Family of pedestrian killed at deadly intersection sues Atwater

Atwater is being sued by the family of a woman who was killed crossing an intersection in 2010, according to a complaint filed in Merced Superior Court.

The Merced Sun-Star has learned the victim, Delia Gonzales, 73, was the third person killed in the same intersection since 2002.

The lawsuit was filed by Gonzales’ surviving spouse, Genovevo “Gene” Gonzales, and her children, according to court documents. The lawsuit also names as a defendant Michelle Carrizales, a Merced County resident who was driving the vehicle that killed Gonzales.

The crash happened at the intersection of Bellevue Road and Linden Street on Dec. 16, 2010, the lawsuit says. The family claims the city is responsible for designing, constructing, maintaining and supervising safe public roadways.

The lawsuit says Gonzales died as a direct result of “negligent design” of the intersection, including visual obstructions, improperly timed traffic signals and inappropriate roadway maintenance, pavement striping and signage.

“The above-described dangerous conditions caused the subject incident and the death of Delia Gonzales,” the complaint says, adding the city failed to take “corrective” measures to fix the intersection.

Gonzales was killed when she tried to cross Bellevue Road while walking on Linden Street and was struck by a 2007 Chevrolet Silverado, according to court documents.

The family is seeking an undisclosed amount of money, exceeding $25,000, including a loss of wages and financial support, burial costs, and loss of love and companionship.

The victim’s spouse, Gene Gonzales, declined comment when reached by the Merced Sun-Star this week. “I’m not at liberty to discuss the case because I’m going to testify,” Gonzales said before hanging up.

The family’s Sacramento-based attorney, Roger Dreyer, on Tuesday told jurors that the city hired a licensed traffic engineer in 2004 to develop plans to modify the intersection’s traffic lights. The city paid the engineer, Wilbur Elias, more than $3,000 for the plans but never followed through with the work.

In 2004, Elias recommended splitting the cross street signals – meaning only one light would be green at a time – to improve pedestrian safety and expedite traffic. Elias testified Tuesday that city officials never told him someone was killed at the intersection or showed him collision reports.

The city admitted to having sufficient funds to cover the improvements in 2004, according to Dreyer.

“If they had implemented the plan in 2004, Ms. Gonzales would have had the red light,” Dreyer said in court. “She wouldn’t have been in the intersection to be killed.”

Atwater City Manager Frank Pietro wouldn’t comment on pending litigation. One of the city’s attorneys in the case, Stephanie Wu of the Modesto-based firm Borton Petrini LLP, declined to comment or provide copies of court documents related to the case.

Wu argued in court Tuesday that the city isn’t required to split or modify the traffic signals and a collision doesn’t necessitate these types of changes.

The attorney representing Carrizales, R. James Miller of the Sacramento-based firm Powers & Miller, also declined comment.

In addition to Gonzales, two others have been killed at the same intersection: John Toews, 77, in 2002 and Winifred Dunton, 90, in 2008.

In an interview with the Sun-Star, Atwater Planning Commissioner Fred Warchol said he pleaded with city officials to fix the intersection following the first death. Warchol, who will testify later this week, said some adjustments were made to the signal lights, but the problem was never fully resolved.

“I felt that the city could have done a better job to address it and in a more timely manner,” said Warchol, who served as a traffic commissioner from 2002 to 2006. “After the death of Mr. Toews, I did plead with the public works director to look into it and brought it to a City Council member.

“The public works director said the city will look into it, and I never got anything more from that,” Warchol continued.

The man who fatally struck Dunton in 2008 also testified in court Tuesday, saying the accident was “traumatizing” but that he didn’t believe he was fully responsible. “I felt that at the time of the accident, it was neither my fault or the lady’s fault,” Elmo Coker of Atwater told the jury.

Dunton’s daughter-in-law told the Sun-Star in a telephone interview that her mother-in-law was killed 11 days shy of her 91st birthday.

“The man who killed her made a left-hand turn into her while she had the right of way on the crosswalk,” said Joan Dunton, describing her mother-in-law as active and full of life. “She lived alone, went to the store every day, took care of herself and even swept her own gutters. She would not have died at that time if it weren’t for that accident.”

Dunton, a Livermore resident, said she’s sorry to hear the same intersection claimed another life. “If that intersection has killed three people, then I’d like to see them do something about that,” she said.

The Gonzales trial began Sept. 8 and is expected to conclude by the first week of October.

This story was originally published September 23, 2014 at 10:53 PM with the headline "Family of pedestrian killed at deadly intersection sues Atwater."