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cfC' OF SAN BERNARDe'O - REQU~T FOR COUNCIL A~ON
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From: Bruce H. Gadbois
',tC'D -An..., Subject: Liability Claim Settlemen
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Dept: Risk Management
Data: February 23, 1987
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Synopsis of Previous Council 8CtionJ
NONE
Recommended motion:
That the Acting Director of Risk Management
the litigated claim of Tall~ v. City of San
No. 85B-034 for the sum of 2,310.75.
be authorized to settle
Bernardino, claim file
~/~.
Signature
Contact person: Kevin D. Sovereign
Supporting data attached: Staff Report
Phone: 383-5201
Ward: N/A
(Liability Claims)
Source: 629-453-53510
FUNDING REQUIREMENTS:
Amount:j2. 310.75
Finance:
w~ ~___.
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Council Notes:
75-0262
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Agenda Item No S-.5
City OF SAN BERNARDe-O - REQU~T FOR COUNCIL A~ON
STAFF REPORT
LIABILITY CLAIM SETTLEMENT
Tallv V citv of San Bernardino
85B-034
PLAINTIFF
The plaintiff in this action, Eileen Tally, is a 59-year old
female.
DEFENSE COUNSEL
The City is represented by the firm of Stanfield & Warner.
FACTS
On August 25, 1985, Mrs. Tally was injured while boarding a
Parks and Recreation Department passenger van for a return
trip from a City-sponsored outing to Laguna Beach.
INJURIES
The plaintiff's injuries consisted of a bruise to her right
shin. She was initially treated at Lema Linda University
Medical Center where she was diagnosed as having a bruised
shin. She was advised to elevate her leg. Mrs. Tally's
Attorney then directed her to another clinic for treatment and
therapy, where medical costs totalling approximately $3,500.00
were incurred.
SETTLEMENT DEMAND
The plaintiff's initial claim demand was $100,000.00. This
matter was referred by the Superior Court to Judicial
Arbitration and the plaintiff's demand just prior to
arbitration was $9,500.00. Due to the nature of the
plaintiff's injury and the demands being made, this matter was
vigorously defended. Defense costs to date are approximately
$4,300.00.
ARBITRATION
The arbitrator, Attorney Ken Nydam, awarded Mrs. Tally
$2,000.00 in addition to legal costs of $310.75. She has
agreed to accept this amount as full settlement.
SETTLEMENT AUTHORITY REOUESTED
Settlement authority in the amount of $2,310.75 is requested.
7~0264
2/23/87
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':C'D.-ADH.tM. IFF.
. 'l FEB 24 PM 3: 53
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN BERNARDINO
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San Bernardino Parks. Rec-)
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In the matter of
CASE ~O. SCV 231564
Eileen Tallv
AWARD OF ARBITRATOR
(JUDICIAL COUNCIL RULE 1615)
vs.
The undersigned Arbitrator, having been duly s~orn
~nd having heard the cause on
January 15
, 1982-, and
havina considered the evidence
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of t~e r,arties,
awards i~ full
ar.d
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Plaintiff shall
recover
from Defendant(s)
follo~s :!
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final settlement of all claims submitted to arbitration as
heck appropriate box:
as damages
the sum of $
2,000,00
C!]
Together with statutory costs of suit.
(NOTE: .>.rbi-
trator may deny costs where the Award is less than
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The Plainti~sclaim is
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Defendantls) is
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den~ed,
awarded statutory costs of suit.
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January 19. 1987
DATED:
ARBITRATOR
Kenneth W, Nydam
PROOF OF SERVICE BY MAIL
10 Per Judicial Council Rule l6l5lb), I, the undersigned declare
11 under penalty of perjury, that a copy of this Award has been
12 served on :he above named parties and their attorneys. of
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record en
January 19. 1987
DATED:
January 19. 1987
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ARBITRATOR
Kenneth W. Nydam
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN THE COUNTY OF SAN BERNARDINO
the Matter of
NO, SCV 231564
14 SAi~ BERNARD INO PARKS,
RECREATION & COMM. SYCS, DEPT,
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AWARD OF ARBITRATOR: OPINION
12 EILEEN TALLY,
13 vs.
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Plaintiff, Eileen Tally, received injuries on August 26,
17 1985 while climbing into a bus owned and operated by the San Bernar-
18 dino Parks and Recreation Department. The bus driver, Ernest Smith,
indicates that he didn't see any fall or any injury occur to Mrs,
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ally even though he was seated initially in the passenger seat of
the van and did not note her tn have fallen, but rather when he went
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to assist her, saw her in a squatting down position in the van. How-
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23 ever, Mrs. Tally has demonstrated pictures of a bruise which would
24 indicate a blow to her shin are& and she also indicated to the driver
2S that she had a bruise and he recalls looking at it, It seems
26 inconceivable that she would show him a bruise if this bruising did
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1 foot did move off the step as indicated by her so as to cause her
2 leg to fall back up against the door sill of the van, causing this
3 bruis ing.
4 The conflicts concerning the manner in which this acci-
5 dent occurred result from the discrepancies in testimony. Plaintif
6 presented evidence indicating that when the van was stopped in
7 Laguna Beach, a curb was available for stepping from the van. On
8 the re-entry, a curb was not available, The city maintains that a
9 curb was available. Whether there was or wasn't a curb available
10 seems somewhat immaterial, It can't be expected that the van
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operated by the City, even though it might transport disabled peopl ,
would always be able to stop next to a nice high curb. It would be
unreasonable to expect that the driver would have to drive around
a city waiting to see a place to stop that would have such a curb.
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There was also disagreement as to whether the persons
aboard the trip were disabled people or persons without disabilitie
and whether the bus driver should have had some insight into the
18 medical condition of Mrs. Tally. Also, there is considerable dis-
19 agreement as to whether Mrs. Tally asked for assistance as she
20 approached the van or whether, as is indicated by the van driver,
21 that no assistance was requested, The discription of the van and
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the pictures, however, indicate that at least the floor of the van
was some 24" from the street level and entry into this van is much
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different than a person entering a bus where they can st~nd up
straight and pull on rails on each side of them as they merely clim
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a few steps much as they woulc ~~~~ce a building. Entry into a van
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1 and young adults may easily climb into a van, as persons become
2 older this maneuver becomes more difficult and it is the opinion of
3 this hearing officer that a van driver should always be at the door
4 when anyone beyond middle age is making entry into a van, This is
5 whether a person asks for help or not and they are merely to serve
6 as a backup in case assistance is needed, In the instant case, the
7 driver was merely sitting in his seat with his door open, He should
8 have been on his feet, perhaps holding the elbow of Mrs, Tally until
9 and unless he determined that additional assistance was needed to
10 propel her into the van.
11 On the other hand, Mrs. Tally, given her physical conditio
12 as she related and the difficulties that she portrays in getting up
13 the two foot step, should not have undertaken this task without
14 immediate help nearby. Her statement that she asked and got no help
15 and was afraid that she would get left behind seems unrealistic.
16 With two other helpers in additiop to the bus driver and their need
17 to account for the people they take onche trip, it's inconceivable
18 to think that she would ever be left behind merely because she
19 wouldn't step into the van on her own, She should have merely
20 remained at the side of the van until someone did help her and if
21 she was blocking the doorway, it surely seems that somebody would
22 have shown up to assist her, whether it be the bus driver or one
23 of the other city workers along to help people onfue trip. Further,
24 it would appear, even if she asked for help, that no one'else was
25 there to get in the van yet and perhaps the bus driver was only
26 waiting until the group arrived so that he could assist the~ into
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1 in the van wasn't working and on a 1150 day, one would clearly not
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enter a vehicle any sooner than they needed to. It's more plausibl
to think that she was trying to get the seat of her choosing,
It is the opinion of the arbitrator that each of the
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5 parties should be held 50% responsible for the injury, The
6 question as to what injuries were sustained by Mrs, Tally is a
7 very difficult question to answer, Her testimony indicates the
8 various and many problems that she experiences in life and from her
9 testimony, it would appear that her life is quite a struggle becaus
10 of her medical problems, Her testimony indicates she is very
11 concerned about her problems and no doubt expects the very best
12 medical attention that she can obtain to make her life more
13 comfortable, Her testimony indicates that she received this bruise
14 on her shin. t{hile she looked at the pictures that dealt with her
15 knee and she mentions there was yellowing of the ankle that
16 couldn't be seen on the pictures, it would appear that she feels
17 that it was her shin that was hurt. She indicates that she went
18 to Loma Linda University Medical Center on two occasions and felt
19 they didn't give her much treatment. On the other hand, it wasn't
20 really explained what treatment she thought she should get. While
21 the picture shows her right knee to be discolored, there is a
22 report from Dr. Schoettlin dated October 6, 1977..indicating that
23 there was internal derangement of her right knee. The report of
24 February 19, 1982 would indicate she was still having ~ifficulty
25 with the right knee, In fact,the reports would indicate serious
26 problems with that knee from May 20, 1975. It would also appear
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What appears to be missing from the materials submitted
are any reference to the emergency room procedures or what Mrs.
Tally had to say at the emergency room on the day of the injury, as
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well as a few days later,
There also is no billing indicating what
5 they treated her for on those occasions.
6 One can't help thinking, however, that Mrs. Tally has
7 considerable medical problems and the injury to her shin area, as
8 well as whatever aggravation that may have caused to her ankle a~d
9 knee, certainly work to cause additional problems to her medical
10 condition and should not be taken lightly. In that she did not
11 describe in her testimony any turning or wrenching of the joints,
12 but rather the leg falling back up against the van, creating the
13 bruise right in the middle of her shin, coupled with the fact that
14 her weight never fell as she indicated she supported herself until
15 she was assisted by the driver, It would appear that all of her
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treatment was not in connection with injuries received in this
specific accident,
It is the opinion of the arbitrator that her total
injuries would be properly compensated by an award of $4,000.00,
However, in that she is 50% responsible for her ~njuries, the award
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is $2,000.00 plus she is to
roco,"r CO.::~: ;ubmir:;~( ,(
KennethW. Ny am 7J ~
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