Case details

Bus driver not to blame for pedestrian’s injuries, defense claimed





Result type

Not present

eft arm, left hand, left hip
On the evening of April 14, 2012, plaintiff Virginia De Los Santos, 59, a part-time telemarketer on disability, attempted to board a San Diego Metropolitan Transit System bus that had stopped at the corner of 5th Avenue and Upas Street, in San Diego. When De Los Santos was allegedly 10 feet from the bus’s front loading doors, the bus began to pull away. De Los Santos then pursued the bus and hit a side window with her right hand while leaning against it in an effort to get the driver, David Klein, to stop. The momentum of the bus allegedly caused De Los Santos to fall over. After hitting the ground, De Los Santos was run over by the bus’s rear, double tires. She sustained to her left arm, left hand and left buttock. At the time of the accident, De Los Santos was severely intoxicated with a 0.22 blood alcohol level and under the influence of marijuana. De Los Santos sued Klein and the San Diego Metropolitan Transit System. De Los Santos alleged that Klein was negligent in the operation of the bus and that the San Diego Metropolitan Transit System was vicariously liable for Klein’s actions. The San Diego Transit Corp. was initially named as a defendant, but was dismissed prior to trial. In addition, the company name was amended from “San Diego Metropolitan Transit Service” to the correct name of “San Diego Metropolitan Transit System.” Plaintiff’s counsel contended that the Transit System and its related entities breached common carrier standards by failing to allow De Los Santos to safely board the bus. Counsel also contended that Klein was negligent for failing to wait for De Los Santos and allow her to board safely. The plaintiff’s bus operation expert opined that Klein should not have continued forward until De Los Santos had boarded or cleared the side of the bus. Klein testified that he was unaware of De Los Santos until after the accident had occurred. Defense counsel argued that De Los Santos was not a passenger on the bus and that common carrier standards were, therefore, not applicable. Thus, counsel denied there was any negligence on Klein’s part as the driver and argued that De Los Santos lost her balance and fell in the roadway due to her intoxication. The defense’s bus operation expert testified that Klein followed industry standards and had no reason to believe De Los Santos was a passenger. He also opined that De Los Santos was grossly negligent in pursuing and contacting the side of the moving bus. The defense’s human factors and illumination expert testified that De Los Santos was outside the bus’s mirror field and not visible to Klein due to factors that included the bus stop’s placement within “a valley of darkness.”, De Los Santos fell and was run over by the bus’s rear, double tires. She was subsequently taken by ambulance to Scripps Mercy Hospital, in San Diego, and hospitalized for two weeks. De Los Santos was diagnosed with multiple fractures of her left, non-dominant elbow and hand. She ultimately underwent a series of surgeries, which included open reduction and internal fixation as well as subsequent hardware removal surgeries, in November 2012 and March 2013. De Los Santos was also diagnosed with a large hematoma on her left buttock, which required an aspiration procedure. De Los Santos claimed that due to her , she suffers a loss of use and function to her left arm and hand. She was left with a substantial scar on her left buttock and she developed permanent ulnar nerve damage to her left arm, which resulted in the clubbing of her left hand. She claimed that as a result, she continues to treat with physical therapy, but that she was unable to return to work as a telemarketer due to her inability to type. Thus, De Los Santos sought recovery of between $1.7 million and $2 million in total damages, including $130,000 in reimbursed medical expenses. Defense counsel contended that De Los Santos was determined to be totally disabled prior to the accident due to a number of pre-existing conditions, including diabetes, fibromyalgia, hypertension, and rheumatoid arthritis. Counsel contended that as a result, De Los Santos only worked minimal hours as a part-time telemarketer, prior to the accident, to ensure that her earnings allowed for her qualifications to receive social security insurance and disability benefits.
Superior Court of San Diego County, San Diego, CA

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