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Council Meeting of April 14, 1981 Santa Monica, California
CONFIDENTIAL STAFF REPORT
TO: P4AYOR AiJD CITY COUNCIL
FROD4: CITY ATTORNEY
SUBJECT: REQUEST FOR APPROVAL OF SETTLEMENT AGREEMENT
JORGE ZAHLER V. CITY OF SAtQTA MONICA
CASE NO. WEC 42342
INTRODUCTION
Approval is requested for $35,000.00 in settlement
of the above-referenced lawsuit. This agreement was negotiated
at the Mandatory Settlement Conference on March 25, 1981, before
Judge Robert Feinerman.
FACTS-
Plaintiff, Jorge Zahler, age 72, filed suit against the
City of Santa Monica for injuries sustained as a result of his
fall on October 10, 1975. After parking his car on Euclid Avenue
north of California Avenue, plaintiff proceeded toward the side-
walk where upon he caught his foot in a drain basin, fell and
sustained serious injuries necessitating three surgeries.
Plaintiff alleges that his fall and resulting injuries were
caused by a dangerous condition of City property.
Inspection of the subject :drain basin revealed an
unusually deep depression with a number of pot holes and
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substantially worn asphalt. There is no grill over the mouth of
the basin to protect pedestrians. Th6 nearest street light is
located approximately 70 feet away from the. basin and does not
adequately illuminate the opening of the drain basin.
Because the City makes Yearly inspections of the City's
drain basins, we do not have the defense. of lack of notice in
this lawsuit. Furthermore, plaintiff has an independent witness
who sustained a fall similar to plaintiff's at this location,
DAD4AGES
As a result of this accident, plaintiff sustained a
severe fracture to his right leg, Plaintiff was treated at
St. John's Hospital and UCLA Medical Center immediately after
the accident. His leg was placed in a long cast, and a metal
walker was prescribed,
Five (5) days after the accideht, plaintiff sustained
a fractured hip when he fell while using his walker,
Plaintiff suffered complications following his hip
surgery which necessitated two (2) subsequent surgeries at
UCLA Medical Center. Since plaintiff is a diabetic, he developed
diabetic ulcers on his legs as a result of this incident.
Treatment of these alcers lasted approximately two (2) years
and required hospitalization. Plaintiff's medical expenses
totalled $27,574,.83.
There is no indication in plaintiff's previous medical
history of a pre-existing condition which may have contributed
to plaintiff's original fall.
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LIABILITY
There is a strong probability a jury would find the
City to be liable. If the City had properly inspected the drain
basin, it would have been-aware of :its deteroratirig condition. The
basin is one of the oldest in the City, and nothing had been
done to upgrade it or make it safer. A jury might well conclude
that the basin was a dangerous condition, particularly in view
of the fact that it was located on a dark street where it could
not easily be seen.
California law provides that if a defendant is liable
for the original injury to plaintiff, defendant is also liable
for any injuries sustained in subsequent accidents which are a
normal consequence of the impaired physical condition caused by
the original injury and cahich would not have occurred had the.
plaintiff's physical condition not been impaired,
There is same indication that plaintiff was
contributorily negligent, because he could,' have observed where
he was walking. However, depositions reveal plaintiff to be a
sympathetic, credible witness.
PRE-TRIAL SETTLEMETdT NEGOTIATIONS
Prior to the Mandatory Settlement Conference of
March 25, 1981, plaintiff's attorney demanded $150,000. In
light of what we felt to be a high. demand, the City did not respond
with a counter offer. At the P-laudatory Settlement Conference,
plaintiff reduced his demand to $100,0.00. We advised plaintiff's
attorney that this figure was unacceptable and we would not
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recommend the amount for Council approval. Additional negotiations
with Judge Robert Feinerman, plaintiff's attorney, and Deputy City
Attorneys Yvonne Binstock and Paula Palmor continued for approx-
imately three (3) hours. Judge Feinerman advised that a jury
verdict in this case could range between $75,000 and $150,000,
that plaintiff's attorney probably would not accept less than
$40,000, and that a $40,000 settlement would be an excellent one
for the City. After further negotiations, plaintiff agreed to
accept $35,000 in settlement.. This offer to settle by plaintiff,
however, will be withdrawn on April 15, 1981, if Council fails
to approve it at the April 14, 1981 meeting. The alternative
to settlement would be to proceed to trial now set for
May 18, 1931.
RECOMI~2ENDATION
°tQe recommend the approval of the $35,000 settlement,
In view of the City"s liability and the documented medical bills
in excess of $27,000, there is a potential jury verdict in excess
of $100,000,
Prepared By:
STEPHEN S, STARK
Acting City Attorney
YVONNE BINSTOCK
Deputy City Attorney
PAULA B. PALMOR
Deputy City Attorney
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