Atwater files motion to retry $3.2 million pedestrian death case

Atwater attorneys this week filed a motion for a new trial to overturn a recent verdict that awarded $3.2 million to the family of a woman who was killed while trying to cross an intersection.

A jury last month returned a unanimous verdict determining the city of Atwater was 100 percent responsible for the “dangerous condition” of the Bellevue Road and Linden Street intersection, which claimed the life of 73-year-old Delia Gonzales in 2010 and two other victims in 2002 and 2008.

Gonzales was killed Dec. 16, 2010, when she tried to cross Bellevue Road while walking on Linden Street. She was struck by a 2007 Chevrolet Silverado, according to court documents. The Gonzales family sued the city for funeral and burial expenses as well as noneconomic damages, such as the loss of love and companionship.

After a monthlong jury trial, the Oct. 6 verdict absolved the driver of the vehicle, Michelle Carrizales, of any responsibility in the fatal accident. Carrizales was not negligent and not at fault for the crash, the jury determined.

One of Atwater’s attorneys in the case told the Merced Sun-Star the city planned to fight the verdict. Brad Post of the Modesto-based firm Borton Petrini LLP said he’d argue Atwater is protected under the law of design immunity – which allows a public entity to avoid liability in dangerous condition cases if three elements are satisfied.

The elements are showing that the intersection’s design was reasonable, that the death was caused by a feature inherent in its design and that the plan was approved by a discretionary body (like the City Council) prior to construction.

Gary Gonzales, the victim’s son and a plaintiff in the civil lawsuit, publicly blasted the Atwater City Council last week for the city’s appeal of the verdict.

“After four long years, my family received justice for my mother,” Gonzales told the council members. “But now the city of Atwater has chosen to extend this four-year nightmare and appeal the unanimous verdict and try to hide behind a veil of perceived immunity.

“Shame on you – shame on the City Council for attempting to deflect your responsibility once again,” he continued. “Your hands are covered with the blood of three citizens that were killed because you failed to do your job.”

The family’s Sacramento-based attorney, Roger Dreyer, presented evidence during the trial showing Atwater hired a traffic engineer in 2004 to develop plans to modify the intersection’s traffic lights. The city paid more than $3,000 for the plans, but never followed through with the work.

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

Dreyer told the Sun-Star Tuesday he’s not surprised Atwater is continuing to deny responsibility, calling it an automatic knee-jerk reaction from the city.

“It goes back to the arrogance we see with public entities and their insurance companies that don’t respect the process,” Dreyer said. “I think it’s an example of the city and its insurance company, which is actually making the decisions, wanting to ignore what a jury that heard all the evidence decided.”

Dreyer said public entities often claim paying large jury awards will impact taxpayers through increased fees and cuts to city services – but that’s not correct.

“They budget for this and put money aside every year to pay for (insurance) premiums. It has zero impact on the city and its services,” Dreyer said. “(Atwater officials) just feel like they shouldn’t be held accountable. Nothing will bring these three people back, but they want to continue to pretend it didn’t happen.”

This story was originally published November 18, 2014 at 4:01 PM with the headline "Atwater files motion to retry $3.2 million pedestrian death case."