Case details

Different barrier would not have prevented fatal crash: defense





Result type

Not present

burns, death
At around 9 a.m. on June 26, 2008, plaintiffs’ decedent Victor Manuel Mercado Sr., 50, a truck driver for Waste Management, was driving a tractor-trailer in the number three lane of southbound Interstate 880, as known as Nimitz Freeway, in San Leandro, when it was struck head-on by a 1999 Toyota Corolla operated by Hiram Torres. Torres was initially driving in the far left, number one, “fast” lane of Interstate 880 when his left, rear tire failed near the Marine Boulevard overcrossing. As a result, he lost control of his vehicle and struck Mercado’s truck head-on. Mercado then lost control of the tractor-trailer, crashed through the median barrier, and entered into oncoming traffic, where his tractor was struck by two northbound vehicles. As a result, Mercado’s gas tank exploded, causing Mercado to burn to death at the scene. The decedent’s wife (Lourdes Mercado) and four adult children (Victor Emanuel Mercado, Lourdes M. Mercado, Awilda Calderon, and Mayra Delgado) sued Torres; the manufacturer of the tire that failed on Torres’ vehicle, Michelin North America Inc.; the seller of the tire, Costco Wholesale Corp.; and the maintainers of the roadway, the state of California and the State of California, Department of Transportation. Torres settled out of the case, and Michelin and Costco were ultimately dismissed. Thus, the matter continued against the state and Caltrans. A 2014 trial resulted in a unanimous defense verdict in favor of Caltrans. However, plaintiffs’ counsel moved for a new trial, and the post-trial motion was granted. Thus, the matter proceeded to a retrial, which began on Dec. 4, 2017. During the retrial, plaintiffs’ counsel argued that the subject accident location constituted a dangerous condition of public property because the median barrier did not redirect the decedent’s 18-wheeler back into the southbound lanes. Counsel contended that the subject barrier was a standard Type 50 barrier, which was placed in 1991, and that due to federal height requirements, Caltrans had a policy of adding material to the top of barriers to maintain the required height of 29 inches whenever new pavement overlay reduced the height below the minimum standard. In 2001, a pavement overlay project was conducted at the subject location, which included “capping” the barrier to maintain the minimum height. Within days of the project going to construction, the Department of Transportation sent out a state-wide memorandum discontinuing the practice of capping barriers. Plaintiffs’ counsel contended that the policy of capping barriers, which had begun in the 1970s, was stopped due to the potential for a cap to break when struck, causing pieces to fly into traffic lanes, presenting a potential hazard. Counsel also contended that there was one known injury due to a piece of cap going through a windshield. However, plaintiffs’ counsel contended that despite the known dangerous condition and decision to stop capping barriers, projects already in design or construction had the option to consult with the Department of Transportation headquarters as to how to proceed, including continuing with the ongoing project, which was what happened at the subject location. Thus, plaintiffs’ counsel argued that when the memo came out, the overlay project should have been halted and the Department of Transportation should have replaced it with a more complex and expensive rehabilitation project that installed the newer standard — Type 60 barrier — at the subject location. Caltrans’ counsel argued that the accident was caused by a vehicle failure and a negligent driver, and not due to the roadway. Counsel also contended that there was no evidence of the public being exposed to a substantial risk of injury when the subject location was used with due care in a reasonably foreseeable manner (the legal definition of dangerous condition of public property, Gov’t Code § 830(a)). Caltrans’ counsel also argued that there was no legal duty to prevent all accidents and no requirement to place median barriers to redirect tractor-trailers. Counsel further argued that there was no significant history of tractor-trailers striking the barrier; no prior, similar accidents; and no prior breeches of the barrier. Thus, Caltrans’ counsel argued that the scenario of replacing the construction project with a new one that included installing a Type 60 barrier at the subject location, as suggested by plaintiffs’ counsel, was speculative at best and would have left the pavement unrepaired for several more years. Counsel also argued that there was no evidence that the Type 60 median barrier would have redirected a tractor-trailer at the speed, angle and impact of the decedent’s truck. The Department of Transportation did begin a rehabilitation project in 2014 to replace over 20 miles of Type 50 barrier with Type 60 barriers on I-880, in Alameda County, including at the accident location, beating out other projects in a statewide competition for funding that had become available from the Department of Transportation’s headquarters. This project is in partnership with Alameda County, which will be installing toll lanes simultaneously with the placement of new barrier. In addition, lights will be placed in the new median because the traffic accident history showed that most accidents in the subject area occurred at nighttime. However, Judge Ronni MacLaren granted Caltrans’ counsel’s motion in limine regarding the new project, agreeing that evidence of the current rehabilitation was inadmissible as a subsequent remedial measure and as too remote from the 2008 accident to be relevant. The defense’s expert traffic engineer testified about how the Department of Transportation monitors its roadways to determine where locations are problematic. The expert also testified about how theTraffic Accident Surveillance and Analysis System (TASAS) database of accident history maintained by the Department of Transportation showed that the subject accident location had less than the average number of accidents when compared with similar roadways throughout the state. The defense’s accident reconstruction expert opined that even if the state had placed a median barrier that could have stopped the decedent’s truck from going through to the other side, the jackknife movement of the trailer would have crushed the cab of the truck against the barrier, which still would have resulted in a fatality., Victor Manuel Mercado Sr., 50, sustained multiple traumatic in the crash and suffered from fatal burns after his gas tank exploded. He subsequently died at the scene of the accident. He was survived by his wife, Lourdes Mercado, then a housewife in her 60s; his adult son, Victor Emanuel Mercado; and his three adult daughters, Lourdes M. Mercado, Awilda Calderon, and Mayra Delgado. Although none of the children lived at home, they claimed their family was close-knit. Thus, the decedent’s family sought recovery of wrongful death damages for the loss of Victor Manuel Mercado Sr.
Superior Court of Alameda County, Hayward, CA

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