Personal InjuryPersonal Injury Legal Cases
Dangerous Walkway Conditions Lead To Severe Personal Injury
Attorneys for Plaintiffs JANICE SILVA and ROBERT BOSTWICK,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ORANGE
JANICE SILVA and ROBERT BOSTWICK,
Plaintiffs,
vs.
The CITY OF SAN CLEMENTE, and DOES 1 to 10, Inclusive,Defendants.
CASE NO. 00358826
[unlimited civil]
COMPLAINT FOR DAMAGES FOR DANGEROUS CONDITION OF PUBLIC PROPERTY (Government Code §835);
DEMAND FOR JURY TRIAL
COME NOW Plaintiffs JANICE SILVA and ROBERT BOSTWICK, and for causes of action against Defendants The CITY OF SAN CLEMENTE and DOES 1 through 10, inclusive, allege: FIRST CAUSE OF ACTION (Dangerous Condition of Public Property)
1. Plaintiff JANICE SILVA is a competent adult resident of San Luis Obispo County.
2. Plaintiff ROBERT BOSTWICK is a competent adult resident of San Luis Obispo County.
3. At all relevant times, plaintiffs SILVA and BOSTWICK were and are spouses to each other.
4. Defendant CITY OF SAN CLEMENTE is a local public entity subject to liability under Gov. Code §835 et. seq., under which this action is brought.
5. On January 19, 2010, plaintiff JANICE SILVA presented a timely claim for damages in proper form under Govt C. §900 et seq. arising out of the incident described below to the CITY OF SAN CLEMENTE. On January 28, 2010, plaintiff JANICE SILVA received written notice from the CITY OF SAN CLEMENTE that such claim was rejected. This action is timely under Govt. C. §945.6 and each other applicable statute of limitation.
6. On January 19, 2010, plaintiff ROBERT BOSTWICK presented a timely claim for damages in proper form under Govt C. §900 et seq. arising out of the incident described below to the CITY OF SAN CLEMENTE. On January 28, 2010, plaintiff ROBERT BOSTWICK received written notice from the CITY OF SAN CLEMENTE that such claim was rejected. This action is timely under Govt. C. §945.6 and each other applicable statute of limitation.
7. Plaintiff is presently ignorant of the true names, capacities and statuses of the defendants respectively sued herein as Does 1-10, inclusive, and will amend to allege same when such information is ascertained. On information and belief, each Doe defendant is legally responsible in some manner for the negligence and/or injuries and damages alleged herein.
8. On information and belief, each defendant at all pertinent times was the agent, servant and/or employee of each co-defendant acting within the course, scope, purpose and authority of such agency, service and/or employment with the full actual or constructive knowledge, permission, consent and/or ratification of each co-defendant.
9. The incident occurred at the Linda Lane beach access tunnel and appurtenant walkway in the city of San Clemente, on July 26, 2009 in the afternoon. On the incident date, the walkway through the subject tunnel and beyond, toward the Linda Lane parking area, and the curbs along the edge, were completely covered with 8 to 10 inches of seaweed, sand and other debris, to the point where the edges of the walkway and the adjacent curbs could not be distinguished. Plaintiff SILVA, accompanied by her husband, was walking in this area from the beach toward the parking area when the material under her left foot suddenly gave way and caused her foot to sink and become trapped even though her forward bodily motion continued, which caused her leg bones to break.
10. Plaintiff at all times was using the subject area with due care in a manner in which it was reasonably foreseeable that it would be used.
11. On and before the incident date and time, the subject area was real property owned and controlled by defendant City of San Clemente and thus is property of a public entity or public property as defined in Gov. Code §830( c ).
12. At and before the incident described in paragraph 1, the subject area was in a condition that created a substantial risk of injury to plaintiffs and others who might use such area for similar purposes and in similar ways, and thus was in a dangerous condition as defined in Gov. Code §830(a). Such condition existed as a result of the area not being cleared of accrued debris in a manner that would not hide the danger existing in the area where plaintiff Janice Silva stepped, thus creating the risk of a person like plaintiff being injured in the manner that she was.
13. The dangerous condition created a reasonably foreseeable risk of the kind of injury incurred by plaintiff and such risk was clearly foreseeable for a substantial time before the incident herein, because the tunnel and walkway were prone to flooding and deposit of substantial amounts of debris by ocean tides in the same manner was existed on the incident date.
14. On information and belief, the dangerous condition was negligently and wrongfully created and/or allowed to continue in existence beyond a reasonable time after its emergence by one or more employees of San Clemente, and San Clemente had actual and/or constructive knowledge of such condition a sufficient time ahead of the injury so as to protect against it by sufficiently repairing, remedying or correcting it, providing adequate safeguards against it, and/or adequately warning of it, and failed to undertake such protective measures.
15. The existence of the dangerous condition and San Clemente's failure to act appropriately with regard to it was a substantial factor in causing or contributing to the incident, and thus a proximate cause of the injuries suffered by plaintiffs.
16. The injuries to plaintiff Janice Silva have caused her to suffer severe bodily injury, past and future physical and mental pain and suffering, past and future other noneconomic losses, past and future economic losses, and other damages to be determined, in amounts to be proved.
SECOND CAUSE OF ACTION
(Negligent Infliction of Emotional Distress)
17. Each allegation in paragraphs 1 through 16, inclusive, is incorporated herein by reference.
18. Plaintiff Robert Bostwick was present at all times and personally observed his wife's fall and injuries, and as a result suffered serious emotional distress, including but not limited to suffering, anguish, fright, horror, nervousness, grief, anxiety, and worry, and thus has suffered resulting damages in amounts to be proved.
THIRD CAUSE OF ACTION
(Loss of Consortium)
19. Each allegation in paragraphs 1 through 18, inclusive, is incorporated herein by reference. 20. The injuries to plaintiff Janice Silva have proximately resulted in a diminution, because of the pain, suffering and persistent distraction of dealing with such injuries, of her ability to provide to plaintiff Robert Bostwick companionship, comfort, care, assistance, protection, affection, society, moral support, sexual relations and services, all to plaintiff Bostwick's damage in amounts to be proved.
DEMAND FOR TRIAL BY 12-PERSON JURY
Plaintiffs demand trial by 12-person jury of all fact issues in this
action.
WHEREFORE, plaintiffs pray:
1. For compensatory damages in amounts to be proved;
2. For costs of suit; and
3. For other proper relief.
DATED: April 20, 2010 BISNAR | CHASE
By:________________________________________
BRIAN
D CHASE
STEVEN R.
MEEKS
Attorneys for
Plaintiffs
(click on icons for more information)
SLS Consulting
