`
`AVANTE
`
`SUPERIOR COURT OF CALIFORNIA
`
`COUNTY OF SAN FRANCISCO
`
`Document Scanning Lead Sheet
`May-11-2012 10:17 am
`
`Case Number: CGC-11-508777
`
`Filing Date: May-11-2012 10:17
`
`DECLARATION OF
`
`Filed by: ROSSALY DELAVEGA
`
`Juke Box: 001
`
`Image: 03611559
`
`WENDY L. TYLER VS. CITY AND COUNTY OF SAN FRANCISCO MUNICIPAL et
`al
`
`001003611559
`
`Instructions:
`Please place this sheet on top of the document to be scanned.
`
`
`
`Oscar R. Roesler, Esq. (SBN 124964)
`LAW OFFICES OF ARNOLD LAUB, APC
`807 Montgomery Street
`San Francisco, CA 94133
`Tel: 415-362-0101
`Fax:415-296-8841
`Attorneys forPlaintiff,
`
`WENDY TYLER
`
`WENDY TYLER,
`
`Plaintiff,
`
`V5.
`
`CITY AND COUNTY OF SAN FRANCISCO
`MUNICIPAL RAILWAYS, CITY AND
`COUNTY OF SAN FRANCISCO, TEODORO
`A. BRIONES, DOES 1 to 50, Inclusive,
`
`Defendants.
`
`
`
`%
`0
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`ee?
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`Oy,
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`is
`
`CASE NO.: CGC-11-508777
`
`DECLARATION OF OSCARR.
`ROESLER,IN OPPOSITION TO
`DEFENDANT TEODORO BRIONES’
`MOTION FOR SUMMARY
`JUDGMENT /SUMMARY
`ADJUDICATION OF ISSUES
`
`5/25/12
`DATE:
`9:30am
`TIME:
`PLACE: Dept 302
`
`SUPERIOR COURT- STATE OF CALIFORNIA
`
`COUNTY OF SAN FRANCISCO - UNLIMITED CIVIL JURISDICTION
`
`
`
`
`
`Nee!Sone!NemSmee!SomSeeeee!Se”“seas”Some”Same!Some”“Some!
`
`
`
`
`
`
`
`
`
`Iam an attorney licensed to practice law in the State of California with The Law
`
`Offices of Arnold Laub, counsel of record for the Plaintiff Wendy Tyler.
`
`I am informed, and
`
`believe the following to be true based on my personal knowledge. If called, I could and would
`
`testify as follows.
`
`1. That a true and accurate copy of excerpts of Wendy Tyler’s deposition excerpts are attached
`
`hereto as Exhibit “A" and incorporated herein bythis reference.
`
`2. Thatatrue and accurate copy of Officer Robert Bonnet’s deposition excerpts are attached
`
`28
`
`DECLARATION OF OSCAR R. ROESLER
`
`
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`~aNA>iveKo—
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`OooF
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`22
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`23
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`24
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`28
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`hereto as Exhibit “B" and incorporated herein by this reference.
`
`3. That a true and accurate copy of Wendy Tyler’s medical bills are attached hereto as
`
`Exhibit”C.”
`
`4. That a true and accurate copy of excerpts of Krista Ochoa’s deposition excerpts are attached
`
`hereto as Exhibit “D" and incorporated herein by this reference.
`
`5. That a true and accurate copy of Teodoro Briones’ declaration is attached hereto as Exhibit “E”
`
`6. That a true and accurate copy of Dave Casteel’s declaration is attached hereto as Exhibit “F"
`
`and incorporated herein by this reference.
`
`7. That a true and accurate copy of Thomas Black’s declaration is attached hereto as Exhibit “G"
`
`and incorporated herein by this reference.
`
`8. That a true and accurate copy of excerpts from San Francisco Muni Railways Rules and
`
`Instruction Handbookare attached hereto as Exhibit ”H” and incorporated herein by this
`
`reference. This was provided by the defense in response to a document demand..
`
`I declare under penalty of perjury, under the lawsof the State of California, that the
`
`foregoing is true and correct. If called as a witness I could and would competentlytestify to the
`
`facts stated herein.
`
`
`
`DECLARATION OF OSCAR R. ROESLER
`
`2
`
`
`
`Case No. CGC-11-508777, Superior Court of California, County of San Francisco
`Tyler v. City and County of San Francisco,etal.
`
`PROOF OF SERVICE
`
`I am a citizen of the United States, over 18 years of age, and not a party to the within entitled
`action; | am employed by the Law Offices of Arnold Laub, APC at 807 MontgomeryStreet, San
`Francisco, California, 94133. On the date set forth below, | caused to be served in the manner
`indicated below, by placing a true copyin a sealed envelope(s), addressedasset forth below, the
`attached document(s):
`
`PLAINTIFF’S SEPARATE STATEMENTOF UNDISPUTED FACTS AND ADDITIONAL
`
`
`
`OF ADDITIONAL FACTS; PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY
`JADGMENTOR IN THE ALTERNATIVE SUMMARY ADJUDICATION OFISSUES;
`DECLARATION OF OSCAR R. ROESLER, IN OPPOSITION TO DEFENDAN TEODORO
`BRIONES’ MOTION FOR SUMARY JUDGMENT/SUMMARY ADJUDICATION OF
`ISSUES
`
`by placing the envelope(s) in the outgoing mail receptacle of the office above, which
`in the normal course of business will be deposited in a U.S. Postal Box at San
`Francisco, California, with postage fully prepaid, the next day as placed for
`processing.
`
`by facsimile to the facsimile number(s) shown below.
`
`xX
`
`by causing the document to be hand-delivered during this business day.
`
`by overnightdelivery.
`
`Address(es):
`
`Karen E. Kirby, Esq.
`Fox Plaza
`1390 Market Street, 6" Floor
`San Francisco, CA 94102
`T: 415-554-3391
`F: 415-554-3837
`
`1 declare under penalty ofperjury under the lawsof the State of California that the foregoing
`is true and correct, except as to matters stated
`Ormatjon and belief, and as to those matters,1
`believe it to be true.
`
` DATED: May11, 2012
`
`John Mersereau
`
`20
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`2]
`
`22
`
`23
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`24
`
`25
`
`
`
`Meet
`
`oF
`
`Legal Tabs Go. 1-800-322 3022
`
`Recycled eS Stock # R-EXA-10-B
`
`
`
`mWwWBRfF
`
`
`
`F 10
`
`41
`/ 12
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`, 13
`114
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`P15
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`1 16
`a7
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`22
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`123
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`24
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`25
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`WENL
`
`L. TYLER - December 1,
`
`. :11
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`IN AND FOR THE COUNTY OF SAN FRANCISCO
`
`UNLIMITED JURISDICTION
`
`WENDY L. TYLER,
`
`Plaintiff,
`
`No. CGC-11-508777
`
`CITY AND COUNTY OF SAN FRANCISCO
`
`MUNICIPAL RAILWAYS, CITY AND COUNTY
`
`OF SAN FRANCISCO, TEODORO A.
`
`BRIONES and DOES 1
`
`to 50,
`
`inclusive,
`
`CERTIFIED COPY
`
`Defendants.
`
`415-392-0650 Fax 415-392-3897
`
`DEPOSITION OF WENDY L. TYLER
`
`THURSDAY, DECEMBER 1, 2011
`
`Reported By:
`
`MARK W. BANTA, CSR #6034
`Tooker & Antz
`
`Court Reporting & Video Services
`350 Sansome Street, Suite 700
`
`San Francisco, California 94104
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
`
`A,
`
`oO.
`
`Not really.
`
`What about before the accident? Any other kind
`
`of activities,
`
`like crew or tennis, bowling, anything
`
`like that?
`
`No.
`
`Do you have any children?
`
`No.
`
`Have you ever been married?
`
`No.
`
` WEN ¢ L. TYLER - December 1, 2011
`The Westfield Shopping Center.
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 3927-0650
`
`Okay.
`
`So I want to talk about
`
`the accident.
`
`And let me ask you first,
`
`the accident happened, you
`
`already told me, March 4th of 2010. What
`
`time
`
`approximately did it happen?
`
`A.
`
`Q.
`
`9:45.
`
`And where were you coming from at the time of
`
`the accident?
`
`A.
`
`My house.
`
`The house on --
`
`54 Farallones.
`
`Where were you going?
`
`I was going to the movies.
`
`It was the midnight
`
`showing of Alice in Wonderland, and I was headed downtown
`
`to my friend's apartment before we went to see the movie.
`
`Q.
`
`Okay. And so where was the movie playing?
`
`
`
`WEY Y L. TYLER - December 1,
`
`‘011
`
`Q.
`
`Ayeliks. That's kind of a cute name. But it
`
`has to have five letters according to my granddaughter,
`
`the sibling, so no idea why, but...
`
`So what
`
`time were you planning to meet Ayeliks?
`
`I was just trying to get there early for the
`
`Did you already have tickets to the movie?
`
`No.
`
`So what
`
`time did you leave your house?
`
`I'm not sure.
`
`Probably like 9:40.
`
`And had you taken this route before, you know,
`
`to take the M and then the BART downtown?
`
`A.
`
`QO.
`
`Yes.
`
`So how long would it take you to do the whole
`
`thing,
`
`for you to leave your house and then end up at
`
`Ayeliks' house?
`
`I could,
`
`like, seven
`A. Well, it would probably take me,
`minutes to get from my house to tihfe BART, and that's
`
`leaving time. And then from BART to Powell is like 12
`
`minutes.
`
`So that's 19 minutes. And then to get from
`
`Powell BART station to Ayeliks' house, it's like 10
`
`minutes.
`
`So 29 minutes.
`
`Q.
`
`So from your house, could you walk to the Balboa
`
`Muni station?
`
`A.
`
`Yeah,
`
`TOOKER & ANTZ4 COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
`
`WEN
`
`L. TYLER - December 1,
`
`y11
`
`Q.
`
`A.
`
`And how far is that walk?
`
`It's about like three long blocks,
`
`'cause you
`
`have two really long blocks and then the overpass.
`
`Qo.
`
`So did you have a plan to take the M or to waik?
`
`would just walk to the Balboa station?
`
`I planned to take the M.
`
`So did you know what
`
`time the M was going to
`
`Either one? Like if you didn't see a street car you
`
`Can you see your house in the picture?
`
`No.
`
`If it wasn't there when you arrived, what were
`
`you going to do?
`
`A. Wait at the island.
`
`QO.
`
`A.
`
`And which island would that be?
`
`There's only one going outbound. That's
`
`San Jose and Farallones.
`
`MS. KIRBY:
`
`So I'm going to show you a picture.
`
`We'll mark this.
`
`(Exhibit B marked.)
`
`MS. KIRBY:
`
`Q.
`
`I'm going to show you the one
`
`that I marked here.
`
`Do you recognize that?
`
`Yes.
`
`So what is this a picture of?
`
`The intersection at San Jose and Farallones.
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
`
`WEN ’ L. TYLER - December 1,
`
`J11
`
`Q.
`
`SO in this picture, you said that your house is
`
`that are -- actually in the photograph we can see the
`
`fronts of all the houses along that side of the street,
`
`correct?
`
`A.
`
`Q.
`
`Yes.
`
`Okay.
`
`So when you were leaving your house, did
`
`you stay on that side of the street?
`
`A.
`
`Oo.
`
`I don't remember.
`
`Now, when you got to the intersection, what
`
`happened next?
`
`A. What I remember is being right here and seeing
`
`the train approaching and slowing down (indicating).
`
`So
`
`I ran across the street to get to the island.
`
`Q.
`
`Why don't you put a circle where you were when
`
`you -- is this the last thing that you remember before
`
`the accident or the first thing you remember about it
`
`on the same side as the pink house and the green house
`
`Where this --
`
`Or...
`
`A. What do you mean?
`
`Q.
`
`When you say "What
`
`I remember is being here and
`
`seeing the train slowing down," is that the first time
`
`you saw the train?
`
`A.
`
`Yes.
`
`Okay.
`
`So --
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
`
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`25
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`WEN
`L. TYLER - December 1,
`Jil
`
` part of the street did you run across?
` A.
`Right here (drawing).
` Q.
` that's closest to the bottom of the photograph that shows
`
`So you just drew an arrow in the crosswalk
`
`
`
`The one on San Jose Avenue that is across --
`
`You never were in that crosswalk?
`
`No.
`
`the direction of your travel?
`Is that right?
`
`Yes.
`A.
`
`
`
`Q.
`And were you ever in the crosswalk across the
` the far crosswalk that's closer to where
`that is,
`
`street,
` the Muni little signals are?
` This one (indicating) or this one (indicating) ?
`
`
` No.
`
`
`
`
`
`Where were you on Farallones when you crossed
`
`
`Farallones?
`
` A,
`That's what
`I don't remember.
`
`
`Q.
`And where were you when you started to run?
`
`
`I'm not sure if I was running already, but I ran
`A.
`
` from here to here (indicating).
` Q.
`So you're not sure if you were running --
`
`
`A.
`I'm not sure if I ran right here (indicating),
`
`and then right here (indicating).
`
` I know that I ran right here (indicating).
`
`
`
`
`Q.
`Okay.
`So you indicated that you're not sure if
`
`
`
`
`
`
`
`I don't remember. But
`
`
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`42
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`18
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`21
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`22
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`23
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`25
`
`A.
`
`Yes.
`
`the crosswalk on Farralones and San Jose Avenue across
`
`Yes.
`
`Yes.
`
`Yes.
`
`So was there anyone standing on the island when
`
`WEN,
`L. TYLER ~ December 1, _J11
`
` that the track goes?
`
`
` Q.
`
` Right?
`So the only thing that you really
`
`
`
`remember is being at that corner that is on the bottom of
`
`
`
`
`the street from the pink house that's on the corner,
`
`right?
` A.
`
`
`So you're not on the corner by the pink house
`Q.
`
`
`but you're on the corner where you've drawn the circle?
`
`
` And that's the only thing that you remember?
`
`
`
`And when you started to run, how far away from
`you was the train?
` A. I don't really know. I know it was slowing down
`
`
`
`to the intersection.
`
`
`Q.
`
`you arrived at the corner?
`
` I don't know.
`
`Were you able to see the island?
`
`
`Yes.
`
`
`
`
`And when you started -- when you were running,
`
`
`can you characterize how you were running? Would you
`
`cali it a jog?
`A sprint? Fast walking?
`How would you
`
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`44
`
`
`
`WEND*
`
`“1. TYLER ~ December 1, 2
`
`1
`
`take a break and that's fine.
`
`A.
`
`QO.
`
`Okay.
`
`Okay.
`
`So where was the train the last time you
`
`Saw the train before the incident occurred? Like where
`
`in the street is it?
`
`What do you consider like the last time?
`
`Well, before you --
`
`Like before it hit me?
`
`I'm asking those questions. And if it gets hard for you
`to answer or difficult,
`just tell me that you want to.
`
`-”
`
`Right before it hit you,
`
`the last time you have
`
`knowledge of where the train is, where is it when it hit
`
`you?
`
`MR. ROESLER: Are you talking about just
`
`milliseconds before she was struck?
`
`Is that what you are
`
`asking?
`
`MS. KIRBY:
`
`Q. Or even the moment that you're
`
`struck, where are you and where is the train when you're
`
`struck?
`
`MR. ROHSLER:
`
`Just don't guess, please.
`
`THE WITNESS: Yeah,
`
`I don't remember.
`
`MS. KIRBY:
`
`@Q. Okay.
`
`So then what's the next
`
`thing that you remember after just running across the
`
`street?
`
`A.
`
`What do you mean,
`
`the next thing I
`
`remember?
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
`
`WEND.
`
`ai. TYLER - December 1,
`
`<
`
`.1
`
`Okay.
`
`Being struck.
`
`Okay. What part of your body was struck?
`
`A.
`
`I felt the bike rack hit me first, but it really
`
`happened fast. And my whole body,
`
`like this whole side
`
`of me was struck (indicating). And then I was under the
`
`train.
`
`Q.
`
`A.
`
`And then what happened next?
`
`I was dragged. And I was screaming. But
`
`I felt
`
`my body like grating under the train, and I really
`
`couldn't breathe, but
`
`I was just screaming,
`
`like hoping
`
`hoped somebody outside might hear me screaming to,
`
`like,
`
`get that train to stop or something.
`
`Q.
`
`And then when the train stopped, what happened
`
`then?
`
`A.
`
`I was yelling at the driver to back the train up
`
`because I was just in pure shock and I wanted the train
`
`off of me.
`
`Q.
`
`And what did he say, if anything,
`
`to you?
`
`I don't remember.
`
`And did the train -- did he move the train off
`
`Did anyone come and speak to you after the train
`
`somebody -- it didn't seem like it was stopping, and I
`
`No.
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415) 392-0650
`
`
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`WENWY L. TYLER - December 1, 2011
`
`Anything else, anyone else talk to you in.
`OQ,
`addition to the driver?
`
`MR. ROESLER: She's only asking about what you
`
`remember.
`
`MS. KIRBY:
`
`0. Yeah,
`
`just what you remember.
`
`A,
`
`Yeah.
`
`Right at the scene, right when it first happens
`Q.
`and you're yelling at the driver to let you -- you know,
`to move the train and he's yelling at you.
`Then did
`anyone else say anything to you?
`
`|
`
`like, peering under, but
`I saw a lot of people,
`A.
`I don't remember -- if anybody said anything I don't
`remember what
`they said, so...
`
`And then how long do you think you waited for
`Q.
`some help,
`like the ambulance or police or somebody to
`show up?
`Do you have any idea?
`
`A.
`forever.
`
`I don't have any idea because it feels like
`
`And then what's the next
`Q.
`after that, after the train --
`
`thing you remember
`
`A.
`
`Q.
`
`I think --
`
`-~ being on you?
`
`-- the paramedics came. And I think they
`A,
`realized that they needed,
`like,
`the fire department to
`jack up the train.
`
`TOOKER & ANTZ COURT REPORTING & VIDEO SERVICES
`(415)
`2090-nKEA
`
`30
`
`
`
`To see all the details that are visible on the
`
`Page 1 of |
`
`ones Street, San Francisco, CA - Googie Maps
`
`screen, use the “Print” link next to the map.
`
`
`
`maps.google.com/maps?hl=enétab=wl
`
`12/1/2011
`
`
`
`Lagal Tabs Co. 1-800-322.3022
`
`Recycled & Stock # R-EXA-10-B
`
`
`
`ROBERT BONNET
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
`
`WENDY TYLER,
`
`Plaintiff,
`
`VS.
`
`Case No.: CGC-11-508777
`
`CITY AND COUNTY OF SAN FRANCISCO
`MUNICIPAL RATLWAYS, CITY AND COUNTY
`OF SAN FRANCISCO, TEODORO A.
`BRIONES, and DOES 1 TO 50,
`Inclusive,
`
`TAMARA L. BLAKELY, CSR No. 5806
`
`Defendants.
`
`DEPOSITION OF:
`
`ROBERT BONNET
`
`Thursday, May 3, 2012
`
`2:31 p.m.
`
`- 3:43 p.m.
`
`VOLUME 1
`
`PAGES 1 - 42
`
`Taken At:
`
`807 Montgomery Street
`
`San Francisco, California
`
`94133
`
`Reported by:
`
`
`
`HG LITIGATION SERVICES
`HGLITIGATION.COM
`
`
`
`ROBERT BONNET
`
`Page 11
`
`believe that's the Muni inspector.
`
`Q.
`
`Do you recall approximately how much time you spent
`
`with the Muni
`
`inspector talking to him?
`
`A.
`
`Considerable amount of time. We discussed some of the
`
`statements that were given and the position of the train,
`
`the
`
`location of evidence.
`
`So I -- he was there for a long time, as
`
`was I.
`
`So I did -- previously indicated two hours, but it could
`
`have been three hours that we were there. And then I left with
`
`him, making arrangements for the train to be returned and taken
`
`medical treatment that precluded me from speaking with her.
`
`She was taken directly in
`recovered from her position of rest.
`the ambulance and tothe hospital. And after that, it was
`
`out of service.
`
`Q.
`
`Was this the first time you ever met with Inspector
`
`Henley at any accident scene other than -- besides this one?
`
`A.
`
`I believe so.
`
`I don't recall having any other
`
`accidents with him.
`
`I didn't recognize the name.
`
`Q.
`
`So as you sit here today right now, you recall first
`
`talking to the operator of the LRV and the witness?
`
`Yes.
`
`Any other witnesses that you recall?
`
`No.
`
`I don't believe there were any other witnesses.
`
`Did you have an opportunity at that time to talk to
`
`A.
`
`Q A
`
`.
`
`Q
`
`Wendy Tyler?
`A.
`I did not.
`
`She was transported immediately after being|
`
`HG LITIGATION SERVICES
`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`Page 14
`
`much attempted to determine the approximate position of the
`
`pedestrian at the time, based on the statements and the movement
`
`of the train.
`
`So I spent time outside analyzing the
`
`intersection.
`
`QO.
`
`And then after that, you went back and spoke with
`
`the -- with the operator again.
`
`A.
`
`Q.
`
`Yes.
`
`I'll have a copy of the traffic collision report marked [|
`
`as Exhibit A.
`
`Right.
`
`Officer Bonnet, I'll hand you a copy -- well, Exhibit
`
`A, a copy of the traffic collision report.
`
`I believe that's the
`
`one that you prepared, but
`
`I would like you to look at it and
`
`see if that accurately reflects your traffic collision report
`
`that you prepared.
`
`A.
`
`Q.
`
`Yes. This is the report that I prepared. Yes.
`
`Go ahead and look at all the pages,
`
`just to make sure
`
`that it is complete.
`
`A.
`
`Let's see.
`
`I see. There's an additional page in here
`
`which I don't have in my copy,
`
`I believe. Let's see. There's a
`
`supplemental page there portion also. And let's see.
`
`I
`
`prepared that, and I believe that was after receiving a phone
`
`call from the parents of the victim, party one in this
`
`collision.
`
`I prepared a short summary.
`
`They wanted an
`
`additional statement placed into the record.
`
`Q.
`
`HG LITIGATION SERVICES
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`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`Page 17
`
`Ali right.
`
`Roadway surface?
`
`A.
`
`Yes.
`
`I checked dry.
`
`It wasn't raining, and the
`
`conditions were dry at the time.
`
`Q.
`
`And then roadway conditions, you marked no unusual
`
`conditions?
`
`A.
`
`No unusual conditions of the ones that were listed
`
`there.
`
`They have several categories, if there's road
`
`appear that there were any unusual conditions.
`
`Q.
`
`The next column you have traffic control devices, and
`
`which one did you mark?
`
`A.
`
`Q.
`
`I checked no controls present.
`
`Okay. And then you have the type of collision beneath
`
`A.
`
`Yes.
`
`Type of collision,
`
`in this case,
`
`there's no
`
`vehicle involved.
`
`It was a pedestrian and a -- basically a
`
`train or an LRV.
`
`So I just checked the "other" box, and then
`
`you put
`
`in some short words that would hopefuily indicate that,
`
`streetcar and a, slash, pedestrian.
`
`QO.
`
`Okay. Beneath that, you have motor vehicle -- you have
`
`a box motor vehicle involved with, and you checked which box?
`
`A.
`
`Q.
`
`On that one, pedestrian.
`
`And then beneath that, you have another one,
`
`construction or something unusual on the roadway. But it didn't
`
`I checked crossing in crosswalk at an
`
`pedestrian's actions.
`
`A.
`
`Yes.
`
`HG LITIGATION SERVICES
`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`intersection.
`
`QO.
`
`And then let's go to the next one. Special
`
`information. What did you -- what did you note there?
`
`A.
`
`I checked cell phone not in use.
`
`So for both parties,
`
`IT had no indication there was a -- somebody was talking on a
`
`cell phone.
`
`So I checked that was not
`
`the case.
`
`Q.
`
`Then you have other associated factors, Did you mark
`
`those at all?
`
`A. Well,
`
`I just basically checked none apparent. There
`
`was no -- none of the other categories appeared to fit, and the
`
`Vehicle Code section,
`
`I didn't find any fault with the LRV as
`
`far as any Vehicle Code violation as,
`
`for example, if he was
`
`speeding. But -- and then for the pedestrian, of course, I'd
`
`but there were no -- no passengers to be picked up and none to
`
`already indicated a Vehicle Code violation and pretty much after
`
`that it's judgment.
`
`So I could have put inattention, but
`
`I just
`
`let -- let it go as none apparent. Basically there was a
`
`responsibility under the Vehicle Code, and I felt that that
`
`wasn't met by the pedestrian.
`
`So -- but beyond that,
`
`I checked
`
`none apparent.
`
`QO.
`
`And you said you didn't -- you didn't note anything
`
`with regards to excessive speed.
`
`How -- how did you make that
`
`determination?
`
`A.
`
`Based on the driver's statement pretty much.
`
`He
`
`indicated to me that he had pulled into this debarking station,
`
`HG LITIGATION SERVICES
`HGLITIGATION. COM
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`
`
`ROBERT BONNET
`
`Page 19}
`
`let off, so he started to pick up speed from about ten miles an
`
`hour I believe he indicated.
`
`So he estimated he was going ten
`
`to 15 as he pulled into the intersection.
`
`So -- I felt that was
`
`consistent, pretty much, with my experience,
`
`that it takes quite
`
`some time to bring an LRV or a railed vehicle to a complete
`
`stop. And so I felt that the -- the vehicle is -- is
`
`a substantially heavy vehicle, of which at the time,
`
`I probably
`
`discussed it with the inspector. But
`
`I didn't make any
`
`notations about it. But
`
`from my experience, it's in the area of
`
`forty thousand pounds, so it takes a considerable amount of time
`
`If it was
`
`to brake that to a complete stop.
`
`So I felt that the speed was
`
`probably correct.
`
`Q.
`
`Okay.
`
`The "other" box has move -- movement preceding
`
`collision.
`
`You -- what did you check there?
`
`A.
`
`Let's see.
`
`Oh, movement preceding collision. Okay.
`
`Let's see. Well,
`
`for -- let's see.
`
`For party one,
`
`I checked
`
`the "other" box. And actually,
`
`the general practice is that for
`
`a pedestrian, you don't even check movement preceding the --
`
`apparently the State of California is pretty much interested in
`
`what the vehicles were doing, and most of those categories cover
`
`the vehicles. But it's been past practice and my sergeant that
`
`I trained under, who was trained under the Northwestern
`
`Institute for Traffic Collisions, I've run that past him, and he
`
`was okay with me checking the "other" box. And I usually
`
`indicate what the pedestrian was doing at the time.
`
`HG LITIGATION SERVICES
`HGLITIGATION. COM
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`
`
`ROBERT BONNET
`
`walking in a crosswalk, I'd put walking.
`
`In this case,
`
`I put
`
`Page 20
`
`running, and I just put an X, and hopefully I put something that
`
`any impairment that they might have. And since I wasn't able to
`
`indicated crosswalk there. Let's see. Cry -- yeah.
`
`I put an X
`
`and then indicated somebody was running in a crosswalk. Yes.
`
`Q.
`
`And then for number two in the same -- in the same
`
`movement preceding collision section, what did you mark for her?
`
`A.
`
`Qo.
`
`I marked the proceeding straight, basically.
`
`And what did you mean by that?
`
`A. Well,
`
`in this case, it was an LRV,
`
`so it's restricted
`
`to its tracks that are in the ground.
`
`So it's either stopped or
`
`slowing or proceeding straight. He's not going to be turning,
`
`specifically.
`
`Even if it was a curved track, he'd still be
`
`proceeding straight. He's not going to make any sharp turns.
`
`Q.
`
`Okay. And then I believe the final box beneath that is
`
`sobriety, drug, physical. And what did you check there?
`
`A.
`
`For party two I checked had not been drinking.
`
`I had
`
`no indication that the driver was under the influence of
`
`anything.
`
`He was clear and understood the nature of the
`
`accident. And I had no indications of any impairment about him,
`
`so I checked had not been drinking.
`
`Q.
`
`A.
`
`Okay. What about for party one?
`
`On that one,
`
`for the pedestrian,
`
`I checked impairment
`
`not known. Usually if you're not able to examine them and look
`
`at them and talk to them, you're not going to get any clues of
`
`HG LITIGATION SERVICES
`HGLITIGATION .COM
`
`
`
`ROBERT BONNET
`
`Page 23
`
`was running was in the intersection or in the crosswalk. And in
`
`the end, after examining the scene and reviewing the two
`
`statements,
`
`I pretty much concluded that the pedestrian was,
`
`if
`
`:
`
`not
`
`in the intersection, close to the intersection --
`
`You mean crosswalk or you mean intersection?
`Q.
`I concluded f
`I'm sorry. My mistake.
`A.
`In the crosswalk.
`that if they weren't completely in the crosswalk,
`they were
`
`close to the crosswalk, based on those statements of the witness
`
`and operator two,
`
`the LRV driver.
`
`I ended up believing that she
`
`Q.
`
`But everything you have in your report so far reveals,
`
`according to your investigation,
`
`that she was in the crosswalk,
`
`as far as what you've marked down.
`
`MS. KIRBY: Objection. Misstates his testimony.
`
`MR. ROESLER:
`
`Q. Well, we've just gone through your
`
`report, and I think twice you indicated that she was in the
`
`crosswalk.
`
`A.
`
`Yes.
`
`I placed her in the crosswalk as far as her
`
`direction of travel.
`
`If we look at the intersection and we
`
`figure there's three hundred and sixty degrees to a circle, her
`
`general direction was crossing as I have the arrow showing
`
`her -- her movement.
`
`So she was crossing the intersection.
`
`There was a question of whether she was crossing at an angle or
`
`not. And I wasn't able to really make that determination, and
`
`the statements of the witnesses weren't able to pinpoint that.
`
`But that was a possibility. But
`
`HG LITIGATION SERVICES
`
`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`Page 24
`
`was crossing pretty close to the crosswalk,
`
`if not in the
`
`crosswalk.
`
`So I put her in the crosswalk.
`
`Q.
`
`When you -- just so I'm clear, you spoke with the
`
`operator first before the witness,
`
`the first time?
`
`A.
`
`Q.
`
`Yes.
`
`And then the second time you spoke to them, did you
`
`officer again, because I don't know how he came to his
`
`speak with him again before you spoke to the witness?
`
`A.
`
`I don't recall the sequence on the second time.
`
`I'm
`
`not sure whether I spoke to the witness first or the operator.
`Q.
`When you spoke with the operator the first time, do you |
`
`recall whether or not the witness was within earshot of your
`
`conversation with the operator?
`
`A.
`
`No,
`
`I don't recall. But
`
`I don't believe I would have
`
`allowed that.
`
`I like to interview them separately so I just get
`
`their statement.
`
`If they're listening,
`
`that doesn't really
`
`accomplish a lot.
`
`Q.
`
`So your practice is to make sure in your mind that you
`
`get their statement without somebody else that you're going to
`
`interview listen -- listening to your conversation to see what
`
`the other witness had to say.
`
`A.
`
`Yes.
`
`I had -- I had an occasion where I assisted an
`
`officer and several cars were involved and the witnesses and
`
`everything else, and he gathered everybody on one corner and
`
`asked them what happened. And so I -- I never helped that
`
`HG LITIGATION SERVICES
`
`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`curb to curb.
`
`Page 30
`
`Below that would be -- on the right-hand
`
`Beneath that you have some additional notes, if you can f
`Q.
`please read those for me.
`|
`
`QO.
`
`All right.
`
`Now, you have a -- on the left-hand side,
`
`you have a P hyphen one.
`
`Is that correct?
`
`A.
`
`Q.
`
`Let's see.
`
`I mean on the right-hand side.
`
`I apologize.
`
`I see a P
`
`hyphen one circled.
`
`A.
`
`Let's see.
`
`Is that my -- right.
`
`The P-1 circled.
`
`Yes. That would be -- I put a little dark circle in front of
`
`the train pretty much dead center in the crosswalk, and that
`
`dark little circle is either a streetlight that's out or,
`
`in
`
`this case, it's the pedestrian, where the impact occurred. And
`
`so that's why I put that arrow there indicating circle with P-1,
`
`meaning that's party one on the front of the page, Wendy Tyler.
`
`Q.
`
`Okay. All right.
`
`Now, beneath that you have another
`
`notation,
`
`42 feet, on the right-hand side?
`
`A.
`
`Let's see. Yes. That would be -- she had made it out
`
`42 feet south from the north curb of San Jose Avenue, and that
`
`was her -- her approximate position when she was struck.
`
`Q.
`
`So just so I understand clearly, what you measured is
`
`basically from the curb of Farallones and San Jose Avenue,
`
`she
`
`traveled 42 feet before she was struck.
`
`A.
`
`Yes. That's correct.
`
`A.
`
`Let's see.
`
`HG LITIGATION SERVICES
`HGLITIGATION.COM
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`
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`ROBERT BONNET
`
`Page 36
`
`after the LRV was removed?
`
`Is that when you locked fer the --
`
`for the signs of the braking?
`
`A.
`
`No. We pretty much looked while it was in its rest
`
`position and looked for those marks going back into the
`
`intersection almost completely, because I wanted to see if I
`
`could determine where the brakes actually locked up. And [I
`
`didn't have that much luck locating any scratch marks that would
`
`indicate the brakes were on before the intersection or even in
`
`the middle of the intersection.
`
`So I wasn't able to determine
`
`that from those expected scratch marks.
`Q.
`Okay. Let's turn to the next page, please. That would f
`be page six of six, narrative slash supplement. Let's look at
`:
`
`statements.
`
`Go ahead and begin reading there, please.
`
`A.
`
`Okay.
`
`Statements: Party one not able to be
`
`interviewed due to medical treatment
`
`in the ER,
`
`comma, CAT scan,
`
`comma, O slash R, period. Party two stated at the scene I was
`
`coming inbound on San Jose Avenue in the 2700 biock just past a
`
`stop,
`
`just prior to the intersection of Farallones.
`
`I was going
`
`about ten to 15 miles per hour.
`
`Then with nobody at the stop,
`
`I
`
`picked up speed.
`
`Then as I was going through the intersection,
`
`about in the middle,
`
`somebody came running real fast from my
`
`left -- from my left right in front of my LRV.
`
`I felt a bump,
`
`so I braked to a stop. And when I got out and looked,
`
`they were
`
`Just stop for a moment just so I understand something.
`
`caught under the front end.
`
`Q.
`
`HG LITIGATION SERVICES
`
`HGLITIGATION.COM
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`
`
`ROBERT BONNET
`
`so you noted that he indicated that he saw somebody
`
`coming real fast from left right in front of my LRV. Correct?
`
`Page 37
`
`A.
`
`Yes.
`
`And then he felt a bump.
`
`Yes.
`
`And then he braked.
`
`Yes.
`
`All right. Let's go on with Witness Ochoa, please.
`
`Okay. Witness Ochoa related at the scene I was seated
`
`on the driver's side of the train facing forward. As the driver
`
`started to go through the intersection,
`
`I could see a flash of
`
`something running real fast across in the path of the train.
`
`Then I felt a bump and when the operator stopped and got off,
`
`I
`
`heard a woman screaming.
`
`QO.
`
`Okay. And these statements are the ones that you
`
`gathered based on your approximately 40 minutes of interviewing,
`
`first of all,
`
`the operator?
`
`A.
`
`Q.
`
`Ochoa?
`
`A.
`
`Q.
`
`Yes.
`
`And then another 30 minutes or so interviewing Witness
`
`Yes.
`
`And as you're taking these statements, you're writing
`
`I made some notations, but pretty much I just
`
`your notes on your three-by-six -- three-by-five or three-by-six
`
`cards?
`
`A.
`
`RG LITIGATION SERVICES
`
`HGLITIGATION.COM
`
`
`
`Legal Tabs Co. 1-800-322-3022
`
`Recycled gd Stock # R-EXA-10-B
`
`
`
`TRAFFIC COLLISION REPORT
`
`CHP 555 CARS Page1 (Rev 1-03) OPI 081 nr -
`ViP}
`.
`5PECIAL RPED
`ary
`WUCICIAL DISTRICT
`MUNWLRVIPED
`SAN FRANCISCO
`SF SUPERIOR COURT
`
`
`
`
`
`ELEoq|COUNTY =|100211315REPORTING DISTRICT seat
`
`
`rT SAN FRANCISCO
`4BSF
`.
`
`COLLISION OCCURRED ON:
`SAN JOSE AVE,
`MILEPOSTINFORMATION:
`
`DAY
`
`mo
`4rlg
`DAY OF WEEK
`
`YEARITIME (2400)
`2144
`TOW AWAY
`
`OFFICERED.
`821
`
`.
`
` STATE OF CALIFORNIA
`
`LOCATION
`
`
`THURSDAY eaves [X|No
`
`PHOTOGRAPHS BY:
`SLI4 OFF,
`FISCHER#230
`3116E OF.FOR
`
`AT INTERSECTION WITH:
`
`Tier. FARALLONES STREET
`
`
`
`HOME PHONE
`
`
`
`(415)515-5091
`
`Dill OF TRAVEL] ON STREET OR HIGHWAY
`
`
`SAN JOSE AVE(ACRO
`
`ie
`ve
`MAKE (MODEL /COLOR
`.
`LRY STREETCR SIL/RED
`
`LICENSE NUMBER
`NONE
`
`BTATE
`
`:
`
`‘
`
`
`
`
`Ps econMIDOLE.LAST)"| teoporoAGUILABRIONES
`a ae
`OWNER'S NAME
`BAME AB DRIVER
`
`
`PEDES-|STREET ADDREBS CITY & CNTY OF SF’DEPT OF MUNEMTA
`
`SAMEAGDRIVER
`OWNER'SADDRESS
`c610LAKEVIEWAVE.
`
`CITY/STATE/ZIP
`SANFRANCISCO
`94112
`TNSPOSITIONOFVEHICLEONORDERSOF: by [_pever [xJone
`CA
`
`
`Blee
`recesses
`BLK
`BRN
`15-4
`“a“s3
`PRIORMECHANICALDEFECTS
`[3Noneape
`[__|REFERTO NARRATIVE
`i
`
`
`(415)218-9301
`DESCRIBEVEHICLEDAMAGE
`SHADEINDAMAGEDAREA
`Pr (4159337-2273
`BUSINESS PHONE
`VEHICLE IDENTFIGATION NUMBER:
`HOME PHONE
`
`
`POLICY NUMBER
`[lye [Xmone [jn
`wevitw
`INSURANCE CARRIER
`
`
`
`
`CITYECTY OF S.F/MUNI ”
`
`[|_jMoo } on ROLL-OVER,
`
`
`
`
`
`
`
`oR OF TRAVEL| ON STREET OR HIGHWAY
`25
`SAN JOSE AVE.
`
`SAFETY EQUIP,
`VEH. TEAR
`DRUVER'S LICENSE NUMBER
`
`
`‘
`.
`
`#1 SO.
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