Without admitting any wrongdoing, the city has avoided a lawsuit
by agreeing to pay part of a $130,000 settlement with the family of
a 5-year-old boy struck and killed by a truck nearly two years
ago.
Without admitting any wrongdoing, the city has avoided a lawsuit by agreeing to pay part of a $130,000 settlement with the family of a 5-year-old boy struck and killed by a truck nearly two years ago.
Balbina and Jesus Mendoza-Trejo Sr. filed a claim against the city in January 2007 for the wrongful death of their 5-year-old son, Brayan Trejo – and subsequent emotional distress – and this week the city announced it had reached an “amicable resolution” with the family.
“This is such a tragic loss of life, and we are glad that a cost-economic resolution could be reached at a fairly early stage,” Mayor Al Pinheiro was quoted as saying in a March 18 press release from the city. “The settlement was reached recently to avoid the expense and emotional difficulties related to a lawsuit,” the release continued.
The Trejo family could not be reached for comment, but their attorney, Paul Caputo, said this in an e-mail Thursday: “The Trejo family is satisfied with the settlement and relieved that at least this chapter of their lives is over. They can now continue with their healing without any further litigation.”
The boy was killed in June 2006 while crossing 10th Street at the intersection with Church Street. Trejo, astride a red scooter, and his 13-year-old brother Jesus had the right of way as they headed south across 10th Street when a southbound truck turned left and struck the younger boy.
Robertina Franco, the driver, was criminally-convicted for her negligence, but she never served time in jail. Instead, she did community service, received probation and paid a $110 fine.
“Unfortunately,” reads the press release, “Ms. Franco, who should have been made to bear all of the fault and responsibility for the accident, carried only the minimum insurance coverage allowed by law,” $15,000 per person and $30,000 per accident.
For this reason, the Trejo family will receive a total settlement of $130,000, with the maximum settlement payment of $30,000 coming from Franco’s insurer, and the balance being split between the city and its insurer, the Association of Bay Area Governments. The city has a $50,000 deductible with ABAG in this situation, according to Human Resources Director LeeAnn McPhillips, who said the city has already paid $20,000 in defense costs and related expenses.
Tim Schmal, of Santa Cruz-based Burton, Volkmann & Schmal, was the city’s legal counsel during the settlement. Schmal gets the bulk of Gilroy’s claim cases that do not arise out of contract disputes, he said. This means he handles mostly personal and property injury cases that concern the city’s insurance, which is why he is one of ABAG’s approved panel counsels that the city can choose from.
“On claims covered by ABAG Plan coverage that have a likelihood for litigation or are in litigation, then an ABAG Plan approved attorney is assigned to the matter,” McPhillips wrote in an e-mail. “Only a highly specialized item in which (the city’s contracted law firm, Berliner Cohen), has specific experience or something that does not have ABAG coverage would be handled by Berliner’s office.”
Money aside, family and friends devastated by the accident are convinced Trejo would be alive if the intersection had a left-turn signal. A team of engineers hired by the Trejo’s attorneys agreed, pointing out plenty of other shortcomings at an intersection they dubbed “dangerous and defective”: too few turning lanes, inappropriate speed limit, and improper road striping, to name a few.
The intersection where Trejo died ranks 13th on the city’s list of 50 most dangerous crossroads, according to a February 2005 traffic study. Of the 23 collisions that took place at the intersection between 2000 and 2003, only one involved a pedestrian and none led to a fatality.
Each day, 20,000 cars pass the area where Trejo was killed, according to a 2006 traffic study. City Transportation Engineer Don Dey said the city is on track to add signals to the intersection this year with the project expected to be complete in 2009.
“The design plans are 95 percent complete,” Dey wrote in an e-mail. Due to some additional roadway and sidewalk improvements, the project cost has risen from about $300,000 to about $500,000, he wrote.
Intersection upgrades would have been triggered in a few years by projected traffic increases, officials say. By 2011, the city plans to build a bridge to connect the road with a planned community of 1,693 homes in southwest Gilroy.
The new signal may arrive sooner than expected, but officials are not ready to admit responsibility for Trejo’s death: The settlement includes an explicit denial by the city of Gilroy of any fault or responsibility for the accident.
“No amount of traffic engineering can prevent accidents caused by gross inattention,” said Mayor Al Pinheiro.
The city is also planning a memorial for pedestrians killed within the city, which will include a plaque bearing Brayan Trejo’s name.
“The family would like to thank the people of Gilroy and surrounding areas for their tremendous support,” wrote Caputo. “The thoughts and prayers of the community meant the world to the Trejos. It is something they will never forget.”
