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CONFIDENTIAL
T0: City Council
FROM: City Attorney
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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.
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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
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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.
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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
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