Case in Point — Dangerous Condition of Public Property Accident near a BART station

Thousands of CCSF students and their instructors used this dangerous walkway daily, until a serious accident focused attention on it

Mark Zanobini
2014 June

On October 14, 2008, at approximately 9:30p.m., Scott Mandeville began his journey home to Daly City after teaching an evening business class at the City College of San Francisco, where he is an adjunct professor. It was a clear and cool night as Mr. Mandeville headed from City College to the Balboa Park BART station, his usual method of transportation home. Mr. Mandeville started out by walking through the Wellness Center at City College and exiting out to Howard Street. He then crossed the light at Howard Street and turned left onto Ocean Avenue. From there, he walked along Ocean Avenue towards the BART station. Once reaching the station, he walked down a flight of stairs and turned left, walking along a retaining wall towards the MUNI tracks. He then walked through an open gate and turned right, continuing down an informal walkway towards the BART station entrance.  (The term “informal walkway” is being used to refer to the area where the MUNI Green Yard meets the BART station. This area is characterized by a curved concrete wall that supports the BART station and the asphalt adjacent to the MUNI tracks. The informal walkway encompasses both the asphalt and concrete, as people routinely walk on both.)

This was Mr. Mandeville’s typical route home, which he took twice per week after his evening classes. As Mr. Mandeville was walking along the concrete informal walkway and reached about the midpoint distance, he suddenly felt his legs slip out from under him. He fell off of the concrete curb and onto the asphalt several inches below, falling hard to his right.

As the middle of his right thigh landed harshly against the edge of the concrete, Mr. Mandeville heard a crack and felt excruciating pain in his right leg. He fractured his femur just above the knee.

In inspecting the premises we found that the condition appeared hazardous.  We took multiple photos and determined that a number of hazards existed.  The elevated portion of the concrete was too narrow to be a sidewalk; it was elevated to almost 12 inches at one section; the beveled edge of the concrete wall was a hazard and it was located too close to active tracks.  A search of the Internet located numerous studies that were commissioned by both BART and CCSF indicating that this very place was considered hazardous to pedestrians. 

There was a plan for improvements at Balboa Park Station, yet no short-term improvements were put into place for over nine years. While we were unable to locate any similar accidents, the numerous studies and funding applications that we did locate were just as good, if not better.  Additionally, neither BART nor CCSF had any records of our client’s incident despite the fact that security arrived prior to Mr. Mandeville being transported to the hospital.  We argued that the lack of an incident report in this case was likely not an isolated event.

The wall was owned by BART. The ground next to it was owned by CCSF/MTA. Discovery showed that plenty of funding was available. Our expert concluded that the walkway could have been made safe for $5,000.  In fact, after the deposition of plaintiff’s expert, the City got permission from BART to add concrete to the walkway and put up a railing.

In terms of ownership and control,  we found, first informally and then through discovery thereafter, that the wall was part of the Balboa Park BART Station wall and it was located right next to a MUNI light rail yard. Both entities had control and maintenance responsibilities.

The condition was obvious. The entities’ own studies showed that they had been aware of it for over nine years.  BART had signs that actually encouraged people to use this informal walkway rather than use the proper one on the other side of the station.

The client was a professor at CCSF who made a very good witness.  He was wearing good shoes and his cell phone records showed a gap in usage until after the fall when he called his sister.

The walkway was open to the public and was used every day by many people.

The client was walking in a normal fashion, was not distracted and was able bodied.

There were no witnesses to the actual fall.  However, a search of 911 records located the person who reported the fall.  Additionally, multiple engineers from both BART and CCSF were deposed about the dangerous condition.

Plaintiff sustained a serious femur fracture requiring open reduction and internal fixation.  He fell while recuperating and fractured it again. 

Plaintiff had no health insurance because he was only a part-time professor at CCSF. His injuries and circumstances warranted pursuing the case. As a result of thorough investigation, including formal and informal discovery, we were able to establish liability against both governmental entities.  The jury determined that BART was 40 percent at fault, CCSF was 40 percent at fault and plaintiff was 20 percent at fault.  The result was a very good one for plaintiff. 

Mark Zanobini Mark Zanobini

Mark J. Zanobini is an experienced trial attorney who is the principal shareholder of the Law Office of Mark J. Zanobini, P.C.  He has successfully handled all types of catastrophic personal injury and wrongful death cases including those caused by auto accidents, product liability, dangerous premises or medical negligence.
Mr. Zanobini is a graduate of UC Berkeley and the University of San Francisco School of Law. He is on the board of directors of the San Francisco Trial Lawyers Association and is an active member of many other trial and consumer organizations

Case in Point — Dangerous Condition of Public Property Accident near a BART station
This photo shows the location of the trip-and-fall accident near a BART station.
Case in Point — Dangerous Condition of Public Property Accident near a BART station
The photos with drawing overlay was done by plaintiff’s expert to show how a simple repair would remedy the dangerous condition.
Case in Point — Dangerous Condition of Public Property Accident near a BART station
The photos show the location before and after repairs had been made to improve safety.

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