Circle of blame in Morgan Hill crosswalk death

Rory Tomasello

A tangled web of lawsuits, legal claims and potential future
complaints surround the death of a bicyclist at a crosswalk in
Morgan Hill, and even the city and local water district are
involved in the dispute that doesn’t appear likely to cool down
A tangled web of lawsuits, legal claims and potential future complaints surround the death of a bicyclist at a crosswalk in Morgan Hill, and even the city and local water district are involved in the dispute that doesn’t appear likely to cool down soon.

And the woman who accidentally killed bicyclist Rory Tomasello, 22, in a traffic collision filed a motion to dismiss the criminal charges against her in Santa Clara County Superior Court.

Sandra Arlia, 66 of Morgan Hill, will appear in court for a hearing on the most recent motion Monday. Arlia is accused of vehicular manslaughter in relation to the Oct. 23, 2009 accident on West Edmundson Avenue.

When Tomasello’s parents filed a lawsuit against Arlia seeking monetary damages in February, the driver responded with a flurry of complaints saying the public agencies who built and own the crosswalk are partially responsible, and from there has spiraled a saga of blame.

Police say Arlia struck Tomasello with her Cadillac sport-utility vehicle as Tomasello was riding his bicycle through the mid-block crosswalk in front of the Centennial Recreation Center.

Tomasello, 22 of Morgan Hill, was not wearing a helmet. He was conscious at the scene of the accident, but was disoriented and transported to the hospital with redness on his neck and stomach, and complaints of pain. The Live Oak High School graduate, who friends have described as a creative and aspiring playwright, died as a result of his injuries Nov. 2, 2009.

Arlia declined to comment on the case when contacted by phone earlier this week. Her attorney, Jaime Leanos, did not return phone calls.

If she is convicted of the misdemeanor charge, she faces a maximum sentence of one year in county jail.

Meanwhile, Tom and Kathee Tomasello, Rory’s parents, filed a wrongful death lawsuit against Arlia in February.

“It’s clear there’s liability on behalf of the driver,” said the Tomasellos’ attorney Bruce Funk. “She drove through a crosswalk where it was clear there was a cyclist (crossing), and she hit him.”

He noted that as Arlia approached the crosswalk going west, another car in the adjacent westbound lane had already stopped, indicating that someone was crossing. Failing to stop at a crosswalk under such circumstances is a violation of state vehicle code, Funk said.

The complaint does not list specific monetary damages, but is seeking reimbursement for “loss of comfort, society and protection, affection, solace or moral support, services, financial support, future financial support and punitive damages.”

A list of civil complaints and responses filed in Santa Clara County Superior Court followed the Tomasellos’ lawsuit. Arlia answered by filing cross-complaints against the city of Morgan Hill and the Santa Clara Valley Water District.

Similar action by the Tomasellos may soon follow, according to Funk.

The crosswalk in which the accident took place was constructed by the city, on a publicly owned street. Plus, the crosswalk connects two segments of a paved pedestrian and bike path owned by the water district, and Arlia claims the two public agencies are partially responsible for the accident because they designed and own the crosswalk and areas entering it.

The city filed a response last month denying all responsibility, city attorney Danny Wan said. The water district has not yet filed a response, but also denies it is responsible, according to SCVWD spokesman Marty Grimes.

“We’re certainly going to defend ourselves vigorously. We don’t claim any liability at all,” Grimes said.

Plus, the city filed a cross-complaint against Arlia asking the court to place the blame for the accident on the driver and Rory Tomasello, release the city from liability and to award the city reimbursement of legal expenses to defend against Arlia’s claim.

The city’s cross-complaint, written by an attorney for the city’s insurance group, says that Arlia was the “primary cause” of the accident because she failed to yield to someone in a crosswalk.

Furthermore, the city contends Tomasello was a “contributing cause” of the accident because he illegally rode a bicycle through the crosswalk.

The city’s argument reiterates the investigation report by Morgan Hill police, who said the driver was primarily responsible, while Tomasello illegally crossed the crosswalk, which the city does not consider as part of the bike path.

Police also noted that a sign entering the crosswalk from the north side of West Edmundson Avenue states that bicyclists should dismount and walk their bicycles across the street. However, there was no similar sign on the south side of the street, where Tomasello began crossing.

Police are not aware of any previous problems at the crosswalk.

As for the water district, they say they “merely own the property” along the bike path on each side of the street, and the city maintains it, Grimes said.

“We don’t maintain the road. It’s not our road, and it’s not our crosswalk,” he said.

The Tomasellos have not yet served the city and water district with lawsuits, but they might in the near future, Funk said. They have submitted claims to both entities, and both were denied – a possible precursor to a lawsuit.

The Tomasello’s claim against the water district was denied Monday, while two claims against the city – one for wrongful death and one for injuries – were denied. Wan explained both claims were filed late, though the Tomasellos could refile the injury claim if they present a reason to file it past the deadline of six months following the incident.

Funk added the city and water district have been substituted for unnamed parties in the original lawsuit since it was filed, but have not been served. His office is still investigating whether or not the design of the crosswalk and bike path caused the accident, and Funk did not say whether or not the Tomasellos feel the two entities share responsibility.

Arlia’s attorney on the civil side of the case, Alan Hunter, declined to comment, and a copy of Arlia’s complaints could not be obtained by press time. Arlia has also filed responses to the Tomasellos’ complaint, and to the city’s complaint against her.

Kathee Tomasello could not be reached by phone before press time, but said by e-mail that her son’s death illustrates the importance of organ donation.

“(Rory) had marked down on the DMV forms that he wanted to donate (his organs in the event of his death),” Tomasello said. “We were so proud of him and it made it easier to consent to the donation. We have learned from the Donor Foundation that many people die needlessly for lack of organ donations. I want to encourage everyone to be an organ donor. I hope many people do this in honor of Rory and other organ donors.”

Funk estimated the civil complaints will go to trial within the next 12 months. He added the criminal charges against Arlia do not have any direct influence on the civil complaints.

The city and water district did not have an estimate of how much money they have spent so far defending and filing the complaints. Wan said his office as well as the city’s police and public works departments have spent “substantial staff time” on the case.

Timeline of events

– Oct. 23, 2009: Rory Tomasello was struck by Sandra Arlia, while crossing West Edmundson Avenue on a bicycle.

– Nov. 2, 2009: Tomasello was pronounced dead.

– Nov. 2009: Arlia was charged with vehicular manslaughter.

– Jan. 2010: Arlia pleaded not guilty.

– Feb. 2010: Tom and Kathee Tomasello, Rory’s parents, filed a wrongful death lawsuit against Arlia.

– May 2010: Arlia and the Tomasellos filed claims against the Santa Clara Valley Water District, partially blaming it for the accident because it owns the bike path which is connected by the crosswalk in which Tomasello was hit.

– July 2010: Arlia filed a complaint against the city of Morgan Hill, claiming the city is partially responsible for the accident because it constructed and designed the crosswalk.

– July 2010: The city denied responsibility, and filed a complaint against Arlia asking for reimbursement for legal expenses and to release the city of all liability.

– July 2010: The Tomasellos filed claims against the city, which the city denied.

– July 13: The water district denied Arlia’s claim.

– July 22: Arlia filed a complaint in superior court against the water district.

– Aug. 2010: The water district has not yet filed a response to Arlia, but denies all responsibility for the accident.

– Aug. 16: Arlia is scheduled to appear in South County Courthouse for a motion to dismiss the criminal case against her.

Leave your comments