At approximately 4 a.m. on Oct. 3, 2008, plaintiff James Clincy, 63, a bus driver, arrived for work at the Golden Gate Bridge, Highway & Transportation District bus terminal. He subsequently parked his car in the main employee parking lot and proceeded to walk toward the terminal, approximately 150 yards away. However, while he was approaching the main gate to get to the terminal, Clincy tripped and fell in an area where construction had occurred. Approximately one month before the accident, the Transportation District and Sonoma County Builders Inc. entered into a contract to provide construction services for a project under the Homeland Security Act. As a result, there had been considerable construction going on in and around the employee parking lot during the time of Clincy’s accident. Thus, Clincy claimed he tripped and fell over a metal plate that had been placed on the ground and suffered to his right shoulder and bicep, and left knee and foot. Clincy sued Sonoma County Builders Inc. He alleged that the defendant failed to properly maintain the construction area and keep proper warnings in the area, creating a dangerous condition. Clincy noted that he arrived at 4 a.m. on the date of loss, which was generally much earlier than Sonoma construction workers, or any other contractors or subcontractors, arrived at the area. He also claimed he would generally finish his shift after the construction workers had already finished their work for the day. Clincy claimed that just inside the main gate, there were metal plates over construction trenches and that he needed to walk over them in order to get through the employee parking lot gate. The metal plates were 4×8 feet in diameter and rose above the ground approximately 1.5 to 2 inches in height over the pavement. Thus, Clincy tripped on the lip of the metal plate as he attempted to walk over it and fell forward onto the plate’s steel surface. Plaintiff’s counsel contended that the defendant’s contract with the Transportation District required Sonoma to trench the perimeter of the bus terminal in order to place underground electrical conduits. Counsel argued that as a result, Sonoma was required to place steel plates over the areas that were trenched and generally make the area safe for pedestrians, including placing tar patches along the edges of the steel plates in order to prevent a tripping hazard. Plaintiff’s counsel contended that the tar patch would have created a gradual slope between the pavement and top of the steel plate, but that Sonoma failed to place the tar patch along the edges of the steel plates and caused Clincy’s accident. Furthermore, plaintiff’s counsel argued that the tar patch is not only required by the contract entered into between Sonoma and the Transportation District, but it is also a generally accepted practice in the construction industry and may be required by the applicable building codes. Sonoma claimed that while construction was occurring during the two weeks before the accident, there were warning signs, cones and tape blocking off the entry way. It alleged that those items were installed every afternoon, when its construction workers left the construction area. Sonoma claimed that in addition to the foregoing protective measures, it also created an alternate route through which Clincy and other employees should have gone to enter and exit the area. However, it claimed that on the day of the accident, the protective measures were removed by employees of the Transportation District. Sonoma claimed that the steel plates were laid across trenches every evening before its workers departed, but acknowledged that no tar patch feathering was used to create a smooth transition between the ground and the top of the trench plates. However, it claimed that the Transportation District stated that all trench plates needed to be feathered, but orally agreed it was not required in areas where no traffic was expected. Thus, Sonoma argued that the Transportation District approved leaving the area in a condition where tar patches were not used because no employees were meant to be in that area in the first place. In addition, it contended that the main gate where Clincy fell was either locked or barricaded at the time of the accident. Defense counsel further argued that there was evidence that bus drivers from the Transportation District were still using the area as a shortcut, but that there was no evidence to show that the Transportation District’s contract administrators or Sonoma knew that the employees were using the area as a shortcut. In response, Clincy claimed that he never knew about the alternate route, and that no warning signs, cones, locks, barricades, or tape blocking off the entranceway ever existed. Furthermore, he claimed that because one of the Transportation District’s female employees was robbed one week before his accident while attempting to use the alternate back gate, which was located in a remote, dark part of the parking lot, the Transportation District decided to re-open the employee parking lot gate to allow their employees to use it. Clincy’s counsel contended that this fact was documented in e-mails from the Transportation District and in Sonoma’s daily construction logs., After being sent home on the date of the accident, Clincy was taken by his wife to Kaiser Permanente in Richmond. He was subsequently diagnosed with a right, dominant shoulder strain, as well as a strain, a contusion and abrasions to his left knee. He was also diagnosed with a torn right bicep tendon. Clincy continued to treat his at Kaiser. Clincy claimed that despite treatment, he continued to have problems with his left foot and pain, which was ultimately diagnosed as traumatic partial tears of the medial talonavicular joint capsule and posterior tibial tendon. He alleged that this condition ultimately progressed over the period of one year to a complete dislocation. The plaintiff’s physician believed that the severity of this problem was hidden by peripheral neuropathy in Clincy’s feet, which was due to longstanding Type 2 diabetes. Thus, Clincy claimed he continued to walk on a badly injured foot for over one year without recognizing the problem, simply because it did not hurt. Clincy claimed it has been increasingly difficult to walk and that he still walks with a limp. He alleged that as a result, he needs a cane, wheelchair or walker in order to ambulate. Clincy ultimately underwent two fusion surgeries on his left foot in December 2009, which requires him to wear custom-made orthopedic shoes. He also never returned to work and ultimately retired. Plaintiff’s counsel contended that Clincy’s stipulated total medical bills for the two foot surgeries paid by Medicare and Blue Shield was $62,126.08, while his stipulated medical bills paid by workers’ compensation was $7,500. Clincy also claimed $32,000 in damages for his past lost earnings. The defense’s orthopedic expert contended that Clincy’s left foot injury was the result of longstanding diabetes, and not the subject accident. The expert testified that because Clincy was overweight, had a poor diet, smoked and had a poor vascular system, not enough nutrition was provided to the foot and it eventually gave away.