On Monday, the Vanguard published the comments of Deb and Rob Westergaard relating to the their treatment by the police following an April 2016 collision where Ms. Westergaard was hit by a vehicle and seriously injured as she crossed F Street at the marked crosswalk south of Covell Boulevard.
It could have been a fatal collision between a car and a pedestrian and, if the driver had hit Deb Westergaard going any faster than the reported 29 mph, it very well may have been. The police analysis of the collision is that the pedestrian was at fault – a counter-intuitive result that has rightly angered Deb Westergaard and her husband Rob.
The initial police report, by Officer Joshua Mares, found that “Westergaard caused the collision by running out into the street without confirming it was safe to do so. This is a violation of 21950(b) CVC, had Westergaard waited until all approaching vehicles had come to a complete stop the collision would have been avoided.”
But the evidence to support that is based on a single witness traveling in the northbound direction. And that account is not corroborated by either the motorist or Ms. Westergaard’s account. That witness indicated as he approached the crosswalk that she was “quickly running east on the walking path” and “into the crosswalk without looking for oncoming traffic and that did not activate the crosswalk assist lights.”
That witness later stated “that he did not observe him (the driver) to be distracted (talking or texting on his phone).”
Officer Mares acknowledges in his report that his conclusion was “based on the independent witness statement provided by (the other motorist).”
Under the best of conditions, we know that witness accounts are problematic, as they have divided attention. And yet, Officer Mares concluded that it was the pedestrian’s fault based solely on this account – or so he seems to acknowledge.
When Ms. Westergaard complained, Sgt. Rod Rifredi re-interviewed the witnesses and ran the calculations. He came to the same conclusion, that Ms. Westergaard had “failed to ensure the roadway was safe to enter the roadway prior to doing so.”
According to Sgt. Rifredi, she failed to re-check the southbound traffic when she entered the roadway and therefore failed to notice the vehicle “was so close as to be a danger to do so.”
But that conclusion, again, seems to be based only on the observations of a single motorist, who came into the police department later in the day and had been headed in the other direction at the scene.
In addition to the counter-intuitive decision to assign blame to the pedestrian, we have a potential problem with the roadway itself. There is considerable evidence that the road configuration itself creates a dangerous situation and therefore should get a good deal of the blame for the incident.
What is concerning is that the crosswalk, which is used by children and families going to school on a daily basis, may be fundamentally unsafe. There are several problems here. First, the roadway merges from multi-lanes (three) down to a single southbound lane. That means the driver was checking his mirrors to ensure that he was clear to merge before looking forward to be able to determine if someone is crossing the street.
Once one clears the merge, the crosswalk is almost immediately upon them. Look at the photo above, if you turn your head around at the end of the merge, driving at between 29 and 35 mph, it takes 1.5 seconds to react to the crosswalk – are you going to be able to stop in time if someone is coming across? There is not much room for error there.
The police determined that the driver was traveling at approximately 29 mph – that is above the posted speed limit of 25, but below the average speed traveled at 31 with a critical speed of 33 mph.
Generally speaking, pedestrians retain the right of way, but they cannot create a dangerous situation by jumping out in front of traffic.
Sgt. Rifredi notes that the requisite vehicle code section states, “The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection. except as otherwise provided in this chapter.”
That next part is critical because the section “does not relieve a pedestrian from the duty of using due care for his or her safety” and, moreover, “no pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.”
Nevertheless, the idea that a pedestrian crossing the street who is seriously injured could be found at fault here is counter-intuitive, given that the vehicle was traveling slightly above the posted speed limit and the driver acknowledges checking his mirrors.
For Ms. Westergaard’s part, she said when “she was running east on the bike path, as she approached the crosswalk she pressed the button for the crosswalk assist lights. She said she observed (the vehicle) driving south on F Street and believed that it was going to stop. When asked if she stopped prior to entering the crosswalk she said, “Yes.” She said that as she entered the intersection (the vehicle) continued south on F Street and hit her with the driver side front bumper of the vehicle.”
Unless she ran right in front of the vehicle, it seems that it should have had time to stop unless the driver was otherwise distracted – by checking his mirrors for the merge.
The driver himself estimated that he was traveling 30-35 mph (whereas Sgt. Rifredi determined it was 29 mph) and acknowledged looking at his rear view mirror briefly. “When he directed his focus towards the front of the vehicle, (Ms. Westergaard) was running east through the crosswalk.”
Based on a single witness who came to the police counter later that day, Officer Mares determined somehow that the driver was not distracted and that Ms. Westergaard was at fault.
This is likely the point of contention for the Westergaards, even if the math analysis lines up.
The question I would have is how far the driver was from the crosswalk when he “directed his focus towards the front of the vehicle” and did the merge along with the curve in the road contribute to this collision.
The Vanguard has learned that the crosswalk has already been moved once due to safety concerns. The city has installed safety lights – Ms. Westergaard contends that she activated them prior to crossing, while the driver of the northbound vehicle indicated that she had not.
Further complicating the situation was that the motorist who struck Ms. Westergaard did not have insurance and is himself of rather modest means. The best avenue for Ms. Westergaard to proceed at this point would be to sue the city for the unsafe crosswalk – that, again, is of particular concern, given the number of children who utilize this during the course of the school day.
Meanwhile, it would behoove the city to have the appropriate commissions and experts re-evaluate the location of the crosswalk and determine whether it would be advantageous to move it further from the merge point at Covell.
—David M. Greenwald reporting