Last month, the City of Gilroy paid $450,000 in a hush-hush $700,000 settlement to a 70-year-old man who sued after tripping over a patch of jagged, uplifted sidewalk on Martin Street in front of Garlic City Billiards two years ago.
Allan Sundquist of San Jose tripped while walking from Monterey Street to OD’s Kitchen on March 26, 2010, when he tripped over the sidewalk at 28 Martin St., struck his head on a tree, lost consciousness and was taken to Saint Louise Regional Hospital. Sundquist sued the City of Gilroy, Santa Clara County, the owner of the business and the owner of the building for personal injury damages. He claims to have permanent cognitive damage.
The culprit of the dangerous sidewalk, the city agreed, was the at-least 40-year-old Magnolia tree whose roots were tearing and lifting the cement. The crack has since been smoothed over with fresh concrete, but the tree is still there.
Then-owner of Garlic City Billiards, Robert Tapella – who paid the other $250,000 of the settlement, because his insurance company thought it would be cheaper than fighting – is furious at the city for not fixing the sidewalk in front of his store years ago.
“The funny thing was I had called the city, asking them to remove this tree for 17 years, and they were so stubborn the whole time. They said they didn’t have the money. They said the sidewalk problems weren’t from the tree,” Tapella said.
At one point, Tapella said he offered to cut the tree down himself, but the city threatened to fine him if he did.
“It’s their tree. They planted it, and I can’t touch it,” Tapella said, his voice rising.
Then one day in October 2010, Tapella was served with lawsuit papers “out of the blue.”
He said it was the first he heard about Sundquist tripping in front of his business. Tapella, who no longer owns the business and only leased the building, couldn’t believe that he had any responsibility, because he had been bugging the city to remove the Magnolia tree for so long.
City Engineer Albert Signorotti said that a single sidewalk repair can cost anywhere from $1,000 to $15,000 or more, but the average repair is $4,500 – just 1 percent of what the city ended up having to pay in this lawsuit.
“In 2008, when they were tearing up downtown for the beautification project, I asked the city to come down an extra 15 feet on Martin Street to take care of those Magnolia trees, and they said they didn’t have the money. Well, for $450,000, they could have repaired 15 blocks,” Tapella said.
Sundquist’s lawyer, Michael Shea, personal injury lawyer at Shea & Shea in San Jose, said that after Sundquist sued, the city sent a letter to the building owners of Garlic City Billiards, Jafar and Nasrin Kangarloo, telling them their sidewalk needed fixing.
The letter informed the Kangarloo’s of the Sidewalk Replacement program, where the city pays for part of the repairs. It also stated that the Kangarloo’s must apply for a permit to do the work, and that they need to do so as soon as possible.
The letter did not mention the impending lawsuit, and city engineer Albert Signorotti testified in court that it was the first letter the city had written to the Kangarloos.
“This was an injury waiting to happen. The city had prior knowledge of the danger but did nothing to fix the problem. Gambling with public safety is never a good bet,” Shea wrote in an email.
City Administrator Tom Haglund did not respond to calls on Monday, but wrote an email that he would not make further comment on the case until after May 7, when the city council will be briefed during closed session.
According to court documents obtained by the Dispatch, the sidewalk where Sundquist tripped was cracked and raised 1.5 inches – city code states that sidewalks raised 0.5 inch are in need of repairs – and that the city had notice of the disrepair, but did not remedy it.
Sundquist said the settlement requires he does not talk about the incident.
“I’m not trying to hide anything, I just can’t comment, legally,” he said.
The recent settlement could mean that the decades-old sidewalk controversy is beginning to crop back up.
According to California State law, property owners are responsible for maintaining the sidewalk in front of their home or business. In August 2007, at the recommendation of the city’s insurance company, city council enacted a sidewalk ordinance that attempted to publicly shift legal liability from the city to the homeowner if someone were to trip on the sidewalk in front of a residence. The ordinance was overturned six months later because of the three new council members who were against it.
“If a homeowner went out to his sidewalk with a jackhammer, then we’d expect him to be liable,” Councilman Perry Woodward said. Woodward said that although city staff would like homeowners to be liable, the fact is they created the problem – invasive city-planted trees cause 95 percent of sidewalk damage in Gilroy.
By “creating the problem,” Woodward was referring to the invasive trees, namely the shallow root Liquid Ambers famous for tearing up sidewalks, that the city planted in residential park strips in the 1970s, when they decided to become a recognized “Tree City USA.”
In 2008, the city decided to up their end of the Sidewalk Repair program, because of money obtained via federal grant, Woodward said. The result was the “80/20 program,” where the city pays about 80 percent of the repairs (50 percent of sidewalk damage and 100 percent all other related repairs, including tree and gutter services), and the homeowner pays about 20 percent – half of the sidewalk bill.
The 80/20 program is currently out of funds, Signorotti said, but will be up and running again July 1, at the start of a new fiscal year.
Total city liability for repairing all sidewalks in 2007 was $8.7 million, but many repairs have been made since then. Last week, the city began surveying the entire city again for damaged sidewalk, and plans to send letters to homeowners to inform them of sidewalk repair information, Signorotti said. He said that the city will not know how many sidewalks need repair until after they are done surveying.
Bob Mulry, a homeowner on Ousley Drive, in the northwest area of Gilroy off Mantelli Drive, said that a city employee came out to his street last week to mark sections of sidewalk with orange spray paint that needed repairs. Two areas of sidewalk were sprayed in front of Mulry’s home.
Not sure what the city “has up its sleeves,” Mulry is already angry for whatever repairs the city might ask him to do. “I won’t give the city a nickel to fix this,” Mulry said, motioning to the city-owned Liquid Amber in front of his house.
“The city didn’t do due diligence in finding correct trees to plant,” he said. “All they’d have to do is call up a nursery, and they’d tell them never to plant Liquid Ambers on streets.”
Mulry thinks the city is once again trying to avoid personal injury liability by sending out letters to homeowners.
“They can say they’re not liable, and that the homeowner is, all they want,” Mulry said. “But a jury will surely think otherwise.”
