City, Bayside Seek to Dismiss Farmers Market Lawsuits

By Ann K. Williams
Staff Writer

June 9 -- Attorneys faced off Thursday after a Superior Court judge issued a tentative ruling granting motions by the City and the Bayside District Corporation to dismiss cases charging they were responsible for the Farmers Market accident that left ten dead and more than 60 injured nearly three years ago.

Superior Court Judge Valerie L. Baker -- who is expected to issue a final ruling next week -- heard arguments from attorneys representing the defendants and 14 plaintiffs injured or killed when George Russell Weller’s Buick LeSabre tore through the crowded Downtown market at 60 miles per hour in July 2003.

“We’ve got ten dead people, 50 injured people, and the City of Santa Monica is behind the eight ball,” Plaintiffs' Attorney Michael Piuze said as the legal pyrotechnics heated up.

The plaintiffs, who are represented by Greene, Broillet and Wheeler, the firm that won the highest product liability verdict in history, are charging that the City and Bayside failed to take the necessary precautions to block vehicles from entering the crowded Farmers Market.

After a morning session that focused on the Bayside’s request for a summary judgment, Piuze came out swinging with a surprise handwritten objection he gave to the court and to City Attorneys Dana Fox and Bill Hayes just minutes before the afternoon session started.

Its purpose was to strike the “traffic control plan” that regulated traffic at the market from the record. The plan supports the city’s argument that the conditions at the market weren’t inherently dangerous, and that a traffic plan, approved by its traffic engineer Ronald K. Fuchiwaki in 1987, entitles the city to immunity.

Piuze argued that Fuchiwaki was unable to identify the traffic plan in his deposition, and couldn’t say for sure if the document was the one he’d approved. Though he later indicated he’d approved it in a subsequent declaration, Piuze argued that was “a no-no” --that he couldn’t go back and change his earlier testimony.

“Fuchiwaki has to have approved the plan in advance,” said Piuze. “It’s up to (the City) to show it. They trot out the one guy who has personal knowledge, and he goes duh… I’ve not going to belittle the guy, but he says ‘I don’t know.’”

The document was never signed, putting its approval in question, Piuze argued. “It’s a question of fact that you could drive Mr. Weller’s Buick through,” he said, arguing that it’s the kind of question that requires a jury trial.

Piuze insisted repeatedly that Judge Baker rule on his objection before going ahead with the hearing, but she refused, saying she’d rule on it before she ruled on the case, but not before holding the hearing.

City Attorney Fox countered Piuze’s argument by saying that Fuchiwaki’s statements and that of Laura Avery, the manager of the Farmers Market, had to be read in context for the true picture to emerge.

“You can’t read one document in a vacuum,” Fox told Judge Baker. “The court is wise to look at the totality.”

Avery recognized the traffic plan as the one she’d created under Fuchiwaki’s direction, and that he had approved. And they both stated they’d met and discussed the plan at the market site, and that Fuchiwaki reviewed and approved the plan.

Fox added that there was just one plan, implying that this had to be the right one because it was the only one.

Also contested was whether or not Avery’s statement that there’d never before been an accident involving “an unauthorized vehicle” entering the market was admissible evidence.

Judge Baker said it was not, because it was an assertion that wasn’t backed up by records or any other kind of proof.

It matters because the City’s argument for the safety of the site rests on Avery’s statement, Baker said.

Fox contended that Avery had been the manager of the site for more than 20 years, and had been there all day every Wednesday. Baker, however, was unmoved.

“How do you prove a negative,” Fox wanted to know.

“A number of ways, but they’re not contained in her declaration,” Baker shot back.

Fox pointed out that the plaintiffs’ argument that the site was “in a dangerous condition,” had a number of points which had to be demonstrated, among them that the property had been “used with due care.”

“Driving a Buick 30 to 60 miles per hour 400 feet through a crowd is not exercising due care,” Fox said dryly.

The afternoon session capped a day in court that began with attorneys for the plaintiffs facing off against defense attorneys for the Bayside District Corporation, the agency that runs the Downtown.

Geoffrey Wells, the plaintiff’s lead attorney, argued that the services agreement between the Bayside and the City holds the agency responsible for “maintenance and security concerns.”

The terms of the contract, he said, are “in direct contradiction” to statements made in a deposition by Bayside Executive Director Kathleen Rawson stating that “no one from the City ever sought advice, assistance or input from anyone from the Bayside.”

Wells questioned how Rawson could speak for all Bayside staff and board members and said that, in any case, her statement was irrelevant.

“So what if she (Farmers Market Manager Avery) didn’t talk to them about it?” Wells said. “So what? They have a contractual duty.

“What they’ve left out of the equation is that there’s a contract (that) sets forth rules and responsibilities between Bayside and the City of Santa Monica,” Wells said.

Phil Hayes, one of the Bayside District’s attorneys, countered that the services agreement doesn’t contradict Rawson’s statement; in fact, it supports it.

The services agreement, Hayes said, sets out general responsibilities for the Bayside that do not include responsibility of the Farmers Market.

The contract specifically only calls for Bayside’s involvement with the Farmers Market if a special event on the Third Street Promenade conflicts with the market.

Judge Baker said she had “concerns” with the statements made by Rawson and Avery.

“They are very broadly worded,” Baker said, “and because the declarants speak for others in their staff without declaring how they” know that.

Judge Baker will accept papers on the admissibility of rebuttal evidence on Tuesday, June 13 before she issues her ruling.