More questions than answers in the 99 Ranch Market Crash in Westwood
Three people were killed last week when an elderly driver mistook the gas pedal for the brake, sped up uncontrollably, then plowed through the front glass doors of the 99 Ranch Market at the corner of Westwood and Rochester. The dashcam footage from a passing car is difficult to watch.
In addition to the three fatalities, several people were injured. The crash raises so many questions. How did the driver mistake the gas pedal for the brake? Was the 92-year-old driver too old to be operating a motor vehicle? Did she suffer a medical emergency? At this point in time, there are more questions than answers.
Vehicle Code Section 12806
Everyone’s mind probably went to the same place when reading the headlines. Was this driver too old to be driving?
Believe it or not, there is no such thing in California as being “too old to drive.” The DMV requires drivers to undergo additional testing once they turn 70. Drivers must pass a written test and retake it every 5 years. Vehicle Code Section 12806 states that the DMV may refuse to renew a driver’s license if the driver
“has a disorder characterized by lapses of consciousness or who has experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses, or who has any physical or mental disability, disease, or disorder which could affect the safe operation of a motor vehicle unless the department has medical information which indicates the person may safely operate a motor vehicle. In making its determination, the department may rely on any relevant information available to the department.”
Sudden Medical Emergency
It is unclear whether the driver responsible for the fatal Westwood crash suffered a sudden medical emergency. The Sudden Medical Emergency is an affirmative defense to a negligence cause of action. CACI 452 lists the elements of the defense:
That there was a sudden and unexpected emergency situation in
which someone was in actual or apparent danger of immediate
injury;
That Defendant did not cause the emergency; and
Defendant acted as a reasonably careful
person would have acted in similar circumstances, even if it
appears later that a different course of action would have been
safer.
Foreseeability is a key issue when the Sudden Medical Emergency defense is asserted. Did the defendant take medication prescribed to treat the condition in the past? Had he or she experienced episodes similar to what he or she experienced at the time of the current incident? The main question is, was the medical emergency truly sudden and unanticipated, or was it foreseeable?
Insurance Issues
Based on the information we have to date, it is reasonable to conclude that the size of the financial loss from this crash exceeds the driver’s available insurance coverage. Those injured may sue the 99 Ranch Market under a premises liability theory. The argument would be that it was foreseeable that a speeding vehicle in a high traffic location could lose control and crash into the building at the corner lot, and the property should have installed some type of mechanism to prevent vehicle intrusion.
Once again, foreseeability comes into play here. Defendants might argue that without prior incidents of vehicle encroachments, it was not foreseeable that a speeding car would plow through the front door of the supermarket. Furthermore, the Los Angeles Department of Transportation has guidelines for when corner lots can install concrete bollards to stop errant vehicles to protect pedestrians. Those guidelines state that rigid bollards should not be used at crosswalk locations unless there is a documented history of vehicle encroachment.
Conclusion
At this point in time, there are more questions than answers related to the tragedy that occurred last week at the 99 Ranch Market in Westwood. Sadly, an elderly driver mistaking the gas pedal for the brake is not unheard of. Readers may recall how, in July 2003, 86-year-old George Weller mistook the gas pedal for the brake, lost control of his car, and crashed into the Santa Monica Farmer’s Market. He killed 10 people and injured 63.
Most personal injury lawyers have handled a case where an elderly driver mistook the gas for the brake. I know I have.
The Vehicle Code does not have a “too old to drive” requirement per se, but drivers must undergo additional testing every 5 years after the age of 70. When cases like this present themselves, the sad reality is that there is often not enough insurance to adequately compensate all those who were effected. We will continue to monitor this case for significant developments, and we wish those who were injured a swift recovery.
If you or someone you know were injured, whether by a driver who mistook the gas pedal for the brake, or by some other form of negligent conduct in Westwood, Beverly Hills, Los Angeles, or Culver City, my office is ready to assist, 24/6.
[An alternative version of this article appears in the February 11th Daily Journal.]
