Case details

Scooter rider: Defendants failed to remove train tracks





Result type

Not present

neurological, reflex sympathetic
On June 29, 2006, at approximately 6 a.m., plaintiff Kimberly Menard, 33, a registered nurse, was riding her scooter on Blanding Avenue in Alameda when the wheels of her scooter made contact with abandoned railroad tracks situated within the roadway. As part of a project to build a shopping center along Blanding Avenue, Alameda Bridgeside Shopping Ctr. LLC entered into an agreement with the city of Alameda in 2003, by which Alameda Bridgeside agreed to remove a set of abandoned railroad tracks situated within Blanding Avenue. Alameda Bridgeside subsequently hired Midstate Construction Corp. to construct the shopping center and, as part of the project, remove the tracks. However, when Menard was riding along Blanding Avenue in 2006, she struck abandoned railroad tracks, causing her to lose control of her scooter and fall on her right shoulder. Menard sued Alameda Bridgeside, the city of Alameda, Midstate Construction, and the property’s realtors, Regency Centers Corp. and Regency Realty Group Inc. She also sued the believed maintainers of the railroad tracks and roadway, Union Pacific Railroad Comp., Wackeen Holdings LLC, Crea-Bridgeside LLC, Alameda Belt Line, Burlington Northern Santa Fe Foundation, BNSF Railway Co., Foothill Partners LLC, and Foothill Partners Comp. LLC. Menard’s counsel contended that Midstate Construction removed some, but not all, of the tracks and that as such, the condition of Blanding Avenue, as it existed on June 29, 2006, was unreasonably dangerous. Counsel asserted that the abandoned railroad tracks should have been completely removed and that absent the removal, the defendants should have provided adequate warning of the tracks’ existence on the roadway. Menard’s counsel further contended that the layout of the roadway on June 29, 2006, was such that it affirmatively channeled Menard directly toward the tracks. Alameda Bridgeside, Regency, Midstate and the city of Alameda contended that the condition of the roadway was appropriate and safe, and that Menard failed to keep a proper lookout toward the roadway in front of her. Union Pacific, Wackeen Holdings, Crea-Bridgeside, Alameda Belt Line, Burlington, BNSF and Foothill contended that even if the roadway was dangerous, the maintenance of the roadway, including the railroad tracks, at the time of Menard’s fall was not their responsibility., Menard was seen at the hospital on the date of the accident and was ultimately discharged with a right shoulder contusion. During the next several months, Menard claimed she began to develop a series of unusual symptoms, including changes in skin temperature, changes in skin color, excessive sweating on the right side of her body, and persistent burning and radiating pain. She claimed she was eventually diagnosed with complex regional pain syndrome, also known as reflex sympathetic dystrophy or causalgia, a chronic pain condition. She subsequently treated with a variety of physicians, including physiatrists, orthopedists, anesthesiologists and psychiatrists. Despite treatment, Menard claimed she still deals with symptoms of CRPS. She alleged that due to her CRPS, she would be unable to ever return to work as a registered nurse. Thus, Menard sought recovery of damages for her past and future medical expenses, past and future loss of earnings, and past and future pain and suffering. Menard’s husband, Steve Powell, brought a derivative claim, seeking recovery of damages for his loss of consortium. Defense counsel acknowledged that Menard had symptoms consistent with CRPS, but disputed the nature and extent of her alleged injury, as well as her contention that she was completely unable to work. Counsel contended that Menard’s claimed disabilities were due, at least in part, to her failure to treat with physicians specializing in CRPS.
Superior Court of Alameda County, Alameda, CA

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