Fresno, California Fellow Richard C. Watters of Miles, Sears & Eanni orchestrated a $2 million settlement agreement for two clients, a victim in a horrific bicycle accident and his wife, during a second attempt to mediate the case on July 23, 2009.

A doctor and his wife were out enjoying a bicycle ride on property owned by the City of Fresno known as “The Sugar Pine Trail” when they encountered an on-going construction project which involved heavy excavation and installation of underground pipe lines. The general contractor and subcontractors had left open a blockout in the underground center of one of the tunnels that had been dug which included rebar, wood, and earth. The blockout had been left open for the previous sixteen months. In the tunnel plans there was included a provision that temporary chain link fencing should be put up to secure the work area and prevent unauthorized entry by non-workers. No such fencing was present on the premises.

The doctor and his wife entered the tunnel which had four standard lights inside - two on one wall and two on the other - on their bicycles, and when the doctor discovered the open blockout, he skid the rear tire of his bicycle, collided with the blockout, and was thrown. The wife, who was traveling directly behind him, watched the gruesome event unfold. The doctor suffered a severe and complex fracture to his left elbow, which included comminuted fractures to the ulna, radius, and radial head. Screws and plating were required during a first surgery to secure the fractured areas, and during a second surgery, it was necessary for doctors to remove the screws and plating and insert a prosthetic radial head due to non-union of the radial head. A third surgery was then required to insert screws and plating to correct a non-union of the ulna. There was also a non-displaced fracture to the doctor’s right elbow that did not require surgery. The doctor developed arthritis in the capitellum and was left with limitations in pronation, supination, and grip strength, along with constant pain.

The doctor and his wife contended that the City of Fresno was liable for their injuries as a landowner maintaining a dangerous condition on public property under Government Code Section 835. The plaintiffs also contended that State Center Community College District and Clovis Unified School District had “control” of the tunnel, as defined under Government Code Section 835, by reason of their involvement in the construction. The plaintiffs maintained that American Paving Company and Emmett’s Excavation, Inc., two subcontractors on the project, were responsible for installing the concrete tunnel floor, the drain, and the blockout, and were responsible for creating and maintaining a dangerous blockout. As such, the subcontractors had a duty to take the necessary steps to protect members of the public from the hazard and/or warn against it. The plaintiffs also contended that Harris Construction Company, Inc., as general contractor, was liable to any member of the public injured and not employed in the construction.

Of the $2 million settlement, $1.8 million was designated for the doctor, and $200,000 was designated for the doctor’s wife.