On April 12, 2011, at approximately 2 p.m., plaintiff Michael McGraw, a retired 61 year old, was riding his Harley Davidson motorcycle in the new temporary number two lane on southbound Mission Boulevard (also known as Route 238) in Hayward.res to his ribs, and left ankle and shoulder. McGraw sued the in As he approached the intersection with Monticello Street, he struck two consecutive, large potholes, causing his motorcycle to crash to the ground, dislodging him in the process. McGraw subsequently sustained fractudependent contractor hired to perform an extensive remodeling of Mission Boulevard, Top Grade Construction Inc.; and the believe maintainers of the roadway, the city of Hayward, the county of Alameda, and the State of California, Department of Transportation. McGraw alleged the defendants were negligent in the repair and maintenance of the roadway, creating a dangerous condition of public property. The county of Alameda and Caltrans were ultimately dismissed from the case. Thus, the matter proceeded to trial against Top Grade Construction on general negligence and premises liability causes of action, and against the city of Hayward on the dangerous condition of public property cause of action. The city of Hayward filed a cross-complaint against Top Grade Construction, alleging contractual indemnity. The city claimed that it did not create the alleged dangerous condition and that it had hired Top Grade Construction to remodel the entire road, including performing temporary pothole patching and more permanent road repaving. Thus, it claimed that it was entitled to indemnity under their construction contract. Top Grade Construction claimed McGraw was liable for the accident by following too close to the car in front of him, causing McGraw to not be able see the large potholes in the road. It also claimed it could not be held liable as it did not own, possess or control the premises where the accident occurred. In addition, Top Grade Construction claimed that the large potholes that had caused McGraw to fall pre-existed Top Grade Construction’s commencement of the work and that the city controlled the temporary pothole patching task and permanent road repaving., McGraw sustained multiple rib fractures, a left lung contusion, a left ankle fracture and a comminute fracture of the mid to distal left clavicle. He was subsequently transported by ambulance to a nearby emergency hospital, where he underwent an open reduction and internal fixation on his ankle with permanent hardware insertion. McGraw also underwent five surgeries on his left clavicle, including open reduction and internal fixation, and a rib harvest from his rib to graft to his left clavicle due to nonunion. The plaintiff’s treating orthopedic surgery expert, Dr. Julie Bishop, testified about the McGraw’s first two clavicle surgeries and the plaintiff’s other treating orthopedic surgery expert, Dr. Emilie Cheung, testified about McGraw’s subsequent clavicle surgeries, including the rib graft placement on McGraw’s left clavicle area. McGraw claimed that despite the rib graft, the left clavicle bone still presents a 3-centimeter gap.