HomeMy WebLinkAbout13 CLAIM S. ABDELSAYED 11-03-97 LAW OFFICES Of
'VVOODRUFF~ SPRADLIN & SM,,
A PROFESSIONAL CORPORATION
TO:
MEMORANDUM
Honorable Mayor and Members of the City Council
City of Tustin
FROM: City Attorney
DATE:
October 29, 1997
RE:
Claim of Said Abdelsayed .
NO. 13
11-3'9 7
RECOMMENDATION'
After investigation and review by this office and b~, the City's Claims Administrator,
it is recommended that the City Council deny the claim and send notice thereof to the
claimant and the claimant's attorneys.
DISCUSSION:
This is a claim for Personal injuries suffered by the plaintiff when his wheelchair was
struck by a car. The claimant allegedly suffered injury to his arm and shoulder, back and
hands. The claimant also alleges wage loss, loss of earning capacity and medical
expenses on the date of the incident the claimant was riding in his wheelchair.. He rolled
from. the sidewalk into the street where he alleges h'e was hit by a vehicle which left the
scene. In this location the sidewalk on one side of the street narrows from approximately
four feet to two feet wide and there is not sufficient space to fit a wheelchair .on the
sidewalk. There is a sidewalk on the other side of the street. The claim states that
because the sidewalk was not capable of accommodating wheelchairs, its constituted a
dangerous condition of public property. At this point in time, based on our investigation of.
the facts and the law, it is our opinion that this situation did' not constitute a dangerous
condition of public property and that primary liability for the claimant's injuries rest with the
claimant and the phantom car.
,,,:.
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LOIS E. JEFFR,F_..Y,Y
Enclosure
cc: William A. Huston, City Manager
1102-9737
54270_1
Office of the City Clerk
September 9, 1997
Carl Warren & Co.
P. O. Box 25180
Santa Ana, CA 92799-5180
Re-
City
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Transmittal of Document(s) "-..
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Claimant- Said Abdel sayed ""
Claim No.' 97-37
Filed With City- 9-8-97
of Tustin
300 Centennial Way
Tustin, CA 92680
(714) 573-3026
FAX (714) 832-0825
Receipt of Claim/Summons and Complaint by the City Clerk's Office on-
Date- 9-8-97
Time' 9'00 a.m.
By:
Personal Service upon the undersigned
Regular Mail
Certified/Registered Mail
Interdepartment Mail - City Attorney
The enclosed Claim (or Application to File Late Claim) was presented to
this office as indicated above' and has been referred to the appropriate
City department for its investigation and also to the offices of Woodruff,
Spradlin and Smart, Attn: Lois E. Jeffrey, City Attorney. By this letter,
you are authorized to commence the necessary investigation of this claim
on behalf of the City.
We request that you give such notices as may be appropriate to the City's
insurance carrier(s) and further request that you submit your preliminary
and all subsequent reports to the City, with a copy to the City Attorney
and to the insurance carrier(s) if they so request. Upon receipt of
advice from the City Attorney, we will plan to present this matter to.the
City Council and/or take such other steps as are directed by the City
Attorney.
Other:
A copy of this letter and enclosures were sent on 9-9-97 to the City Attorney
and Department Head, and the original was forwarded to the Finance Department.
.S/i4~,,erely, -! r., _ -
i,.~._ ,,, / ,,/ . ,~,~
~tU~'~l erie Crabi l~q;
~ Chief Deputy. Ci"{y Clerk
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Enclosures
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Frank P. Barbaro
BAR 3044417
HORTON BA3.BARO & REILLY
200 North Main St., 2nd Fi.
Post Office Box 4279
Santa Ana, California 92702
(714) 835-2122
Attorneys for Plaintiff
SAID ABDELSAYED
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ORANGE
SAID ABDELSAYED,
Plaintiff,
vs.
CITY OF TUSTIN, COUNTY OF
ORANGE, and DOES 1 to 100,
inclusive,
Defendants.
TO:
CITY OF TUSTIN
c/o City Clerk
300 Centennial Way
Tustin, ~A 92780
No.
GOVERNMENT CLAIM FOR PERSONAL
INJURY A~ D~J~L~GES PURSUAnT.TO.
GOVERNMENT CODE § 910,ET SEQ.
COUNTY OF O~NGE
Clerk of the Board of Supervisors
10 Civic Center Plaza
P. O. Box 687
Santa Aha, ~ 92702-0687
pLEASE TAKE NOTICE that Claimant SAID ABDELSAYED, hereby
makes claim against.the above and makes the following statements in
support of the claim:
1. This claim is presented by Horton Barbaro & Reilly,
attorneys at law, on behalf of SAID ABDELSAYED. Claimant's address
is:
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Said A~delsayed
2. Ail notices with regard to this claim should be directed
to Clai'mant,s attorneys-
Frank P. Barbaro
HORTON BARBARO & REILLY
200 N. Main Street, Second Floor
P. O. Box 4279
Santa A_na, CA 92702
3. The date and place of the occurrence giving rise to this
claim are as follows: This accident occurred on March 6, 1997, at
approximately 1-00 p.m. in the Southbound lanes of Tustin Village
Way, North of McFadden, adjacent to the sidewalk area on the west
of Tustin Village Way, City of Tustin, CoUnty of Orange, State of
California. The roadway, and adjacent property, including the
sidewalks and pedestrian walkways without wheelchair access, are
owned, controlled, operated and maintained by the City of Tustin,
County of Orange, Southern California Edison Company,' and Does 1
through 100, and each of them.
follows:
The circumstances .giving rise to this claim are as
a) ThiS is a claim for personal injury arising out of
the negligent design, construction, ownership, control, maintenance
and operation of the roadway and sidewalks of Tustin Village way,
between McFadden Avenue and Alliance (NorthboUnd of McFadden
Avenue). At the time of injury, March 6, 1997', the roadway and
sidewalks were in a dangerous condition, which created a
substantial risk of injury when said roadway or sidewa!ks' are used
with due care in a reasonably foreseeable manner. Plaintiffs
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injury was caused by the dsngerous condition. The dangerous
condition which caused Plaintiffs injury was either created by a
negligent act by an employee of the City of Tustin, County of.
Orange, Southern California Edison Company, acting within the
course and scope of their employment, or the City of Tustin, County
of Orange, or Southern .California Edison Company, had actual or
constructive notice of the dangerous condition a sufficient time
prior to'the accident so that measures could have been taken to
protect against the dangerous condition.
b) At the above time and place, claimant, Said
A~delsayed, who is confined to a wheelchair due to paraplegia, was
proceeding in his wheelchai'r southbound on Tustin Village Way, just
north of McFadden Avenue, City of Tustin, County of Orange.
Claimant was proceeding in his wheelchair, adjacent to the sidewalk
on the west side of the roadway, when he was struck'by a hit and
run driver, proceeding southbound on Tustin Village Way, causing
severe injuries, including but. not limited to severe injuries to
Plaintiff's arm, wrists, side and ba~k, possibly requiring surgery.
c) Claimant-was required to proceed in 5he roadway
because the sidewalk on the west side of Tustin Village Way is
obstructed to wheelchair travel by a utility pole, owned by
Southern California Edison Company, Which is located in the middle
of the sidewalk. The utility pole prevents a person in a
wheelchair from using the sidewalk and requiring wheelchair
operators to travel in the roadway. As a result of Plaintiff
'traveling in the roadway with high speed traffic, Plaintiff was
struck by a vehicle and seriously injured. The City of Tustin,
County of Orange, Southern California Edison Company, do not
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provide wheelchair accessibility on the sidewalks of Tustin Village
Way from ~cFadden north past Alliance Street, thereby creating a
dangerous condition.
d) At the time of the injurY, the roadway and
sidewalks of Tustin Village way, northbound of McFadden, between
McFadden and Alliance, were in a dangerous condition, which crea~ed
a substantial risk of injury when said roadway or sidewalks are
used with due care in a reasonably foreseeable manner. Claimants
allege that the aforementioned area was negligently designed,
constructed, owned, controlled, operated, and maintained, in tha~
there was a lack of warning signs, improper planning, and or
defective operation and maintenance. The City of Tustin, County of
Orange, Southern California Edison Company, created a condition
whereby persons with disabilities Were denied access to the
sidewalks and were required to ~trave! in wheelchairs with high
speed and high volume traffic, thereby creating the dangerous
condition which caused this incident.
e) The above described condition also constituted a
concealed trap, which with the absence of any warning signs,
endangered pedestrians and disabled persons such as claimant,
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causing Plaintiff's injuries.
f) Pursuant to the provisions of the Americans With
Disabilities Act,. 42 U.S.C.A. 12101 the above described conditions
deny disabled persons full and equal employment of the services,
facilities, privileges and accommodations provided to members of
the pUblic. .The condition created by the City of Tustin, County of
Orange, Southern California Edison Company, fail to provide an
accessible location which a disabled person can use, approach, or
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access, effectively prohibiting a disabled person 'from using the
sidewalks on Tustin Village Way between McFadden to the south, and
past AllianCe Street on the north. As a result of this condition,
Plaintiff sustained severe injuries noted below. The area of Zhe
accident is owned, controlled, maintained by the City of Tustin,
County of Orange, Southern California Edison Company, was in a
condition which violates the Americans With Disabilities Act ~2
U.S.C.A. 12i01, proximately causing Plaintiffs injuries.
g) Prior to this incident, .City of Tustin, County. of
Orange, Southern California Edison Company, and DOES 1 through 100,
inclusive and each of them, had actual and/or const~-uctive notice
of the dangerous condition, as hereinabove described, in sufficient
time prior to the injury to have taken measures to protect against
the .dangerous condition. Claimants allege that complaints
claimant were made prior to the date of the accident to the City of
Tustin, in sufficient time for the necessary- ch'anges to be made to
orevent the occurrence of such an accident.
5. The names of the public employees causing the injuries
sustained by claimant under the described circumstances are not
known to claimant at this time.
6. The injuries sustained by claimant, as far as known, as
of the date of presentation of this claim are personal injuries,
including but not limited to injury to the arm and shoulder,
requiring surgery, multiple injuries t0 Plaintiff's shoulder, arm,
back and hands.
7. Claimant claims personal injuries, wage loss, loss of
earning capacity, medical expenses, and general damages.
8. Claimant asserts that discovery is still continuing
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regarding the circumstances of this i'ncid=nt Claima~n
the right to modify this claim and amended any subsequent complaint
upon discovery of additional information.
September 2, 1997
Dated:
HORTON BA_RBARO & REILLY
J~n ~. O'Brien,
Jr.
Attorneys for Plaintiff
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1 PROOF OF SERVICE BY ~vLAIL
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I am employed in the County of Orange, Sta~e of California.
I am over the age of 18 and not a party to the within action; my
business address is 200 North Main Street, Second Floor, Santa
Ana, California 92701.
On September 3, 1997, I served by mail the foregoing
document(s) described as: Government Claim for Personal Injury and
Damages Pursuant to Government Code §910, Et Seq. on the
interested parties in this action by placing a true copy thereof
enclosed in a sealed enve!oDe addressed as follows:
City of Tustin
c/o City Clerk
300 Centennial Way
Tustin, CA 92780
County of Orange
Clerk of the Board of Supervisors
10 Civic Center Plaza
P. O. Box 687
Santa A_na, CA 92702-0687'
I am "readily familiar" with the firm's practice of
collection and processing correspondence for mailing. Under that
practice it would be deposited with the U.S. postal service on
that same day with postage thereon fully prepaid at Santa kna,
California in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal
cancellation date or postage meter date is more than one day after
date of deposit for mailing in affidavit.
Executed on September 3, 1997 at Santa Ana, California.
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'I declare under penalty of perjury under the laws of the
State of California that the above is true and correct.
Elaine Clark
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