sr-031180-6oRLK:SW:ray
CONFIDENTIAL
February 2II, 1980
T0: City Council MAR j ~ 99 ,
FROM: City Attorney
SUBJECT: Settlement of the Case Entitled Celestina Rostango 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 sidewalk crack on the south-
west side of 17th Street, near its intersection ca;th Ocean Parl: Blvd..,
on October 16, 1975. The following staff reports transmits a proposed
settlement of Five Thousand Dollars ($5,000).
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, which 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 welly<_as evidence provided by
various declarations, and determined the sidewalk cracks involved 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 pertinent part, the Court's opinion stated:
. (~
LIAR 1 1 J
"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 full trial."
(The Court's reference was to the case of Fielder v. City o£ 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 t7rs. Rostagno
in a very sympathetic position.
The area in which Mrs. Rostagno fell was, according to photos
taken both by the City and Mrs. Rostagno'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 i supported by the deposition testimony of both l9rs.
Rostagno and her daughter, Alice Ginelli, who was accompanying Nlrs.
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 very close to a parkway tree,
which is surrounded by the arguably dangerous conditions ahd 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 of 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 witness 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 ways: (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 compre-
hensive 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
TOTAL $ 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 $9y000. This surgical procedure was not undertaken and is not
contemplated in the future due to P4rs. 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'$5;000 settlement is based upon the reczommendation 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 P4rs. 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 Five Thousand Dollars ($5,000) in full and complete settlement
of the case entitled Celestina Rostagno v. City of Santa Monica,
Superior Court Case No. 4VEC 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 $5,000. Furthermore, the
cost of trying this case would be in the area of approximately $1,500,
representing the cost of Eity employees` involvement as well as the
fee charged by the City's defense physician.
PREPARED BY:
Richard L. Knickerbocker, City Attorney
Seth Weisbord, Deputy City Attorney
-6-