Case details

Road’s dangerous condition caused accident, cyclist alleged




Mediated Settlement

Result type

Not present

arm, biceps muscle, cervical, fracture, fusion, leg, neck, tear
On the morning of May 20, 2011, plaintiff Lloyd Weinstein, 63, a restaurant owner/operator, was cycling with three other cyclists on northbound Newport Coast Drive in Newport Beach. Weinstein was traveling in the right shoulder, which was about the width of a bike lane, as there was no actual bike lane at that section of the roadway near the on-ramps for State Route 73. The speed limit for vehicles on Newport Coast Drive is 60 mph, forcing cyclists to use the shoulder to avoid high-speed vehicle traffic. At approximately 8 a.m., Weinstein approached the on-ramp for northbound SR-73, where an area of asphalt extending into the gore point had been ground down the prior evening as part of a repaving project for SR-73. Weinstein claimed he didn’t notice the ground down asphalt until the last second, causing him to swerve in an attempt to avoid the ridge. As a result, his rear tire got caught and slid out from underneath him. Weinstein crashed into the pavement, allegedly causing to his left leg, left shoulder, left bicep, and neck, as well as multiple lacerations and contusions. Weinstein sued the state of California, acting by and through the Department of Transportation. He alleged that the state created a dangerous condition of public property pursuant to Government Code § 830 and that the state failed to warn of this dangerous condition. The state subsequently filed a third-party claim against the asphalt company that it contracted for the repaving project, R.J. Noble Company Inc. Pursuant to a prior contractual agreement, it was determined that R.J. Noble indemnified the state. Thus, R.J. Noble’s counsel represented the state in Weinstein’s case. Weinstein contended that the shoulder he was traveling in was the only safe path in which cyclists could ride on Newport Coast Drive, and that it was used by hundreds of cyclists every week due to the lack of a bike lane and the 60-mph vehicle traffic. He claimed that as a result, riding in the shoulder, and transitioning across the on-ramp entrance’s lanes into the gore point, was the only foreseeable manner in which cyclists could safely use the roadway, pursuant to Government Code § 830. Weinstein claimed that, as such, the ground down asphalt in the gore point was a dangerous condition of public property for cyclists using the roadway. He also claimed that no warning signs or cones were placed at or before the location of the ground down asphalt, giving him no indication of the approximately two-inch ridge in the gore point as he approached the northbound SR-73 on-ramp. Defense counsel contended that cyclists should not be riding in the gore point or on the SR-73 on-ramps, as it is illegal for cyclists to ride on freeways, and that the on-ramps were part of the freeway. Thus, counsel argued that the state did not need to anticipate that cyclists would be riding at the subject location, and did not need to provide warnings or cones for cyclists in the location where the accident occurred., Weinstein was taken from the scene of the accident by ambulance and brought to an emergency room. He suffered a fractured left femur; a grade II, left acromioclavicular joint separation and left bicep tear; an aggravation of a prior neck injury; and various lacerations and contusions to the left side of his body. The femur fracture was held in place by his prior total left hip replacement and, therefore, required no surgery. However, Weinstein had to remain non-weight-bearing for six weeks post-accident. Weinstein also claimed that because the bicep tear was not diagnosed until several months after the accident, surgical intervention was no longer an option, and both the bicep tear and AC joint separation were allowed to heal over time. Two years after the accident, Weinstein underwent a two-level cervical fusion at C5-6 and C6-7, which he claimed was a result of the aggravation of his prior neck injury. He claimed he was inactive for approximately two months after the fusion surgery, but was able to return to normal activity and weekly cycling thereafter. Thus, Weinstein claimed $62,725.32 in past medical costs, and sought recovery of additional damages for his pain and suffering. Defense counsel disputed causation for Weinstein’s aggravated neck injury. Specifically, counsel argued that Weinstein’s prior neck condition was considered a very serious injury before the accident, and that the surgery was not related to the subject incident.
Superior Court of Orange County, Santa Ana, CA

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