Case details

Tourists claimed uncareful bus driver struck low hanging wire




Mediated Settlement

Result type

Not present

brain, brain injury, cervical fracture, disfigurement, ear, emotional distress, face, facial laceration, fracture, hand, hearing, mental, neck, nose, partial loss of, psychological, scar, sensory, speech, subdural hematoma
On July 19, 2013, plaintiff Rosa Kinzl and her husband, plaintiff Johann Kinzl, both tourists from Austria, and plaintiff Edward Farrel and his wife, plaintiff Molly Farrel, both tourists from Texas, were passengers on the open, second deck of a double-decker tour bus. While Manuel Guardado was operating the tour bus for Open Top Sightseeing San Francisco, LLC, known as Big Bus, on 12th Avenue in San Francisco, he collided with a low-hanging telephone wire. The Kinzls and the Farrels were struck by the wire. The Kinzls each sustained to their face, Mr. Farrel sustained to his ear and neck, and Ms. Farrel sustained to her hand. The Kinzls and the Farrels sued Guardado and his employer, Open Top Sightseeing San Francisco, LLC. Pacific Bell Telephone Co., which was doing business as AT&T California, and AT&T Corp. were later added as defendants to the case. AT&T Corp. was ultimately dismissed from the case. Plaintiffs’ counsel contended that the leading edge of the bus was 13 feet, 1 inch high, and that Public Utilities Commission General Order 95 required a minimum clearance of 18 feet for a cable above a public thoroughfare, meaning that the wire had to be at least 18 feet above the surface of 12th Avenue at all times. However, plaintiffs’ counsel contended that based on scuff marks found on the upper windshield of the bus at approximately 13 feet, 1 inch high, the subject wire was hanging lower than 13 feet above street level. Counsel asserted that the Public Utilities Commission regulation required Pacific Bell to periodically inspect its wires, but it failed to do that at the subject location. Plaintiffs’ counsel noted that there was no tour guide on the bus and that it was the driver’s responsibility to do everything aboard the bus, including driving and watching two video screens in the driver’s area. Thus, counsel asserted that Guardado’s attention was clearly divided between the screens and what was ahead of him, including traffic, pedestrians and wires. A neighbor near the scene alleged that about 30 minutes before the incident, he saw a red, double decker tour bus “skim” a wire at the location of the incident. He also alleged that, for the 10 years preceding the incident, he had not seen a low hanging wire in the area of the incident. The neighbor claimed that he first noticed buses using 12th Avenue about a month before the incident and that his safety concern was the speed of the buses on a residential street. He alleged that as a result, he called Open Top Sightseeing to complain, but that a woman at the company told him not to call and to, instead, email his concerns. He claimed that although he decided not to email the company at that time, he later decided to email Open Top Sightseeing on the day of the incident to complain about the bus noise and the low hanging wire. Plaintiffs’ counsel noted that Open Top Sightseeing received the neighbor’s email, and produced it during discovery. However, counsel contended that the company had no rapid system of reacting to such a complaint, so nothing was done before the incident, even though each bus could have easily have been contacted over the radio by someone at dispatch. Plaintiffs’ counsel asserted that California Civil Jury Instructions 902 required that a common carrier, like Open Top Sightseeing, must use the highest care and the vigilance of a very cautious person in operating its buses, but that Open Top Sightseeing failed to do that. The driver, Guardado, claimed that he did not see the wire and that his first notice of contact was the “horrible impact” that made the bus rock like an earthquake. He also claimed that he would not be able to miss seeing a wire hanging more than 2 feet lower than the 18 foot minimum. However, plaintiffs’ counsel asserted that the subject wire that Guardado hit was actually 5 feet lower than the minimum. Open Top Sightseeing’s counsel contended that Open Top Sightseeing did not have notice of the low hanging wire and that, in any event, the bus hit the wire at only 15 mph. Pacific Bell’s counsel testified that, in collaboration with the California Public Utilities Commission, Pacific Bell instituted an overhead wire inspection program in 2012 and that with the Public Utilities Commission’s approval, Pacific Bell was only required to conduct “patrol inspections” of overhead wires in urban environments, such as San Francisco and where the incident occurred, once every 20 years due to the low fire hazard. Counsel noted that, as defined by the Public Utilities Commission, a “patrol inspection” is a simple visual inspection of lines, designed to identify obvious structural problems and hazards. Patrol inspections may be carried out during the course of other company business and are normally done in a vehicle. Pacific Bell’s counsel further contended that all of Pacific Bell’s employees are trained and required to report any obvious hazardous conditions while in the field. Counsel also produced documentation that allegedly showed that in the two years prior to the accident, Pacific Bell employees had been present on the 500 block of 12th Avenue in San Francisco on seven different occasions and had not reported any deviations with its aerial facilities. Thus, counsel asserted that there was no evidence that the subject wire was owned by Pacific Bell; that Pacific Bell lacked actual and/or constructive notice of a low hanging wire; or that the hazard existed long enough for any reasonable inspection procedure to discover it and warn or correct the hazard. In addition, Pacific Bell’s counsel noted that Open Top Sightseeing admitted that its buses regularly used 12th Avenue as a detour and that approximately 22 buses had used 12th Avenue on the day of the incident, driving by in approximately 10 to 15 minute intervals, before the incident occurred. Thus, counsel asserted that documents produced by Pacific Bell during litigation demonstrated that the low hanging wire could not have existed for more than 30 minutes prior to the accident., Ms. Kinzl was the most seriously injured of the four plaintiffs. The wire slapped her in the face, knocking her head against the seat and essentially “amputating” her nose. She also suffered a subdural hematoma and a cervical fracture at the C2 level that was not displaced. Ms. Kinzl was rushed to Zuckerberg San Francisco General Hospital and Trauma Center, in San Francisco, where a CT scan of her face revealed complex, comminuted and displaced bilateral fractures of her nasal and anterior ethmoidal bones and nasal septum. She also sustained extensive facial lacerations of her internal nasal mucosa and her right nasal airway totaling 7 centimeters in length. She subsequently underwent surgery to immediately repair and replace her nose and close the lacerations before she returned to Germany. The plastic surgeons were able to salvage her nose and put it back in place. However, an air ambulance returned Ms. Kinzl to a local hospital in Austria about a week later and was readmitted for additional treatment. After several months, one could hardly see the scarring on her face and there were no obvious visible signs that her nose had been lacerated so badly. However, Ms. Kinzl allegedly had some occlusion of her right nostril with some numbness on the right side of her face and a diminished sense of smell. Mr. Kinzl, who was sitting next to his wife on the bus, was struck by the wire on his left cheek, leaving a small laceration and a bruise. He was subsequently treated in the emergency room and released the same day. However, he claimed he suffered emotional distress as a result of witnessing the trauma to his wife. The Farrels were seated across the aisle from the Kinzls when they were struck. Mr. Farrel sustained a 1.5 centimeter laceration to his left ear lobe and had neck complaints. He was subsequently seen in an emergency room, where he received sutures to close the laceration prior to being discharged. His laceration healed without difficulty, but he claimed he had some diminished hearing out of the left ear for about three months. Ms. Farrel sustained trauma to the dorsum of her left hand, and experienced bruising and swelling without any fractures. Thus, the plaintiffs claimed they had over $340,000 in total medical expenses and sought recovery of approximately $1.4 million in damages.
Superior Court of San Francisco County, San Francisco, CA

Recommended Experts


Get a FREE consultation for your case