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sr-112779-6iRLK : SW :ray 3 `~ J CONFIDENTIAL ~`y{j'~{ `~ ~ ~~~~ November 20, 1979 T0: City Council FROM: City Attorney SUBJECT: Settlement of the Case Entitled Celestna Ro~taano v. City of Santa Monica, Case No. WEC 43702 INTRODUCTION: Plaintiff Celestina Rostagno, age 94, sustained a fractured patella from a fall allegedly caused by a sidewalkxcrack'on the'south- west side of 17th Street, near its intersection with Ocean Park Blvd., on October 16, 1975. The follocaing staff reports transmits a proposed settlement of Ten Thousand Dollars ($10,000). BACKGROUND- This litigation has followed a long and costly path. On October 14, 1977, the City's Motion for Summary Judgment, intended to effectuate an early termination of the lawsuit, was heard and granted. The Motion was brought on the basis of Government Code Section 835.2, cahich provides that public property defect lawsuits cannot be maintained if they are based upon conditions which are deemed to be trivially defective. The Honorable Laurence Rittenband viewed the photographic evidence, as well as evidence provided by various declarations, and determined the sidewalk crack s:'.nvolved'.to be trivial and not legally dangerous. An appeal by plaintiff followed and the California Court of Appeal on February 21, 1979, reversed the lower Court determination. In x~erti.nent-park; the Cour~`'s opinion stated: ©~ 2 7 iS73 "Here, the City's declaration shows only the depth of the cracks; however, the photographs, incorporated by reference in that declaration, show that the crack was wide, and jagged, and the general area in a state of disrepair. On that record, presented by the City itself, Fielder requires that the issue of whether the defect was trivial or dangerous must be decided_by_a_ £ull_trial_~_' (The Court's reference was to the case of Fielder v. City of Glendale, a recent Court of Appeal decision clarifying the standards by which defective sidewalk cases are to be decided). The City subsequently filed a Petition for Rehearing in the Court of Appeal which was denied; the follow-up Petition for Hearing before the California Supreme Court was also denied. The Court of Appeal decision is significant in that it would preclude the City from possibly prevailing at an early stage of trial and would guarantee that the matter would be submitted to the jury. This is particularly significant in view of the fact that plaintiff is now 94 years old and suffered objective and serious injury; these factors taken together would place Mrs. Rostagno in a very sympathetic position. The area in which Mrs. Rostagno fell was, according to photos taken both by the City and Mrs. Rastagno's daughter, in a general state of disrepair, as noted by the Court of Appeal decision. That one of the two major cracks in this general area was the cause of Mrs. Rostagno's fall is supported by the deposition testimony of both Mrs. Rostagno and her daughter, Alice Ginelli, who was accompanying Mrs. Rostagno at the time of the fall.. In pertinent part, Mrs. Rostagno testified that "my heel went in the hole and then I went down." (Depo- sition, page 9, lines 25 through 28). Furthermore, and most significant, Mrs. Rostagno indicated that her fall was verb. close to a parkway tree, which is surrounded by the arguably dangerous conditions and which apparently created them. (Deposition, page. 7, lines 7 through 12). -2- Mrs. Alice Ginelli's deposition testimony supports plaintiff's contentions. Although she did not actually observe her mother's fall, Mrs. Ginelli testified that she observed her mother lying on the ground with her feet next to one o£ the two major displacements in the area. (Deposition, page 33, lines 1 through 5). Furthermore, Mrs. Ginelli indicated that her mother fell in the vicinity of the parkway tree. (Deposition, page 9, lines 10 through 12). Independent vzitness Robert Jansen observed the fall. According to a written statement provided originally to plaintiff's attorney in August of 1978, "she had tripped, as near as I could tell, on a misalign- ment in the sidewalk." In order to establish her case, Mrs. Rostagno would have to show that the City had legally presumed knowledge of the defect. This could be done in two caays: (1) Mrs. Alice Ginelli would testify to her general familiarity with the subject area for two years preceding the accident and the area's general state of disrepair throughout that period; (2) In years prior to the accident, there existed no regular and comprehen- sive program for inspection of City streets. The existence of the con- dition complained of would likely have been turned up by a regular system of City inspection. DAMAGES AND INJURIES: Dr. Harold Bartley Dr. Ralph Hansen Schaeffer Ambulance Prescriptions Dr. John Viboch Santa Monica Hospital $ 30.00 35.00 43.00 97.00 374.00 706.00 TOTAIi~ $1,285.00 As a result of the fall, orthopedic surgeon Dr. John Viboch diagnosed a transverse fracture of the middle portion of the left patella. Although the plaintiff incurred damages noted above, -3- it was recommended by Dr. Viboch that the plaintiff undergo a surgical procedure, explained subsequently, with an estimated cost of $9,000. This surgical procedure was not undertaken and is not contemplated in the future due to Mrs. Rostagno's advanced age. However, the recommendation by Dr. Viboch that the plaintiff undergo this surgery to correct her present problems indicates and substantiates the fact that the plaintiff's pain and difficulties are present and not corrected. Had she undergone this surgery, it is likely that the plain- tiff would not be suffering from her present complaints and permanent disabilities. The City must take the plaintiff "as they find her" and the $10,000 settlement is based upon the recommendation of the surgical procedure at the estimated cost of $9,000. The amount recommended in the settlement is based upon the serious and continuous nature of plaintiff's injury through the four years since the accident. Mrs. Rostagno complains of continuing diffi- culties with her knee; in recent responses to interrogatories, she stated that her: left knee remains weak and restricts her ability to walk. While problems of this sort might normally be expected to affect a woman of plaintiff's age, Mrs. Ginelli, Mrs. Rostagno's daughter, in deposition of October 6, 1977, testified that after the accident, Mrs. Rostagno. experienced unaccustomed difficulty in walking substantial distances, climbing stairs and sleeping. Further- more, according to Mrs. Ginelli, the physical limitations affecting her mother induced an increased feeling of depression. Mrs. Rostagno's complaints and the observations of her daughter are borne out by the report of her treating physician, Dr. John Viboch. In pertinent part, Dr. Viboch's report states: -4- She returned on February 15, 1977. At this time she stated. that she was having increasing pain over the medial and lateral aspect of the patella of her left knee. This was aggravated by cold, damp weather. Examination of the knee joint showed a definite increase in subpateller crepitation (characteristic sound produced when two ends of a broken bone are rubbed together) of the knee joint and this was associated with pain. There is no instability or mal-alignment to the knee joint and there is good range knee motion. X-rays of the left knee at this time showed the fracture. through the mid-portion of the patella to be well healed. There, however, was a mild off-set in the position and there was increasing subpateller arthritis noted." The seriousness of Mrs. Rostagno's prognosis as of 1977 is indicated in Dr. Viboch's conclusion: I gave her a prescription for some pain medication and advised her that her condition would gradually get worse and eventually she will have severe enough symptoms so that she will require an operative pro- cedure in which the patellar femoral (referring to a bone of the thigh, extending from the knee to the hip) surfaces are replaced with artificial metal and plastic surfaces." ALTERNATIVE SOLUTIONS: The alternatives are either to approve the settlement or to reject it and proceed to trial. RECOMMENDATION: It is the recommendation of this office that the City Council instruct the Director of Finance to draw a warrant made payable to Celestina Rostagno and her attorney of record, Jack Diamond, in the sum of Ten Thousand Dollars ($10,000) in full and complete settlement of the case entitled Celestina Rostagno v. City of Santa Monica, Superior Court Case No. WEC 43702. The settlement is particularly recommended in view of the fact that should this case proceed to trial, the trial court is bound to submit the matter to the jury and that plaintiff's sympathetic appearance and continuous difficulties will -5- likely result in a verdict in the area of $10,000. PREPARED BY: Richard L. Knickerbocker, City Attorney Seth Weisbord, Deputy City Attorney -6-