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sr-031180-6rRLK:STa:ms 3/5/a0 Council ~Stg: 3/11/80 CONFIDENTIAL T0: City Council FROM: City Attorney ~1A 1 1 0 Santa P4onica, California SUBJECT: Settlement of Case Entitled Feinstein v. City of Santa r~onica, et al., Case No. WE C 47590 INTRODUCTION: Plaintiff Ida Feinstein:, age 57, sustained a fractured right patella from a fall allegedly caused by a sloping portion of a sidewalk slab and adjoining displacement between the sidewalk and-curb located on the northern sidewalk abutting the bridge leading to .the Santa PAonica Pier. As a result of her fall, Ms. Feinstein underwent a partial patellectomy (knee removal) and reconstitution of the extensor mechanism (repair of tendons) during a ten day stay at UCLA Hospital. The follocaing Staff Report transmits a proposed settlement of Seven Thousand Dollars ($7,000.00). This Report also recommends acceptance of Two Thousand Dollars ($2,000,00) offered by cross-defendants State of California and County of Los Angeles to achieve an overall settle- ment of Nine Thousand Dollars ($9,000.00) and resolve this action completely. BACKGROUND: The settlement package is recommended for five basic reasons: 1. The $7,000.00 to be contributed by the City is only approximately twice T~1s. Feinstein's medical specials of $3,043.25, all incurred at UCLA Hospital in connection with her surgery. Ms. Feinstein also incurred $157.75 in miscellaneous expenses. She claims a loss of earnings in the amount of $3,720.00; the more likely amount for the approximate four month period of significant disability is $2,000.00. -1- MAR 1 j a~~~ '^V•r . RLK:SW:ms 3/5/80 Council "~tg: 3/11/8 2. Witness Jean Goodwin accompanied Pos. Feinstein on the day of the fall, July 4, 1976. Her testimony would aid Ms. Feinstein in pinpointing the condition described in the Introduction as the cause of the fall. Furthermore, there is a very great possibility that a jury would find the condition dangerous and thereby assess damages. 3. B4s. Feinstein suffered an objective and dramatic injury which may be permanent. Dr. Wilfred Krom, an orthopedic specialist, examined Ms. Feinstein on behalf of the City. He concluded that t4s. Feinstein will continue to have a mild weakness in the knee with an approximate ten to fifteen percent loss of function. 4. A trial of this matter would entail significant costs. In addition to the expense of expert medical testimony, the City would incur costs in connection with the trial of the Cross-Complaints against the State and County. In view o.f_ the likely defense verdicts in those actions, the cost to the City would be increased, consisting primarily of the cost of depositions previously taken by the County and State. Significantly, according to_the Personal'Injury Valuation Handbook prepared in 1978, the probability range for jury verdicts in cases involving patellectomies is $17,995.00 to $65,000.00. 5. After considerable negotiations by the City, the State of California and County of Los Angeles each offered $1,000.00 to promote settlement. This $2,000.00 contribution, approximately twenty percent of the total package, is substantial considering that trial on the Cross-Complaints would likely result in verdicts for the County and State. A?oreover, those likely verdicts would entail the payments of costs by the City to the County and State as indicated in paragraph A. By way of procedural background, the City brought a Cross- Complaint against the State, seeking full indemnification against any judgment rendered against the City on the basis of an agreement entered into between the City and State in 1968. The City cross-complained against the County, seeking an equal sharing of any judgment recovered against the City on the basis of a 1973 agreement. Both agreements provided that the State and County would inspect the bridge leading to the Santa Monica Pier - due to vagueness in the aareements, it is unclear whether these entities undertook to inspect that portion of sidewalk where plaintiff fell. Inspections were to be provided on an -2- RLK:SW:ms 3/5/80 Council dtg: 3/11/8C annual basis with recommendations for maintenance to be forwarded to City personnel. No recommendation regarding repair of the area where Pos. Feinstein allegedly fell was ever made. Unfortunately, despite this failure, it is highly unlikely that the City could prevail on either Cross-Complaint for the following reasons: (1) All of the personnel of the Street Offioe of the City Yards, the entity which would responsible for following through on any recommendations, where wholly unaware until recently of the existence of the City-County agreement. This was confirmed in depositions taken by the County of Street Office employees Efren Diaz and Alex Casillas. Recommendation reports as well as pertinent related documents were reaching the City Engineer's Office but were not forwarded to the City Yards. The same problem apparently affected the City-State agreement. (2) The condition which Ms. Feinstein complains of was in part created by the attempted repair of the sidewalk by City employee Henry Ochoa. The County and State would argue that their arguable failure to notify the City of the existence of the condition was meaningless; the City already had notice of the condition in 1973 through the actions of ~1r. Ochoa. In sum, the depositions of City employees as well as employees of the County and State indicate that the County and State followed through with their duties under the respective inspection programs; the City failed to follow through in obtaining a°nd acting upon the recommendations. Therefore, based upon the two major factors indicated above, the County and State are in excellent positions to contend that there is no causal connection between their arguable failure and Ms. Feinstein's injuries. (3) As a final consideration, the City's right to indemnification from the State would likely be blocked b_y the City's active negligence in not fully repairing the sidewalk. DAMAGES AND INJURIES: In addition to the damages and injuries indicated above, it should be noted that Ms. Feinstein underwent out-patient treatment at the UCLA Orthopedic Trauma Clinic on eight occasions between the date of surgery and discharge, April 6,-.1977. She used crutches and a cane for three and one-half months after surgery. -3- RLK:ST,Q:ms 3/5/80 Council Mtg: 3/11/8( ALTERNATIVE SOLUTIONS: The alternatives are either to approve the settlement or reject it and proceed to trial. RECOMP4ENDATION: This Office highly recommends that the City Council instruct the Director of Finance to draw a warrant made payable to Ida Feinstein and her attorney of record, Thomas Cronin, in the sum of Seven Thousand Dollars $7,000.00 in full and complete settlement of the case entitled Ida Feinstein v. City of Santa Monica, et al., Superior Court Case No. WE C 47590. It is also recommended that the One Thousand Dollar ($1,000.00) offers made by the County and State be accepted to achieve full resolution of this matter. PREPARED BY: RICHARD L. KNICKERBOCKER, City Attorney SETH WEISBORD, Deputy City Attorney -4-