San Diego paying out nearly $1M to settle falling tree, cracked sidewalk injury suits

The city of San Diego agreed on Tuesday to nearly $1 million in payouts to settle two injury lawsuits, one from a woman hit by a falling tree branch in Mission Bay Park and another from a woman who tripped and fell on Beech Street downtown.

The City Council approved a $750,000 payout to Lorin Toeppe, who was walking with her boyfriend near the De Anza Cove boat launch in July 2013 when a falling tree crushed her leg, fractured her spine and lacerated her face.

The council also approved a $230,000 payout to Frances Ezella Morales, who was injured in June 2015 when she tripped over a 3-inch crack in the sidewalk on Beech Street between Fifth and Sixth avenues.

In the Toeppe case, the settlement comes five years after the incident partly because her suit was dismissed by a lower court in 2015 and then revived by a state appeals court last year.

The lower court had ruled that state law protects public agencies from lawsuits over the conditions on trails and pathways.

The Fourth District Court of Appeal, however, ruled that the city could be required to pay damages because the city’s maintenance of the Eucalyptus tree may have been a factor, noting that the 10-foot-long branch fell on Toeppe.

A physical therapist who was age 32 at the time of the incident, Toeppe underwent multiple surgeries and needs ongoing rehabilitation. She initially sought $25 million from the city.

“This is a positive outcome for our client who can now focus on her recovery,” Daniel Balaban, one of Toeppe’s attorneys, said in a news release.

Balaban, whose firm also got a $7.6 million payout in 2012 for a Mission Hills man paralyzed in 2010 when a palm tree fell on him, said on Tuesday that city officials need to take tree maintenance more seriously.

“We believe there are many more city trees that need help,” he said. “This is an important public safety issue, people need to know about this danger.”

In the Morales case, attorneys for the city argued that she didn’t take reasonable precautions to avoid the sidewalk crack, which they said had not been previously brought to the attention of city officials.

Her lawsuit, however, contends the city does not properly maintain and repair its sidewalks, subjecting city residents to potential injuries.

She sued for medical expenses, lost wages and diminished earning capacity.

The Morales payout comes 16 months after San Diego paid nearly $5 million to a bicyclist who suffered severe head injuries after being launched several feet by a damaged sidewalk in Del Cerro.

And last March, the city paid $1 million to settle a lawsuit over injuries caused by a damaged sidewalk in University Heights.

The payouts highlight the fact that sidewalks in many city neighborhoods are crumbling, partly because city officials neglected infrastructure for many years before reviving it as a high priority in 2014.

Some council members lobbied last year for a 90-day deadline to fix reported sidewalk damage, and for a policy change eliminating the responsibility of homeowners to share the cost of fixing damaged sidewalks next to their property.

Supporters say shifting all costs to the city — and away from homeowners – would simplify a confusing policy and avoid the inaction that often comes when homeowners can’t afford their portion of the repair bill.

City Attorney Mara Elliott, however, issued a memo in October saying the proposed changes might actually put the city at higher risk of large injury payouts.

Elliott wrote that such a specific requirement as the 90-day deadline would make the city vulnerable to lawsuits when it’s not met, with plaintiffs pointing out that the city violated its own policy.

She also criticized the proposal to relieve property owners of repair costs, saying it would be a windfall for their insurance companies at taxpayer expense. Other cities have done exactly the opposite in recent years, she wrote.

david.garrick@sduniontribune.com (619) 269-8906 Twitter:@UTDavidGarrick

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