration on the left) vents the explosion or

fire directly at the user who is cleaning it (like Plaintiff.) A dust collector equipped with a hopper pail

pack dust removal system (shown on the right) vents away from the user.

26. The missing spark proof shaker bar and stainless steel clips mitigate against the creation

of an impact spark whereas the shaker bar and clips on the subject Dust Collector as sold were not

spark proof.

27. The subject Dust Collector was defective in warning as it failed to warn of these defects.

A sample warning placard could have been riveted and affixed to the subject Dust Collector right next

to the TORIT Label on the Dust Collector should state: DO NOT USE THIS DUST COLLECTOR

WITH COMBUSTIBLE METAL OR ORGANIC DUSTS (LIKE MAGNESIUM, ALUMINUM,

GRAIN, COTTON, FLOUR OR PAPER) BECAUSE FIRE AND EXPLOSION CAN OCCUR.

CONSULT THE PROPER SAFETY AUTHORITIES REGARDING PROPER METHODS OF

INSTALLATION AND USAGE. A true and correct copy of a photograph of the subject dust

collector taken on March 27, 2008 is attached as Exhibit “Z.”

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28. When Donaldson acquired the dust collector product line from Torit in the early 70s, the

fact that Torit offered such safety options as spark traps, brass shaker bars, explosion vents, etc. and

Torit’s own manuals from the early 1940's (Exhibit W - which states: “there is a danger of fire, in any

accumulation of inflammable material there might be in the dust pan underneath the filter assembly

in Torit dust collectors”) would directly tell it and any reasonable manufacturer that there is a

significant risk of an explosion event or fire with these dust collectors when they are used with

combustible dust and that the subject Dust Collector should either not be sold for use with

combustible dust or, at a minimum, equipped with the above-referenced safety devices and warning

placard.

29. The subject dust collector as sold by Defendant Donaldson had the potential risks detailed

above that were known or knowable by the use of scientific knowledge available at the time of

manufacture, distribution and sale.

30. These potential risks presented a substantial danger to user of the dust collector.

31. An ordinary consumer or user of the dust collector would not have recognized these

potential risks.

32. Donaldson failed to adequately warn of these potential risks.

33. Donaldson was negligent in selling, inspecting and testing the subject dust collector in

that it failed to use the amount of care in designing, inspecting and testing the dust collector that a

reasonably careful manufacturer would use in similar circumstances to avoid exposing others to a

foreseeable risk of harm.

34. Donaldson was negligent by not using reasonable care to warn about the dust collector’s

dangerous condition as detailed above or about facts that make the dust collector likely to be

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Declaration of Constance in Opposition to Defendant's Motion for Summary Judgment.wpd - Page 16

dangerous. It knew or reasonably should have known that the dust collector was dangerous or was

likely to be dangerous when used in a reasonably foreseeable manner. Donaldson knew or reasonably

should have known that users would not realize the danger and failed to adequately warn of the

danger. A reasonable manufacturer under the same or similar circumstances would have warned of

the danger. Donaldson’s failure to warn was a substantial factor in causing Plaintiff’s harm.

35. As conceded by Donaldson (where it confirmed that bringing in an ignition source in the

form of a spark or burning material to a collection of dust in the Dust Collector could propagate a

fire) and shown by our testing, the ignition source is ultimately irrelevant when evaluating the

excessively dangerous design of the subject Dust Collector when used with combustible dust. The

design of the subject Dust Collector unnecessarily vents the fire and forces directly out the front open

panel and towards the user during the cleaning process. Any ignition source within the subject Dust

Collector is extremely dangerous given the way it is designed as it has a load of fuel (combustible

dust) in the tray, which when ignited can ignite any suspended dust present (as a result of normal

cleaning operations) and/or produce and ignite suspended dust in either case resulting in flame and

forces that would come out at the user; this is what the evidence and testing indicate occurred in the

subject event.

I declare under penalty of perjury under the laws of the United States of America and the State

of California that the foregoing is true and correct. Executed on April 11, 2008 at _______________,

______.

__________________________________John A. Constance, P.E.

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Declaration of Dr. Romig in Opposition to Defendant's Motion for Summary Judgment.wpd - Page 1

THE HOMAMPOUR LAW FIRM A Professional Law CorporationARASH HOMAMPOUR (State Bar No. 165407)FARZAD YASSINI (State Bar No. 234609)8383 Wilshire Boulevard, Suite 830Beverly Hills, California 90211-2407Phone: (323) 658-8077 | Fax: (323) 658-8477

LAW OFFICES OF DAVID H. GREENBERGDAVID H. GREENBERG (State Bar No. 37950)JEFFREY A. RUDMAN (State Bar No. 198380)8383 Wilshire Boulevard, Suite 336Beverly Hills, California 90211-2407Phone: (323) 782-0500 | Fax: (323) 782-0543

Attorneys for Plaintiffs SAUL CERRILLOS and ALICIA CERRILLOS


FOR THE COUNTY OF LOS ANGELES–CENTRAL DISTRICT

SAUL CERRILLOS, ALICIA CERRILLOS andRAMON CERRILLOS,

Plaintiffs,

v.

DONALDSON COMPANY, INC.; POLLEY,INC., and DOES 1 through 100, inclusive,

Defendants.

)))))) ))))))

CASE NO: BC 344828

DECLARATION OF JOSEPH ROMIG,Ph.D. IN SUPPORT OF PLAINTIFF’SOPPOSITION TO DEFENDANTDONALDSON’S MOTION FORSUMMARY JUDGMENT

Hearing Date: April 28, 2008Hearing Time: 8:30 a.m.Hearing Dept.: 56

Trial Date: July 7, 2008__________________________________

[Assigned to the Hon. Jane L. Johnson,Department 56]

__________________________________

I, JOSEPH ROMIG, Ph.D., declare, as follows:



QUALIFICATIONS

2. I have a B.A. in physics (Colorado 1963), a B.Sc./M.Sc in Theoretical Physics (Oxford

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1965/1970), and a Ph.D. in astrogeophysics (Colorado 1975). I am a Certified Fire and Explosion

Investigator, and a Certified Vehicle Fire Investigator and a Certified Fire Investigation Instructor.

From 1975-1980 I did consulting work on fires, explosions and carbon monoxide detection. From

1980 to the present I have worked as a consultant scientist for Ponderosa Associates on the origin and

cause of fires, explosions and carbon monoxide incidents. I have been involved in approximately

1000 such investigations: of these roughly 90% are fires and explosions. My current resume further

outlining my qualifications in this regard is attached hereto as Exhibit "B."


3. I have been retained as a consultant and as an expert by plaintiffs in the above-entitled

case. If called upon to testify, I could and would competently testify to the facts set forth herein. I

have been provided with and reviewed all of the following documents and items of evidence:

i. OSHA Records

ii. OSHA Photographs of the subject scene and product

iii. Plaintiff's Complaint and First Amended Complaint

iv. Defendants’ Answers

v. Defendant Donaldson's ROGS #1 to Plaintiff Saul Cerrillos and Plaintiff's

responses thereto

vi. Defendant Donaldson's POD #1 to Plaintiff Saul Cerrillos and

Plaintiff's responses thereto

vii. Defendant Donaldson's RFA #1 to Plaintiff Saul Cerrillos and Plaintiff's

responses thereto

viii. Reports prepared by Health Science Associates

ix. Defendant Donaldson’s Initial Disclosures

x. Goff Invoices Bate Nos. 001972-001975

xi. Kelco Invoices Bate Nos. 001977-002076

xii. Photographs taken by Plaintiff’s consultant on May 1, 2006

xiii. Owner's manual for shop vac

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xiv. Plaintiff Saul's FROG 1 to Defendant Donaldson, Defendant's responses


xv. Plaintiff Saul's SROG 1 to Defendant Donaldson, Defendant's responses


xvi. Plaintiff Saul' POD 1 to Defendant Donaldson, Defendant's responses thereto


xvii. Plaintiff Saul's SROG 2 to Defendant Donaldson and Defendant's responses

thereto

xviii. Plaintiff Saul's POD 2 to Defendant Donaldson and Defendant's responses

thereto

xix. Plaintiff Saul's SROG 3 to Defendant Donaldson and Defendant's responses

thereto

xx. Plaintiff Saul's FROG #1 to Defendant Polley and Defendant's responses

thereto

xxi. Plaintiff Saul's SROG #1 to Defendant Polley, Defendant's responses thereto


xxii. Plaintiff Saul's POD #1 to Defendant Polley, Defendant's responses thereto and

Defendant's supplemental responses thereto

xxiii. Documents produced by Defendant Disa Goff in response to subpoena

xxiv. Deposition Transcript - David Swanston

xxv. Deposition Transcript - Ramon Cerrillos

xxvi. Deposition Transcript - Saul Cerrillos

xxvii. Deposition Transcript - Russell Gurr

xxviii. Deposition Transcript - Solomon Naman

xxix. Deposition Transcript - Leobardo Nuno

xxx. Deposition Transcript - Bernardo Rodriguez

xxxi. Plaintiff Saul's response to Defendant Polley, Inc.s FROG 1

xxxii. Plaintiff Saul's response to Defendant Polley, Inc.'s RFA 1

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xxxiii. Plaintiff Saul's response to Defendant Polley, Inc.'s SROG 1

xxxiv. Plaintiff's response to Defendant Polley, Inc.'s POD 1, Documents produced in

response thereto (Bates Nos. 006244-6349) and additional documents produced in response

thereto (Bates Nos. 006350-6394)

xxxv. Plaintiffs' response to Defendant Polley, Inc.'s FROG 2

xxxvi. Plaintiffs' response to Defendant Polley, Inc.'s RFA 2

xxxvii. Defendant Donaldson's Motion for Summary Judgement

xxxviii. Deposition Transcript of Defendant Donaldson’s Person Most Knowledgeable

- James Boston with exhibits and additional documents produced

xxxix. Portions of Medical Records - Los Angeles County Fire Department

xl. Portions of Medical Records - Harbor UCLA Medical Center

xli. Portions of Medical Records - American Medical Response

xlii. Portions of Medical Records - Torrance Memorial Medical Center

xliii. Photographs of Plaintiff Saul Cerrillos by Torrance Memorial Medical Center

xliv. Photographs of Plaintiff Saul Cerrillos by Western Medical Center

xlv. Additional Photographs of Plaintiff Saul Cerrillos

xlvi. Defendant Polley's Motion for Summary Judgement

xlvii. Photos and video generated during testing and inspections of March 26, 2008

through March 28, 2008.

RELEVANT FACTS


i. Sometime before the incident (he does not remember how long because he did not

time it), Plaintiff pushed the pedal (shaker bar mechanism) on the side of Defendant Donaldson’s

Torit 1978 Series 81 Dust Collector. (Cerrillos Depo 96:25 - 97:11; 152:19 - 23; Boston Depo 20:7 -

13; 20:24 - 21:5);

ii. Plaintiff Saul Cerrillos removed the bottom panel from the Dust Collector to

clean it. (Cerrillos Depo 110:5 - 16);

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iii. Plaintiff saw dust lying in the pan on the bottom of the collector and pulled out the

pan. (Cerrillos Depo 81:10 - 24);

iv. Plaintiff scooped out dust from the pan and emptied it into a barrel.(Cerrillos

Depo 82:14 - 21, 83:4-12, 85:2-4);

v. About half the dust was left in the bottom of the tray before the accident occurred

and there was dust around the area he was working. (Cerrillos Depo 95:24 - 96:15);

vi. The accident happened when he walked back to the Dust Collector and bent down;

he heard an explosion and was covered with fire. (Cerrillos Depo 76:16 - 25; 105:1-7);

vii. Donaldson acquired the Torit product line in the early 70s. (Boston Depo 20:21-

23);

viii. Donaldson recognized that it had to make an effort to ensure that the Dust

Collector product, as its designed, can perform the functions that are expected of it and that risks

associated with use and misuse are addressed. (Boston Depo 68:2-12);

ix. Donaldson recognized that its dust collectors could be used with combustible dust.


x. Donaldson recognized that airborne or suspended combustible dust can contribute

to an explosion. (Boston Depo 91:2-5);

xi. Donaldson knew when the subject Dust Collector was sold that there were

instances where the dusts being utilized might have explosion characteristics and that one of the risks

are explosions. (Boston Depo 82:5-11; 84:10-13);

xii. Dust/combustible powder collects on the filters of the Dust Collector and to get

the dust/powder off, one kicks the exterior shaker pedal vigorously which causes a steel bar inside

the Dust Collector to contact the metal clips housing the filters, lifting them and knocking the dust

off the filters and into the pan of the Dust Collector below. In its 1972 and 1983 manuals and the

manual Plaintiff’s employer had for the subject Dust Collector, Donaldson advises the user: “After

each day’s operation, shake the filters to remove the clinging material. To perform this operation,

push down vigorously on the filter shaker lever located on the side of the cabinet...[If] the collected

material sticks to the filters, they may require occasional hand brushing or vacuum cleaning.” (Boston

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Depo 88:17 - 89:6; 95:8 -25; 98:2 - 13, 99:12 - 25; 111:16 - 112:5; 126:21 - 127:2; 129:7 - 130:2;

Gurr Depo 106: 14-21; 107);

xiii. As of 1983, Donaldson knew that pulling sparks into the Dust Collector could

produced a potential hazardous situation if there was combustible dust in the collector (Boston Depo

104:9 - 16);

xiv. Donaldson concedes that the Magnesium dust in the Dust Collector at the time

of the incident was combustible dust which was also explosion risk dust. (Boston Depo 105:16 - 23);

xv. Donaldson knew and concedes that bringing in an ignition source in the form

of a spark or burning material to a collection of dust in the Dust Collector could propagate a fire.

(Boston Depo 162:13 - 25);

xvi. Donaldson (and its predecessor Torit before 1946) knew that the subject Dust

Collector would involve the introduction of sparks, which could ignite the dust in the collector.

(Boston Depo 160:15 - 161:25);

xvii. Donaldson does not contend that the Dust Collector was substantially changed

from the time it left their possession until the incident. (Boston Depo 172:19- 173:10);

xviii. Donaldson does not contend that the dust collector was used or misuse in a

way that was not reasonably foreseeable to it. (Boston Depo 173:11 - 16);

xix. Samples taken by OSHA (#32407) from the Dust Collector analyzed by

Health Sciences show the presence of Aluminum, Iron and Magnesium. (Exhibit E, portion of Health

Science Records);

xx. It is also claimed that samples taken by OSHA (#32403) from inside the shop

vac show the presence of Aluminum and Magnesium. (Swanston Depo 73:16-19 and Exhibit E,

portion of Health Science Records);

TESTING AND OPINIONS

5. Based upon my experience, education, training, background, testing and review of the

materials, I have reach the following expert opinions detailed below.

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6. On March 26, 2008, I along with Plaintiff’s other consultant, John Constance, examined

and documented a Ridgid 12 gallon Shop Vac (“Shop Vac”) which is substantially similar to the

Ridgid 9 gallon shop vac involved in the incident (and which Ridgid advised is no longer being

manufactured). A true and correct copies of photographs of the Shop Vac in and out of its carton are

attached as Exhibit G.

7. We purchased item #CH2081 from a company called Skylighter. This product is 180-325

mesh Magnesium and Aluminum powder (“combustible powder”) mixed with Magnesium turnings.

The turnings can be and were removed through screening. This product is combustible as we placed

a small amount of the combustible powder into a simple flint ignitor (which is used to light a blow

torch) which creates a hot mechanical spark and which easily ignited the combustible powder. A true

and correct copy of video depicting this is attached as Exhibit M.

8. To determine if the Shop Vac (or its electric motor) involved in the incident was the

original ignition source, we ran a series of tests on the Shop Vac vacuuming the screened combustible

powder (and the powder with the turnings added) straight out of a bucket. A true and correct copy

of photographs depicted this are attached as Exhibit H.

9. We alternated the use of the Shop Vac with a Ridgid fine filter, Ridgid standard filter and

no filter. A true and correct copy of photographs of the Ridgid fine filter and Ridgid standard filter

are attached as Exhibits I and J, respectively.

10. During the vacuuming operations and whether with a fine filter, standard filter or no filter,

the combustible powder was not ignited during any of the eleven tests.

11. When we took the filter off the Shop Vac and vacuumed the combustible powder, the

powder would blow through the unit (in through the inlet and out through the outlet and onto the

white sheet) and would not ignite in the motor or anywhere within the Shop Vac. A true and correct

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copy of photographs depicting this are attached as Exhibit K.

12. When the Shop Vac vacuums the combustible powder, its motor driven fan draws the

powder into the container and with the fine filter virtually no powder is expelled out the outlet, with

the standard filter very little powder is expelled and when there is no filter the powder is expelled out

as shown in Exhibit K.

13. We also confirmed that virtually no combustible powder is directed from the bottom

chamber of the Shop Vac to the motor. The only opening between the dirty air side of the Shop Vac

and the clean air side (where the motor is) is where the motor shaft passes through the Shop Vac top

cover to connect to the fan which is on the dirty air side of the Shop Vac. However, there is a nut,

washer and gasket that would prevent the combustible powder from getting from the dirty air side into

the clean air side where the motor is. The cover also acts as a barrier to powder getting through. A

true and correct copy of photographs depicting this are attached as Exhibit L.

14. Testing confirmed that introducing combustible powder to the motor of the Shop Vac

without a filter would not produce a dust cloud sufficient to produce the fire ball that occurred in the

instant event. In other words, there would not be an ignition from the vacuum motor because not

enough combustible powder could get through the sealed fan motor shaft hole in the Shop Vac top

cover (which acts like a secondary filter itself.)

15. Testing also confirmed that the Shop Vac motor is fan cooled and the fan blows air up and

away from the motor, so no combustible powder would have drifted out from the air and onto the

motor because the air that is cooling the motor would blow the powder away.

16. The damage to the subject Dust Collector and to its hosing depicted in the scene

photographs and the burns to Plaintiff are consistent with an upward and outward propagation of

flame from the Dust Collector. Samples of these OSHA photos are attached as Exhibit X.

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17. On March 27, 2008, we went to Mechanical Metal Finishing and inspected the subject

Dust Collector and scene.

18. On March 28, 2008, we conducted more testing. We used a 2ft by 2ft by 2ft explosion box

(consisting of a steel structure, with plexi-glass on the sides and bottom, and with a light paper board

on top for venting.) We put approx. 1-2 lbs of the combustible powder in the bottom of the box.

Installed in the box was a hot surface ignitor. We placed some of the combustible powder on the

igniter and turned the ignitor on. The ignitor then heated up and ignited the combustible powder

resting on the ignitor. We then turned on the compressed air which was directed down to the pile of

combustible powder and created a dust cloud or suspended powder. The suspended dust/powder then

ignited and created the fireball shown in the video. If one rotates the box so that instead of venting

upward towards the sky as shown in the video it vents towards someone bending down in front of the

dust collector then the video would demonstrate and illustrate the type of fireball that engulfed

Plaintiff and propagated up through the Dust Collector duct work. True and correct copies of

photographs and video depicting this testing are attached hereto as Exhibits N and O, respectively.

19. We also inspected a new Donaldson Torit Model 84 Dust Collector.

20. Our testing confirmed and it is my expert opinion that the shop vac involved in the

incident was not a competent ignition source.

21. It is my expert opinion that the ignition source more likely than not involved the

mechanical contact of the Dust Collector’s steel shaker bar and the metal clips holding the Dust

Collector’s filters which generated either: a) frictional heat between bar and the clips that resulted in

a hot metal fragment or particles that caused smoldering in the powder pile in the bottom of the pan;

and/or b) frictional heat between the bar and the clips that ignited combustible powder on the bar and

clips which resulted in hot particles that caused smoldering in the powder pile in the bottom of the

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pan. The smoldering material then over time did not extinguish because of the amount of combustible

powder in the pan and ultimately resulted in the conflagration and subject event burning Plaintiff. An

every day example of this phenomenon is where a person believes that they extinguished a wood fire

in their fire place and the fire continues to smolder undetected and later erupts without any direct

disturbance. Another example is where a camper pours water on a fire believing it to be extinguished,

leaves the campsite and there is a subsequent Forrest fire with no evidence of any direct disturbance.

True and correct copies of photographs demonstrating how the shaker bar can contact the metal clips

when one is depressing the shaker pedal are attached as Exhibit T.

22. As conceded by Donaldson (where it confirmed that bringing in an ignition source in the

form of a spark or burning material to a collection of dust in the Dust Collector could propagate a

fire) and shown by our testing, the ignition source is ultimately irrelevant when evaluating the

excessively dangerous design of the subject Dust Collector when used with combustible dust. The

design of the subject Dust Collector unnecessarily vents the fire and forces directly out the front open

panel and towards the user during the cleaning process. Any ignition source within the subject Dust

Collector is extremely dangerous given the way it is designed as it has a load of fuel (combustible

dust) in the tray, which when ignited can ignite any suspended dust present (as a result of normal

cleaning operations) and/or can produce and ignite suspended dust in either case resulting in flame

and forces that would come out at the user; this is what the evidence and testing indicate occurred in

the subject event.

I declare under penalty of perjury under the laws of the United States of America and the State

of California that the foregoing is true and correct. Executed on April 11, 2008 at Lafayette,

Colorado.

__________________________________Joseph Romig, Ph.D.

isela.moreno

Rectangle


SUMMARY JUDGMENTIN DANGEROUSCONDITION OF

PUBLIC PROPERTYCASE

THE HOMAMPOUR LAW FIRM, a PLC ARASH HOMAMPOUR (State Bar No. 165407) 8383 Wilshire Boulevard, suite 830 Beverly Hills, California 902 1 1-2407 Phone: (323) 658-8077 1 Fax: (323) 658-8477

VENTURA SUPERIOR COURT

F ILED

NIKJHAEL D. PLANET Executive Ofllcer and Clerk

THE HALPERN LAW FIRM DERRYL S. HALPERN, ESQ. (State Bar No. 1 87973) BY: 1875 Burbank Blvd.. Suite 71 1 Tarzana, California 9 13 56 Phone: (8 18) 785-5999 1 Fax: (8 18) 609- 1342

Attorneys for Plaintiff ANDRES CASTRO


FOR THE COUNTY OF VENTURA

ANDRES CASTRO, ) CASE NO: CIV 235163

Plaintiff, ) ) PLAINTIFF'S OPPOSITION T O ) DEFENDANT STATE OF CALIFORNIA'S

VS. ) MOTION FOR SUMMARY JUDGMENT; ) POINTS AND AUTHORITIES IN SUPPORT ) THEREOF

STATE OF CALIFORNIA; CALIFORNIA ) DEPARTMENT OF TRANSPORTATION ) [Filed Concurrently with Plaintiffs Opposing and DOES 1 to 100, ) Statement re Material Facts, Declarations of

) Thomas Schultz, P.E. and Arash Homarnpour Defendants. ) and Index of Exhibits]

) ) Hearing Date: September 1 1,2006

Hearing Time: 8:30 a.m. Hearing Dept.: 4 1

Trial Date: November 20,2006

Complaint Filed on July 25, 2005 Case Assigned to Judge Bysshe, Dept. 41

TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Pursuant to Code of Civil Procedure Section 437c(b), Pursuant to Code of Civil Procedure

Section 437c(b), Plaintiff hereby submits his Opposition to Defendant State of California's motion

for summary judgment. Defendant's motion should be denied for the following four independent

reasons:

(I) it has not met its burden in bringing the motion to show that the undisputed

FILE COPY Plaintfls Opposition to Defendant State of California S Motion for Summary Judgement- Page i

facts support each element of its affirmative defense of design immunity under Gov. Code 5 830.6);

(ii) there are triable issues of fact as to Defendant's loss of the design immunity

defense;

(iii) it has not met its burden in bringing the motion to show the absence of triable

issues of fact as to the existence of a dangerous condition of public property; and

(iv) there are triable issues of fact regarding the existence of a dangerous condition

of public property.

Plaintiffs opposition shall be based on the attached memorandum of points and authorities,

the attached declarations of Thomas G. Schultz, P.E. and Arash Homarnpour, the evidence and case

law, the pleadings, documents, records, and files in this action, and such oral and documentary

evidence and argument which may be presented at the hearing on this motion.

DATED: August 14,2006 THE L A w u w , A Pro ssional Law Corporation

By: w Arash Homarnpour, Attorneys for Plaintiff ANDRES CASTRO

Plaintrff's Opposition to Defendant State of California S Motion for Summary Judgement- Page ii

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

I I. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I 11. FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Median Barriers Could Have and Should Have Been Installed by Cal-Trans on the Subject Roadway . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I B. The StateICal-Trans Had the Power, Resources and Opportunity to Install Median Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

C. Lon Before the Subject Incident, the StateICal-Trans Knew (1) #hey Should Have Installed a Median Barrier on the Subject Roadway (2) the Absence of One Was a Dangerous Condition and (3) They Lost Any Claimed Desi ned Immunity Based on Overwhelming Dangerous Changed 8 ircumstances . . . . . . . . . . . . 3

1 1. The Volume Width Warrant Was Met in 1993 . . . . . . . . . . . . . . 4

2. The Accident Rate Warrant Was Met in 1998 and was a Statistical Aberrant 250% Greater than the State's .5 Threshold asofOctober 18,2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. The Death Rate Warrant Was Met on December 24,2000 and was a Statistically Aberrant 250% Greater than the State's .I20 Threshold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4. All Other Factors Mandating the Installation of Median Barriers Were Met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

5 . The StateICal-Trans' Inexcusable Errors Lead to Preventable Deaths, InjuriesandtheIncident . . . . . . . . . . . . . . . . . . . . . . . . 7

6. A Dangerous Condition of Public Property Existed on Route 126 at the Time of and Caused the Incident . . . . . . . . . . . 9

7. Factually, the State Cannot Establish Design Immunity or Deny that it Has Been Lost . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

111. SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

IV. DANGEROUS CONDITION OF PUBLIC PROPERTY AND DESIGN I IMMUNITYLAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I A. Lack of Median Barriers Can Constitute a Dangerous Condition . . . . . . 14

~ B. Design Immunity Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

C. Loss of Design Immunity Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Plaintfls Opposition to Defendant State of California S Molion for Summary Judgement- Page iii

TABLE OF CONTENTS (cont.) Page

V. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Defendant Has Not Met its Burden in Bringing the Motion to Show That the Undisputed Facts Support Each Element of its Affirmative Defense of Design Immunity under Gov. Code 5 830.6 . . . . . . . . . . . . 18

B. There Are Triable Issues of Fact as to Defendant's Loss of the Design Immunity Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Defendant Has Not Met its Burden in Bringing the Motion to Show the Absence of Triable Issues of Fact as to the Existence of a Dangerous Condition of Public Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

D. There Are Triable Issues of Fact Regarding the Existence of a Dangerous Condition of Public Property . . . . . . . . . . . . . . . . . . . . . . .20

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Plaintlfs Opposition to Defendant State of California's Motion for Summary Judgement- Page iv

TABLE OF AUTHORITIES

CASE LAW

Aguilar v. Atlantic RichJield Co. (2001)25Cal.4th826 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14

Anderson v. Metalclad Insulation Corp. (1 999) 72 Cal.App.4th 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Baldwin v. State of California (1972)6Cal.3d424,431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 18

Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cameron v. State of California (1972)7Cal.3d318, 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19

Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th454 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Compton v. City of Santee (1993) 12 Cal.App.4th 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cornette v. Department of Transportation (2001)26Cal.4th63,66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17, 18, 19

Crouse v. Brobeck, Phleger & Harrison (1 998) 67 Cal.App. 4th 1509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ducey v. Argo Sales Company (1979)25Cal.3d707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15

Grenier v. City of Irwindale (1997)57Cal.App.4th9317940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,19

Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th825 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Katz v. Chevron Corp. (1994) 22 Cal.App.4th1352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lopez v. Sup. Ct. (Friedman Bros. Inv. Co.) (1 996) 45 Cal.App.4th 705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Saelzler v. Advanced Group 400 (2001)25Cal.4th763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Twain Harte Associates, Ltd. v. County of Tuolumne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (1990) 217 Cal. App. 3d 71 12

Plaintz#'s Opposition to Defendant State of California's Motion for Summary Judgement- Page v

. . ~~

TABLE OF AUTHORITIES (cont.)

STATTJTES

Page

Code of Civil Procedure 437c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gov.Code§830.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,10,16, 17

Gov. Code €j 830(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gov.Code8835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gov. Code 83 5(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5, 1 7

Gov.Codeg835.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

--

Plaintzff's Opposition to Defendant State of Califarnia 's Motion for Summary Judgement- Page vi

MEMORANDUM OF POINTS AND AUTHORITIES

I. SUMMARY OF ARGUMENT

This case sadly illustrates what happens when a public entity fails to do its job to protect the

motoring public fiom a known dangerous condition of its property. Back in 1995 and at the urging

of the public and officials, Defendant State of California evaluated the subject roadway, Route 126

between the towns of Fillmore and Santa Paula, for the installation of median barriers because of

cross-over accidents. [Fact No. 231 As an interim mitigation measure, the State installed rumble strips

with the "Long Term Solution" to "[mlonitor the crossover accidents after the installation of the

'rumble strips' ...[ and] [i]f the rumble strips do not achieve the purpose, and conditions warrant,

Caltrans will proceed with the installation of median barriers." [Fact Nos. 43 - 481 Despite the internal

mandate to "monitor" the subject roadway for cross-over accidents, the subject roadway was not

monitored. [Fact Nos. 40,49, 52, 86 and 871

What happens next are the worst kind of tragedies - preventable ones. A three mile stretch of

Route 126 (between Mile Markers 13.45 and 16.32) becomes a Highway of death and destruction

with a statistically aberrant number of cross-over incidents (250% greater than the State's own

warrant thresholds.) Injury after preventable injury, death after preventable death - all under the

State's watch and all fiom cross-over accidents that could have been prevented if the State had paid

attention, complied with its own mandate, and installed median barriers. [Fact Nos. 29 - 32,57 - 65,

75,96,106,108 - 109,111,114 - 127,129,138 - 144,147 - 148,151 - 152,154, and 1571

Defendant State of California's bad faithlmotion for summary judgment should be denied for

the following four independent reasons (i) it has not met its burden in bringing the motion to show

that the undisputed facts support each element of its affirmative defense of design immunity under

Gov. Code 5 830.6; (ii) there are triable issues of fact as to Defendant's loss of the design immunity

defense; (iii) Defendant has not met its burden in bringing the motion to show the absence of triable

issues of fact as to the existence of a dangerous condition of public property; and (iv) there are triable

issues of fact regarding the existence of a dangerous condition of public property

This entire motion is based essentially on Defendant State's own evidence and testimony. Had it been honest in its disclosure a d analysis of the state of the evidence to this Court, it would not have filed this motion.

PlaintrfJ's Opposition to Defendant State of Calgornia 's Motion for Summary Judgement- Page I

1 11. FACTS

A. Median Barriers Could Have and Should Have Been Installed bv Cal-Trans on

the Subject Roadway

Per the StateICal-Trans' 1996 Traffic Manual, "Median bamers can be an appropriate solution

to cross-median accidents on multi-lane (two or more lanes in each direction) expressways and

multi-lane conventional highways. The volumelmedian width and accident study warrants apply to

freeways only, but they may be used as a guide for non-freeways."[Fact No. 24, "Fact No." refers to

I Plaintiffs Responsive Statement of Facts and the evidence cited therein] The StateICal-Trans installs

median barriers to prevent cross median accidents, with the first installed almost 60 years ago in

1947. [Fact Nos. 35 and 701 In fact, in 1995, the StatelCal-Trans determined that the installation of

median barriers would eliminate cross over accidents. [Fact No. 961

The StateICal-Trans developed two types of warrants for the justification of the installation

of median barriers. Volume Width warrants are based on the logic that most vehicles can recover

within a wide median and that for low volumes, the chances are good that if they do cross into the

opposing lanes, they will not hit another vehicle. This warrant can be used as a guide for

non-freeways. Engineers prefer the use of this warrant as they do not have to wait for people to be

injured or killed before recommending a barrier. Accident warrants justify bamers if within a 5-year

period there are three or more cross median accidents for a calculated accident rate of 0.5 cross

median accidents per mile per year or 0.12 cross median fatal accidents per mile per year. [:Fact Nos.

36,37 and 1281 The StateICal-Trans also looks into (its 1997 Median Barrier Study Warrant Review

includes) the number of single vehicle crossover accidents where a vehicle will cross over the median

but doesn't strike another vehicle because they are another factor justifying the installation of median

barriers. [Fact Nos. 5 1, 54 and 551

Median barriers are installed on highways, like Route 126, which between Santa Paula and

Filmore is a conventional highway [Fact Nos. 26 and 271 The lower the width of the median, the more

likely a vehicle will get into the opposing lanes and the higher the traffic volume the more likely that

a head on collision will occur. [Fact No. 741

Statistically, the StateICal-Trans admitted that the severity of cross median accidents is

Plaintzrs Opposition to Defendant State of California S Motion for Summary Judgement- Page 2

reduced by the installation of median barriers and that is why StateICal-Trans continues to install

median barriers throughout the State of California. [Fact No. 531 In fact, the 1997 Median Barrier

Study Warrant Review showed that the installation of median barriers would decrease fatal accident

rates by 42 percent. [Fact No. 561 The severity of injury or death is greater when there's no median

barrier than if there is one present. [Fact No. 761

The StateICal-Trans admitted that there are engineering methods that could be implemented

when installing median barriers on highways to deal with intersections and driveways, like the use

of barrels or crash cushions for resulting gaps in the median barrier. [Fact Nos. 28,33,117, and 1 191

Also, StateICal-Trans had the ability to close a gap on the subject roadway created by an intersection

or driveway. [Fact Nos. 1 131

B. The StateICal-Trans Had the Power, Resources and Opportunitv to Install

Median Barriers

Unless there is an extraordinary situation, the StateICal-Trans admitted the minimum time to

construct median barriers of 4 miles on Route 126 would be 2 years. [Fact No. 751 But, as detailed

herein, it could have prevented this incident and a number of unnecessary deaths and injuries by

installing a median barrier on Route 126 between mile markers 15.36 to 16.32 (which includes the

subject incident location at mile marker 15.56) and they could have been installed on this 1 mile

portion of the roadway in less than 1 year, given the presence of an existing paved median. [Fact No.

1521 If the installation of median barriers is justified, then StateICal-Trans admitted it would have the

funding and the ability to install them. [Fact No. 291

C. Lonv Before the Subiect Incident, the StateICal-Trans Knew (1) Thev Should

Have Installed a Median Barrier on the Subiect Roadwav (2) the Absence of One

Was a Dan~erous Condition and (3) They Lost Anv Claimed Desipned Immunity

Based on overwhelm in^ Dangerous Chan~ed Circumstances

The subject roadway is defined as Route 126 between the towns of Fillmore and Santa Paula.

[Fact No. 941 The StateICal-Trans is informed every time a cross median accident on Route 126

occurs. [Fact No. 4 11 It admitted that if any concentrated section of Route 126 meets the warrant, that

would require the StateICal-Trans to undertake further study as to whether they should put median

PlaintlfS's Opposition to Defendant State of California's Motion for Summary Judgement- Page 3

barriers in that smaller segment. [Fact No. 341

Back in January 1993 and as detailed in its own 1995 memo2 (Exhibit D) and report, the

StateICal-Trans received a request fiom local elected officials and residents to install median barriers

on Route 126 between Santa Paula and Fillmore (or mile markers 13.43 - 20.119) because of

crossover accidents. This area included the area of the subject incident (or mile marker 15.56.) [Fact

No. 231 In the 1995 memo, it recommended an interim mitigation measure, not a permanent one, of

installing Botts dots to deal with the crossover accidents [Fact Nos. 43 -441 But, there are locations

where both engineering countermeasures (median barrier and rumble strips) are installed, just not on

the subject roadway. [Fact No. 461

In the 1995 memo, the StateICal-Trans directed itselfto "monitor the crossover accidents after

the installation of the rumble stripsUand if the rumble strips do not achieve the purpose and

conditions warrant then "Cal-Trans will proceed with the installation of median barriers" on the

subject Roadway. [Fact Nos. 47 and 481 After 1995 and based on the 1995 memo and report, it admits

it should have monitored the crossover accidents on Ro-ute 126 on a continuing basis and to see if the

warrants were met, but through error it did not. [Fact Nos. 40,49,52,86 and 871 In fact, it admitted

that if the rumble strips don't work and people are still crossing over and having crossover accidents,

then the rumble strips may not be working and the StateICal-Trans should proceed with the

installation of median barriers. [Fact No. 501

1. The Volume Width Warrant Was Met in 1993

Tragically, all warrants were met long before the subject incident. The Volume Width Warrant

was met a s early as 1993 because the subject median was 12 ft wide and as of that date the average

daily traffic for the subject roadway was 22,000 vehicles per day. [Fact No. 1291

2. The Accident Rate Warrant Was Met in 1998 and was a Statistical Aberrant

250% Greater than the State's .5 Threshold as of October 18,2001

A review of the police reports, TASAS report and S WITRS report produced by the StatelCal-

Trans during discovery and as detailed in the spreadsheet that summarizes these documents, confirms

2 This 1995 Cal-Trans memo flatly contradicts Defendant Cal-Trans' false claim in its Motion (at page 14) that "there is absolutely no evidence in the record that any report had been made to any public entity about an unusual frequency of accidents in this area of State Route 126."

Plaintgff's Opposition to Defendant State of California's Motion for Summary Judgement- Page 4

that between mile markers 13.24 and 1 8.23 :

from March 1994 until the day of the subject incident of October 1 1,2004,

there were 44 cross-median type incidents (single vehicle and multi vehicle), 17 true cross-median

incidents, 50 injured persons, and 9 deaths. [Fact No. 1 141; and

after the February 1995 memo (when the StateICal-Trans was not

monitoring the roadway statistics despite the memo's mandate) until the day of the subject incident

of October 1 1, 2004, there were 39 cross-median type incidents (single vehicle and multi vehicle),

17 true cross-median incidents, 36 injured persons, and 7 deaths. [Fact No. 1 151

Based on the true cross-median incidents that happened on (1) 07/03/97 at MM 15.36, (2)

09/02/98 at MM 15.69, (3) 01/10/01 at MM 15.93, (4) 1011 8/01 at MM 16.16, (5) 1211 9/00 at MM

16.14, and (6) 03/04/98 at MM 16.32 the accident warrant rate as of October 18,200 1 was 1 which

is higher than the StateICal-Trans's threshold rate of .50 [calculated as 6 accidents over a 5 year period

and over a .96 mile distance from MMs 15.36 - 16.32 or 6/(.96x5)] The actual accident rate was 250%

times greater than the 0.50 accidents per mile per year required for the warrant. The .50 warrant rate

was actually satisfied on March 4, 1998. [Fact No. 1 161

Per the StateICal-Trans' own 1995 memo, there are only 2 intersections within MMs 15.36

- 16.32 and any potential gaps in a median barrier for these intersections can easily be accommodated

with crash cushions or closure. [Fact No. 1 171

3. The Death Rate Warrant Was Met on December 24,2000 and was a Statisticallv

Aberrant 250% Greater than the State's .I20 Threshold

Based on the true cross-median incidents that happened (1) on 12/24/00 at MM 13.45, (2)

12/26/96 at MM 14.61, and (3) 07/03/97 at MM 15.36, the death warrant rate was met on December

24,2000 as the rate was .314 which is higher than the State's threshold rate of. 120 [calculated as 3

death accidents over a 5 year period and over a 1.91 mile distance from MM 15.36 - 13.45 or

3/(1.91x5)] The actual death rate was 260% times greater than the State's own .I20 rate. [Fact No.

1181.

Per the StateICal-Trans'own 1995 memo, there are only 3 intersections within MMs 13.45 - 15.36 and any potential gaps in a median barrier for these intersections can easily be accommodated

PlaintlfS's 0ppckition to Defendant State of California's Motion for Summary Judgement- Page 5

with crash cushions or closure. [Fact No. 1191

4. All Other Factors Mandatinp the Installation of Median Barriers Were Met

Other factors that can be considered in evaluating whether a median barrier should be installed

(or a change in circumstances making a design unreasonable) include (1) whether the projected

average daily traffic volume have been exceeded; (2) the more vehicles travel over the roadway, the

more potential there is for an accident.; (3) if the average daily traffic volume is higher than it was

anticipated when the last design and construction was performed on that particular roadway; (4) if

there is an increase in the average speed of drivers on the roadway since it was originally designed

and constructed; (5) if there is a larger volume of trucks or other large vehicles using that roadway

since it was last designed and constructed; (6) the lower the width of the median, the more likely a

vehicle will get into the opposing lanes and the higher the traffic volume the more likely that a head

on collision will occur; (7) a change in speed and vehicle type; and (8) the number of accidents

(including cross-median incidents involving single vehicles, multiple vehicles, injuries or deaths) on

the roadway. [Fact Nos. 58 - 62, 106, 108,109,1541 As detailed herein, all of these factors were met

and mandated that a median barrier be installed.

Per the StateICal-Trans 1983 Negative Declaration for the road widening project, the average

daily traffic volumes for Route 126 varied from 12,000 - 14,000 and it projected an increase by

approximately 5,000 vehicles with or without the project over the next 20 years. [Fact Nos. 63 and

641 As of 1993, the average daily traffic for the subject roadway on Route 126 between Santa Paula

and Fillmore was 22,000 vehicles per day and 10.7 percent of traffic involved trucks.[Fact Nos. 30,

31 and 321 The StateICaltrans admits that the ultimate average daily traffic was higher than was

predicted in writing in the Negative Declaration. [Fact No. 651 The annual daily traffic volume for

2002 was 32,000 - 33,000. [Fact No. 1 1 1] In other words, the State's projection was far exceeded by

1993 and then by 2002 it was 170% greater than expected. [Fact Nos. 30-32, 63 - 65, and 1 1 11

Therefore, it became twice as more likely that a crossing vehicle would hit an opposing vehicle. [:Fact

No. 14.71 The 1983 widening project, within a reasonable degree of engineering certainty, increased

speed significantly. [Fact No. 1481

All the operational features of a freeway are present except that of complete access control

PlainttfS's Opposition to Defendant State of Calvornia 's Motion for Summary Judgement- Page 6

(i.e. fenced and access at grade-separated interchanges only) and the absence of complete access

control increases the probability of cross median accidents because vehicles turning onto or off of the

highway at driveways and intersections will induce the crossover accident. [Fact Nos. 138 - 1391

A continuous left turn striping or rumble strips are patently inadequate as they do not prevent

vehicles from crossing a twelve-foot median. Paint striping or paint symbols do not slow or prevent

a vehicle from crossing it. At an angle of 25 degrees, a vehicle will cross this median in 0.70 seconds.

This is the angle used for testing the effectiveness of median barriers. At angle of 5 degrees this

increases to 3.4 seconds. the perceived (untested) average perceptiodreaction time is 1.5 seconds.

Highway and Traffic engineers do not use that number as we would be placing half the population

at risk of injury or death. Engineers generally use 2.5 seconds. Inattentive or sleepy drivers obviously

have an extended perceptiodreaction time much greater than 5 seconds even when warned by a

rumble. In other words, rumble strips are totally inadequate to prevent cross-median incidents given

the history of this roadway. [Fact Nos. 140 -1431

Any claim by the StateICal-Trans that amedian barrier would increase the number of incidents

in a significant way to affect the decision to install a median barrier is without merit in that there are

no studies produced by Cal-Trans where it has been proven for the safety-shape concrete barrier.

Researchers can only rely on "reported" accidents for analysis. Many impacts with the concrete barrier

are unreported as they frequently result in little or no damage or injury. [Fact No. 1441 Although the

installation of median barriers may result in more accidents, Cal-Trans admitted that the severity of

the accidents are reduced and this is one of the reasons why it continues to install median barriers.

[Fact No. 571

5. The StateICal-Trans' Inexcusable Errors Lead to Preventable Deaths, Injuries

and the Incident

Garabed Kevorkian is the StateICaltran's Senior Transportation Engineer in Ventura County

(having been in charge of the subject District 7 fiom 1997 to the present) and was designated by

Defendant as the Person Most Knowledgeable as to Category Nos. 5,6,21,23,27,28,30,37,50 and

58 in Plaintiffs Deposition Notice. [Fact Nos. 79 and 851 Mr. Kevorkian was responsible for all the

conventional highways and freeways in Ventura County. [Fact No. 901 Defendant relies on his

Plaintif's Opposition to Defendant State of California's Motion for Summary Judgement- Page 7

declaration in support of its motion.

The Median Barrier Monitoring Program did not include data for Route 126 because it did not

include highways with continuous two-way left turn lanes. [Fact No. 221 In other words, the Median

Barrier Monitoring Program does not address the number of cross over accidents for Route 126

because it's not part of the reporting system [:Fact No. 881 Unbelievably, Mr. Kevorkian , the State's

Senior Transportation Engineer since 1997, did not know this. [Fact No. 80 and 891 To make matters

worse, he does not remember specifically asking to see all reports and memos relating to the

1 geographic area he became responsible for in 1997 when he took over District 7. [Fact No. 911 The

1995 memo should have still been in District 7 when Mr. Kevorkian took over in 1997. [Fact No. 991

But, he claims somehow he did not get the memo and thus, the long term solutions required under

the StateICal-Trans 1995 memo were not done from 1997 to the day of the accident. [Fact No. 921

As a result of these series of errors, an evaluation as to whether the conditions warranted the

installation of median barriers on the subject roadway was not done at any time between 1997 to

2004. [Fact No. 931 The StateICal-Trans' errors proved deadly. Had they performed the analysis they

themselves mandated, they would have discovered that all applicable warrants and guidelines were

satisfied well before the October 1 1,2004 accident (the death warrant in December 24,2000 and the

accident rate warrant in March 4, 1998) and that there was a statistical aberrance with the number of

cross-over incidents and resulting injuries and deaths. [:Fact Nos. 30- 32,36 -37,5 1,54 - 65, 74, 76,

94,96, 106, 108, 109, 11 1, 114-1 19, 128-129, 138-144, 147 - 148 and 153, 1561

Although the StateICal-Trans uses (and he knew they use) the accident rate warrant (.5 for

accident rates and .12 for death rates) andlor volume width warrant to evaluate the need to put in a

median barrier [Fact Nos. 77 and 1011, Mr. Kevorkian did not do any specific rate calculation or

analysis to determine the accident rate warrant andlor the volume width warrant for the subject

roadway for this case. [:Fact No. 811 In fact, allegedly no one at the StateICal-Trans has done an

accident rate warrant and/or a volume width warrant analysis or looked to see if they had been met

for this case. [Fact Nos. 82 and 841 He claims he did not instruct his staff to independently verify that

the accident rate or volume width warrant had been met at any time for the subject roadway. [Fact

No. 831

Plaintzrs Opposition to Defendant State of California's Motion for Summary Judgement- Page 8

As to Mr. Kevorkian's arbitrary (and illogical) analysis of the quarter mile before and after

the incident location, he could not explain why he did this. [Fact No. 1011 He admitted that looking

at data for the 2 miles before and after the location of the accident could produce a totally different

accident history. [:Fact No. 1041 From an engineering standpoint and given the fact that all warrants

were met, his analysis is suspect3 [:Fact No. 1341.

6 . A Dan~erous Condition of Public Propertv Existed on Route 126 at the Time of

and Caused the Incident

As detailed and supported by specific evidentiary and supporting references in his attached

comprehensive declaration and based on his experience, education, training, background, review of

the materials and the evidence above, it is the expert opinion of Civil, Safety and Traffic engineering

expert, Thomas G. Schultz, Ph.D.4, that the lack of a concrete median barrier on State Route 126

between mile markers 13.24 and 18.23 (1) was an improper, unsafe and a dangerous condition of

3 Thus, it can be implied that Defendant is either engaging in a coverup (by failing to disclose to the court all of the bad evidence and the fact that all warrants and conditions for the installation of median barriers were met) or it has deliberately tried to distort the record by selecting a portion of the roadway that hides the truth. Given the unnecessary injuries and deaths that have occurred, the StateICal-Trans must be held accountable and, at a minimum, punished for this bad faith filing.

4 As detailed in his declaration, Dr. Schultz is a Civil, Safety and Traffic Engineer registered in the State of California. He is also a Registered Civil Engineer in the State of Hawaii (#I305 1) and a Registered Engineer in the State of Colorado (#383 17). He has been practicing in the civil engineering field, with emphasis on highway construction and traffic engineering, since 1957. He has worked for both public and private agencies, including the federal government, the State of California and numerous governmental entities within the state. This work has involved roadway design, roadway operational practices, redesign, safety evaluation, and traffic engineering. He received Bachelor of Science, Master of Science, Doctorate degrees all majoring in civil engineering and dealing with highway design, highway planning, traffic operations, hghway maintenance, construction, traffic safety, environmental impact reports and mitigation measures for roadway safety. He has taught and retired from the State of California, San Jose State University as a Professor Emeritus of Civil Engineering for over a period of 36 years, consisting of various courses in civil engineering, including highway design, construction practices, traffic engineering, highway planning, drainage and construction safety. He has been engaged in consulting work in the field of civil engineering, construction practices, traffic engineering, highway design and safety evaluation, and pedestrian safety evaluation studies for the last 44 years. As such, he has become familiar with design and construction policies of the various public agencies, including the State of California, the U.S. government, cities and counties in California, Arizona, Nevada, Oregon, Alaska, Hawaii, Colorado, Washington, Illinois Nebraska and Montana, and is familiar with the accepted practices utilized by engineers in designing, constructing, modifying, upgrading and maintaining most types of public facilities. In addition, he is familiar with the accepted manuals, texts and other published literature that are utilized by practicing engineers in the design and safety operational aspects of highways.

PlaintgfS's Opposition to Defendant State of California's Motion for Summary Judgement- Page 9

I

public property, (2) created a substantial risk of injury when the property is used with due care in a

reasonably foreseeable manner, (3) was the proximate cause of Plaintiffs injuries, (4) created a

reasonably foreseeable risk of the type of injury Plaintiff sustained and the State of California had

actual and constructive notice of the dangerous condition and sufficient time prior to the injury to

have taken measures to protect against the dangerous condition. [:Fact Nos. 120 - 124, and 1541 In

other words, had there been a median barrier, within a reasonable degree of engineering certainty, the

impact between the vehicles driven by Jose Luis Sanchez Rizo and Cynthia Lee Bailey would not

have occurred which resulted in 2 deaths and 2 serious injuries (including Plaintiff). [Fact No. 1571

A portion of Route 126 between mile markers 15.36 to 16.32 (which includes the subject

incident location at mile marker 15.56) was a dangerous condition as early as March 4, 1998 when

the accident rate warrant was met. As admitted by Cal-Trans, if any concentrated section of Route 126

meets the warrant, then Cal-Trans has to consider median barriers in that smaller segment. [Fact No.

1251 A portion of Route 126 between mile markers 15.36 to 16.32 (which includes the subject

incident location at mile marker 1 5.56) remained a dangerous condition as of October 1 8,2001 when

the accident rate was 250% greater than the 0.50 accidents per mile per year required for the warrant.

[:Fact No. 1261

The State of California had the ability to remedy the dangerous condition on State Route 126

prior to the Incident and that had there been a concrete median barrier along the subject area of State

Route 126 it is more likely than not that the numerous previous incidents and the incident relating to

this matter would not have happened. [Fact No. 1271

7. Factuallv, the State Cannot Establish Des i~n Immunitv or Deny that it Has Been

Lost

The installation of median barriers is not part of the highway design manual; it's actually a

traffic manual function. [Fact No. 661 Government Code Section 830.6 clearly refers to "Design" and

does not contain the word "Operation," Highway engineering involves five distinct and separate

functions as follows: Planning - the collection and analysis of data that would evaluate the need for

an benefits to be derived from a new facility. Alternate routes are evaluated, environmental concerns

as well as funding alternatives addressed. Design - the preparation of plans and specifications from

Plaintzrs Opposition to Defendant State of California's Motion for Summary Judgement- Page 10

which the facility' can be constructed. Construction - the assembly of manpower, equipment and

material and the actual building of the facility according to the plans and specifications. Maintenance

- the process of preserving the integrity of the facility so that it continues to function in accordance

with the goals of the design. Operation - the imposition on the facility of those features which give

direction to the motorists so that the facility may be traversed with an acceptable level of safety and

a minimal amount of delay. This involves the professional practice of Traffic Engineering. Below is

a simplified flow chart: Planning --> Design --> Construction --> Maintenance --> Operation. It

should be noted that the warrants for median barrier installations are identified in the Cal-Trans

"Traffic" Manual and not the "Design" Manual. While the width of a median may be fixed, the traffic

volume changes (usually increasing) annually. Therefore, the installation of a median barrier is quite

property an "Operational function" and not one of original "Design." While the "Traffic" Manual has

been substantially replaced by the national "Manual on Uniform Traffic Control Devices" with a

I California Supplement (May 20, 2004), Chapter 7 (Traffic Safety Systems) of the former manual,

remains as standard policy. [.Fact Nos. 149- 1 501

There is no evidence of (or at a minimum there is an issue of fact as to whether Cal-Trans can

establish) (1) a causal relationship between its 1983 plan and the accident and (2) discretionary

approval of the plan or design prior to construction. Mr. Kevorkian admitted that he cannot rule out

that someone recommended the installation of median barriers in the design plan and it just wasn't

done. [Fact Nos. 103 and 1501

Assuming for sake of argument that Cal-Trans had design immunity, Traffic Expert Schultz

opines that they have lost it because, and as detailed herein, (1) the plan or design has become

dangerous because of a change in physical conditions; (2) Cal-Trans had actual and constructive

notice of the dangerous condition created; and (3) Cal-Trans had a reasonable time to obtain the funds

and carry out the necessary remedial work to bring the property back into conformity with a

reasonable design or plan. Cal-Trans admitted it had the funding and ability to install median barriers

and 4 miles of barriers could have been constructed in 2 years. [Fact Nos. 29,75, and 15 1] However,

as stated earlier and at a minimum, that portion of Route 126 between mile markers 15.36 to 16.32

(which includes the subject incident location at mile marker 15.56) was a dangerous condition as early

PlaintiffS Opposition to Defendant State of California's Motion for Summary Judgement- Page 11

as March 4, 1998. Median barriers could have been installed on this 1 mile portion of the roadway

in less than 1 year. [Fact No. 1521

As to the issue of whether there has been a change in circumstances of the subject roadway

from the time of the original design, Mr. Kevorkian admitted that a detailed analysis is needed to do

a complete evaluation. He also admits neither he nor his lead engineer did one. [Fact No. 1 121. Then

how can the State file a declaration from him stating there was no change in circumstances? (See,

Kevorkian Supplemental Declaration, page 2 ,7 4) Especially, when the overwhelming evidence is

that there were deadly changed circumstances.

111. SUMMARY JUDGMENT STANDARD

Under C.C.P. 5 437c(a), "any party may move for summary judgment in any action or

proceeding if it is contended that the action has no merit or that there is no defense to the action or

proceeding." "A cause of action has no merit if either of the following exists: [PI (1) One or more of

the elements of the cause of action cannot be separately established, even if that element is separately

pleaded. (2) A defendant establishes an affirmative defense to that cause of action." (C.C.P. $5

43 7c(n)( 11,

As the party moving for summary judgment, defendant has the burden to show it is entitled

to judgment with respect to all theories of liability asserted by plaintiff. (Lopez v. Sup. Ct. (Friedman

Bros. Inv. Co.) (1996) 45 Cal.App.4th 705, 717.) Defendant's burden of proof on its motion for

summary judgment is substantial and it must submit evidence that "either disprove[s] at least one

essential element of every cause of action of the plaintiffs complaint or prove[s] an affirmative

defense that would bar every cause of action of the complaint. . .[Ifl defendant's proof leaves at least

one plausible theory or basis of recovery unchallenged, the burden is not met and plaintiffs failure

to oppose the motion is immaterial. (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 2 17

Cal. App. 3d 71, 79-80.)

This Court "must view the evidence in a light favorable to plaintiff. . ., liberally construing

[his] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any

evidentiary doubts or ambiguities in plaintiffs favor." (Saelzler v. Advanced Group 400 (2001) 25

Cal.4th 763,768.) In considering Defendant's motion, the Court cannot weigh evidence or inferences.

PlaintifJ's Opposition to Defendant State of California's Motion for Summary Judgement- Page 12

Therefore, if an inference is controverted by other evidence, or even by other reasonable inferences,

there is a "triable issue" of fact, and the motion must be denied. (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 856.) "Only when the inferences are indisputable may the court decide the

issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.

'Any doubts about the propriety of summary judgment ... are generally resolved against granting the

motion, because that allows the future development of the case and avoids errors.' [Citation.]"

(Binder v. Aetna Life Ins. Co. (1 999) 75 Cal.App.4th 832,839; see also Katz v. Chevron Corp. (1 994)

22 Cal.App.4th1352, 1365 ("doubts as to the propriety of granting the motion should be resolved in

favor of the opposing party"))

When a defendant moves for summary judgment based upon an affirmative defense, the

defendant has "'the initial burden to show that the undisputed facts support each element of the

affirmative defense."' (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 467-468,

quoting Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 280-290.) Further,

Plaintiffs/opposing parties, do not have to establish anything unless and until Defendantlmoving party

"has by affidavit stated " 'facts establishing every element [of the affirmative defense] necessary to

sustain a judgment in his favor. . . .' " ' . . . [PI What this means . . . is that if an fiirmative defense

has four elements, it does not suffice even if the defendant produces overwhelming evidence as to

three of those elements. If the defendant fails to address the fourth element at all or to produce

substantial evidence supporting that element, the trial court cannot properly grant summaryjudgment.

Moreover, a summary judgment granted in those circumstances would have to be reversed, even if

the plaintiff failed to introduce a scintilla of evidence challenging that element."' (Consumer Cause,

Inc., supra, 91 Cal.App.4th at 468 quoting Huynh v. Ingersoll-Rand (1993) 16 Cal. App. 4th 825,

830-83 1 .)

To meet its burden to show the absence of triable issue of fact regarding a dangerous

condition, Defendant is required to produce evidence and cannot simply rest its motion on argument.

"Summary judgment law in this state . . . continues to require a defendant moving for summary

judgment to present evidence, and not simply point out through argument, that the plaintiff does not

possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges

03-0786.01 Plaint~fs Opposition to Defendant State of California S Motion for Summary Judgement- Page 13

from federal law." (Aguilar, supra, 25 Cal.4th at 845-855.) Defendant cannot shift the burden to

Plaintiff "simply by suggesting the possibility that the plaintiff cannot prove its case." or by "simply

'pointing out to the ... court' that 'there is an absence of evidence"' (Hagen v. Hickenbottom (1995)

41 Cal.App.4th 168,186.) In fact, if "the showing by the defendant does not support judgment in [its]

favor, the burden does not shift to the plaintiff and the motion must be denied without regard to the

plaintiffs showing. " (Crouse v. Brobeck, Phleger & Harrison (1 998) 67 Cal.App. 4th 1509,1534.)

IV. DANGEROUS CONDITION OF PUBLIC PROPERTY AND DESIGN IMMUNITY

LAW

A. Lack of Median Barriers Can Constitute a Dangerous Condition

Failing to disclose Supreme Court decisions that have rejected its argument previously,

Defendant State wrongly suggests that Plaintiff cannot establish a dangerous condition of public

property if any person involved did not exercise due care. Because the great majority of accidents

occur due to some lapse by someone, the State has crafted an exception that swallows the rule. Our

Supreme Court has repeatedly rejected any such myopic interpretation of the statutory scheme.

Indeed, it is striking that although the State cites a variety of inapt appellate decisions, it avoids

mentioning the Supreme Court 1979 decision in Ducey v. Argo Sales Company ("Ducey") (1 979) 25

Cal.3d 707 against the State which rejected the same argument it disingenuously continues to assert

almost 30 years later.

Ducey involved a freeway accident in which a speeding Maverick automobile ["'coming up

quite fast"'] went into a skid and "shot across the median "'just like a blue blur."' (25 Cal.3d at 7 12.)

It crashed head-on into an automobile driving in the opposite direction on the other side of the

freeway. The victims in the other automobile sued both the estate of the Maverick's driver and also

the state, the latter on the theory that the absence of a median barrier on the freeway contributed to

plaintiffs' harm. (Ibid.)

Appealing from an adverse jury verdict, the state contended it owed no "'legal duty"' to

plaintiffs to protect them from dangers that allegedly were not of the "state's own making." (25 Cal.3d

at 71 5.) Because the accident at issue was caused by the conduct of one of the drivers, rather than any

defect in the roadway, the state maintained that it was entitled to a directed verdict.

Plaintgff's Opposition to Defendant State of California's Motion for Summary Judgement- Page 14

The Supreme Court firmly repudiated that limited view of the circumstances under which a

public entity can be held liable for accidents on public roadways. It noted that the state's argument

was directly refuted by the explicit language of the controlling statutes (such as Government Code

sections 835 and 835.2) and by the holdings of numerous prior decisions of the Supreme Court and

appellate courts. (Id. at 715.)

The Court noted that section 835 provides that a public entity with actual or constructive

notice of a dangerous condition may be held liable for failure to take protective measures to safeguard

the public from dangers not of the entity's own creation. (Id. at 71 6.) It stated that this reading of

section 835 is confirmed by the language of section 830, subd.(b) which specifically defines "protect

against" as including "providing safeguards against adangerous condition." (Id. at 71 6-71 7, emphasis

added.)

The State's argument in Ducey is similar to the one it constructs here - that the jury should

not have been allowed to find that the absence of a median created a dangerous condition "because

cross-median freeway accidents usually result from the negligence of either the victim or a third party,

and therefore that the jury could not properly conclude that the absence of a median barrier created

a substantial risk of injury when the freeway was used with due care." (Id. at 719, footnote omitted)

It noted that:

The Supreme Court rejected this claim, noting that even if "many, perhaps most, cross-median

accidents result from the negligence of one or more drivers," there was still sufficient evidence in the

case to allow the jury to have inferred that the lack of a median barrier "created a substantial risk of

injury even in the absence of negligent conduct." (Ibid., emphasis added.) )

"A public entity is liable for injury proximately caused by a dangerous condition of its

property if the dangerous condition created a reasonably foreseeable risk of the kind of injury

sustained, and the public entity had actual or constructive notice of the condition a sufficient time

before the injury to have taken preventive measures." (Cornette v. Department of Transportation

(2001) 26 Cal.4th 63,66 (Cornette), citing Gov. Code, § 835, subd. (b).)

B. Desim Immunity Defense

"However, apublic entity may avoid such liability by raising the affirmative defense of design

Plaintifs Opposition to Defendant State of California S Motion for Summary Judgement- Page 15

immunity. ( 5 830.6.) A public entity claiming design immunity must establish three elements: (1)

a causal relationship between the plan or design and the accident; (2) discretionary approval of the

plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the

plan or design. [Citations.]" Cornette, supra, 26 Cal.4th at p. 66.

Design immunity is intended to immunize only those design choices which have been made.

(Cameron v. State of California (1972) 7 Cal. 3d 3 18, 326.) In Cameron, Plaintiffs lost control of

their car as a result of superelevation around a curve which was a dangerous condition. The State

plans covered many aspects of the roadway, but there was no evidence "the superelevation which was

actually constructed on the curve . . . was the result of or conformed to a design,approved by the

public entity vested with discretionary authority." ( Id. at p. 326.) The state thus failed to prove the

causation element--that a discretionary decision was actually made regarding the dangerous condition

which caused plaintiffs' accident. (Ibid.) Stated another way, "[dlesign immunity does not immunize

decisions which were not made." (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)

Therefore, the "injury-producing feature" must have been part of the plan or considered by the public

entity in developing andlor approving the plan. (Id. at p. 94 1 .) In other words, the public entity must

prove that a discretionary decision was actually made regarding the dangerous condition that

proximately caused the injury. (Ibid.) This issue is sometimes addressed in relation to the element of

causation, and sometimes in relation to the element of discretionary approval. ( Id. at p. 941, fn. 7.)

"The distinction is academic" however. (Ibid.) If questions of fact exist on the issue, they are to be

determined by a jury. (See, Cornette, supra, 26 Cal.4th at pp. 74-76.)

C. Loss of Design Immunity Defense

In 1972, the Supreme Court addressed a circumstance not specifically covered by section

830.6: whether design immunity, once acquired, could be subsequently lost, or, alternatively, whether

the Legislature "intended that it could also endow immunity with perpetual life." (Baldwin v. State

of California (1972) 6 Cal.3d 424, 431, 99 Cal. Rptr. 145 (Baldwin).) Overruling its two prior

decisions holding that design immunity could not be lost, the court held that "design immunity

persists only so long as conditions have not changed. Having approved the plan or design, the

governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual

Plaintifs Opposition to Defendant State of California's Motion for Summary Judgement- Page 16

operation of the plan. Once the entity has notice that the plan or design, under changed physical

conditions, has produced a dangerous condition of public property, it must act reasonably to correct

or alleviate the hazard. " (Id. at p. 434, fn. omitted.) The court explained that the entity's notice of the

changed conditions "may be actual or constructive and must be a sufficient time prior to the injury

to have permitted the public entity to take measures to protect against the danger." (Id. at p. 434, fn.

8, citing § 835, subd. (b).)

In 1979, the Legislature amended section 830.6 to address the loss of design immunity under

the holding in Baldwin, supra, 6 Cal.3d 424. (See Stats. 1979, ch. 48 1, 8 1, pp. 1638- 163 9.) The

amendment added three sentences that essentially provided that the public entity would have a

reasonable time after notice of the changed condition of the property (a) to perform remedial work,

or, (b) where it was unable to remedy the problem (due to practical impossibility or unavailability of

funding), to provide adequate warnings of the condition. Thus, as the Supreme Court recently

explained: "Under Baldwin and section 830.6 as amended, to demonstrate loss of design immunity

a plaintiff must establish three elements: (1) the plan or design has become dangerous because of a

change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous

condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry

out the necessary remedial work to bring the property back into conformity with a reasonable design

or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of

funds, had not reasonably attempted to provide adequate warnings." (Cornette, supra, 26 Cal.4th 63,

72.)

The Supreme Court in Cornette explained further that the factual determination of whether

there has been a change of condition of the property that renders it dangerous-unlike whether the

entity properly exercised its discretion in its initial approval and implementation of the design-does

not connote a second-guessing of the entity by the trier of fact. "The questions involved in loss of

design immunity, e.g., whether the plan or design has become dangerous because of a change of

physical conditions, are not the identical questions considered by the government officers who

adopted or approved the plan. . . Again, 'where experience has revealed the dangerous nature of the

public improvement under changedphysical conditions, the trier of fact will not simply be reweighing

034786.01 II Plaintifs Opposition to Defendant State of California's Motion for Summary Judgement- Page 17

the same technical data and policy criteria which went into the original plan or design. Rather, there

will then be objective evidence arising out of the actual operation of the plan . . . . No threat of undue

interference with discretionary decision-making exists in this situation.' [Citation.]" (Cornette, supra,

at p. 73, quoting Baldwin, supra, 6 Cal.3d at p. 435.)

Relying on the case of Compton v. City of Santee (1993) 12 Cal.App.4th 591 Defendant

appears to claim that Plaintiff is required to show a statistical aberrance. First, Plaintiff has shown a

statistical aberrance in that the accident and death rate is 250% greater than the Defendant's own

threshold. Second, Defendant would be incorrect in that once the State's warrants are met there is no

legal requirement that also Plaintiff show a statistical aberrance. Compton did not involve median

barriers. Further, in reversing a summary judgment based on design immunity, the Supreme Court

in Cornette notes only that "both the traffic volume and the number of cross-median accidents had

significantly increased."(Cornette v. Department of Transportation, supra, 26 Cal.4th 63,67.) There

was absolutely no requirement that the Plaintiff show a statistical aberrance. Also, while there are

Court of Appeal opinions that stand for the proposition that a statistical aberrance should be shown,

they were all in the context of cases where the Caltrans accident warrants had not been met. Here, the

warrants had been met and the accident and death rate was statistically aberrant.

Finally, a claim of loss of design immunity may involve issues of both law and fact, which

must be distinguished for purposes of a motion for summary judgment. In ruling on the motion, the

court must refrain from deciding issues of fact that are properly reserved for the jury. Cornette holds

"that, where triable issues of material fact are presented, . . . a plaintiff has a right to a jury trial as to

the issues involved in loss of design immunity." (Cornette v. Department of Transportation, supra,

26 Cal.4th 63, 67.)

V. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED

A.

Undis~uted Facts Support Each Element of its Affirmative Defense of Desien

Immunitv under Gov. Code @ 830.6

Defendant did not establish the first two elements of its design immunity defense: (1) a causal

relationship between the plan or design and the accident; (2) discretionary approval of the plan or

-

Plaintrf's Opposition to Defendant State of California's Motion for Summary Judgement- Page 18

design prior to construction. First, CalTrans admitted that the installation of median barriers is not

part of the highway design manual, it's actually a traffic manual function set forth in the Traffic

Manual. [Fact Nos. 66, 149 -1 501. Second, the only evidence introduced by Cal-Trans on this issue

is from Mr. Kevorkian and he admitted that he cannot rule out that someone recommended the

installation of median barriers in the design plan and it just wasn't done. [Fact Nos. 103 and 1501

As design immunity is intended to immunize only those design choices which have been made,

Defendant has not established it is entitled to the defense in the first instance. (Cameron, supra, 7 Cal.

3d at 326; Grenier, supra, 57 Cal.App.4th at 940.) Therefore, the "injury-producing feature" (or lack

of median barrier) must have been - but has not been established to be -- part of the plan or

considered by the public entity in developing and/or approving the plan. (Id. at p. 941 .) Further, if

questions of fact exist on the issue, they are to be determined by a jury. (See, Cornette, supra, 26

Cal.4th at pp. 74-76.)

B. There Are Triable Issues of Fact as to Defendant's Loss of the Design Immunitv

Defense

Here, Plaintiffhas established all three elements to establish that Defendant has lost the design

immunity defense, in that: (1) the plan or design has become dangerous because of a change in

physical conditions [Fact Nos. 30- 32,36 -37,51,54 - 65,74,76,94,96,106,108,109,111,114-124

1 -129, 138-144, 147 - 148, 153,154,156]; (2) the public entity had actual or constructive notice of the

dangerous condition thus created [Fact Nos. 23,30 - 32,34,41,43,44,46 - 48,50,58 - 65,94, 106,

I 108 - 109,111, 1 14 - 1 19, 120 - 124, 129, 147 - 148, 1541; and (3) the public entity had a reasonable

time to obtain the funds and cany out the necessary remedial work to bring the property back into ' conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due

to practical impossibility or lack of funds, had not reasonably attempted to provide adequate I

warnings." [Fact Nos. 29,75, 129, 1 14 - 1 19, 1521 (Cornette, supra, 26 Cal.4th 63,72.)

I C. *

of Triable Issues of Fact as to the Existence of a Dangerous Condition of Public

I Property.

Here, Defendant did not rely on any "evidence" to establish the absence of triable issues of

Plaintifs Opposition to Defendant State of California's Motion for Summary Judgement- Page 19

fact as to the existence of a dangerous condition. Rather, it relied on slight of hand by arbitrarily

focusing on a slice of the roadway to hide the bad statistics and it did not do a detailed analysis as to

the accident warrant rates - even though it admits that such an analysis is required for the installation

of median barriers. [Fact Nos. 77,8 1,82 - 84,lO 1,104, and 1 121. Defendant did not meet its burden

in bringing the motion

D. There Are Triable Issues of Fact Regarding the Existence of a Dan~erous

Condition of Public Pro~erty.

The evidence overwhelmingly establishes that the lack of a concrete median barrier on at least

three different sections of Route 126 constituted (1) a dangerous condition of public property, (2)

created a substantial risk of injury when the property is used with due care in a reasonably foreseeable

manner, (3) was the proximate cause of Plaintiffs injuries, (4) created a reasonably foreseeable risk

of the type of injury Plaintiff sustained and the State of California had actual and constructive notice

of the dangerous condition and sufficient time prior to the injury to have taken measures to protect

against the dangerous condition a dangerous condition of public property. The three sections are: I)

between mile markers 15.36 to 16.32, ii) between mile markers 13.45 and 16.32 and iii) between

mile markers 13.24 and 18.23 [Fact Nos. 30- 32, 36 -37,51, 54 - 65,74,76,94,96, 106, 108, 109,

11 1, 114-129, 138-144, 147 - 148, 153, 154,156, 1571

VI. CONCLUSION

Defendant State of California's attempt to escape accountability for Plaintiffs catastrophic

injuries has failed. Plaintiffs constitutional right to justice and to have ajury decide the factual issues

in this case has prevailed. Accordingly, Defendant's motion for summary judgment should be denied.

DATED: August 14,2006 LAW FIRM,

By: Arashhl6mam~our. Attornevs for Plaintiff A N D ~ S CASTRO

Plaintlf's Opposition to Defendant State of California's Motion for Summary Judgement- Page 20