Defense Asks Expert About 'Near Misses' At Intersection Where Boys Were Killed — Entire Cross-Exam

Added: 2026-05-07

[00:00:00]Good morning, Mr. Dunlap.

[00:00:02]>> Good morning.

[00:00:27]So you you just said a moment ago, sir, that the changes the changes that were suggested or requested um by various people were not required.

[00:00:39]Correct.

[00:00:40]>> Correct. They are not required.

[00:00:42]>> Okay. So, and they're not required in your view because uh in your view the roadway meets the standard that's set forth in all those books, right?

[00:00:53]Well, the manuals don't have a a mandatory standard that would require them, but the engineering guidelines and principles that we apply in engineering applications wouldn't require them either because it's operating safely.

[00:01:08]>> Let me grab the um sorry, I think this is the extra one. Go ahead.

[00:01:13]>> Thank you.

[00:01:15]>> This is just so I can read what you're saying as you go.

[00:01:20]>> Might help.

[00:01:23]Uh oh. Well, now I broke it.

[00:01:27]Okay. Um, and I think you said that sometimes when people make changes, they just don't understand what those changes might be or why those might be uh important or not important. Right. from the general public. Yeah, they are generally not registered engineers with the training necessary. So engineers do the engineering and the public gets to benefit from it. So if a person was trying to cross that street um at Triumphal Canyon and had to run for their life, uh they don't understand that the situation is needing to be changed. Is that what you're saying?

[00:02:15]>> No foundation. Oh, >> so you can have any circumstance where somebody may have to run for their life, but that's not necessarily the road design and the roadways operational characteristics causing that. It could just be a care a negligent or careless driver that's not going to stop for whatever reason. They're not paying attention. We cannot engineer bad habits out of a driver's behavior. That's just you can't do that.

[00:03:03]And sitting listening to your opinions, it seemed to me that most of your opinions stem from the fact that the accident history didn't provide any any other pedestrian accidents. Is that correct?

[00:03:55]The accident history is a tool used to monitor the safety of a roadway. It's usually expressed in an in the form of an accident.

[00:04:18]This is auto accident here in 10 and one car.

[00:04:31]uh your accident rate would be extremely low because in 10 and a half years uh the statistics are going to show that the accident rate's almost going to be zero >> and the accident rate does not include near misses. True.

[00:04:47]>> That would be true. We don't ever learn of near misses. Near misses can occur and nobody ever knows about it.

[00:04:53]>> Well, you don't know about it. But you read you read information that came from people that lived in the community that knew about it. True.

[00:05:03]>> We have some information from the community that may have claimed that.

[00:05:09]But we can't engineer based on that. We have to actually do the investigation.

[00:05:14]Look at the road. Look at the history.

[00:05:17]Look at the standards. See if it's met those standards. And if it has and there is not a historical accident history, there's no accident rate to work towards.

[00:05:27]>> Well, let's be clear. You say that um you we may you have reviewed some that may have said that. You reviewed letters and uh papers that were sent in to the city and to the the the mayor specifically calling out problems that had occurred at that intersection.

[00:05:50]Right. There's no maybe there, right?

[00:05:52]>> I did read some of that. Yes. And then the city did their investigation and determined that no changes were required.

[00:06:02]>> You spoke about um monitoring the area with with real life statistics. You recall that testimony?

[00:06:13]>> I do.

[00:06:15]And can we agree that monitoring the area includes listening to the community?

[00:06:21]>> That is one of the things that we can use to monitor the area. And of course, if you get a a letter in that often times will trigger an investigation.

[00:06:31]And the conclusion from investigations though may not be changed.

[00:06:37]Whether you have one letter, two letters, three letters, the conclusions are based upon engineering standards that we can rely upon that have been proven to show how a safe roadway operates >> and whether changes are going to be made are also a factor of how much they're going to cost. Isn't that true? cost is usually something that might schedule it. Um, but it will not change the recommendations for what uh changes would be necessitated had there been a problem.

[00:07:10]>> Well, there were requests to uh install flashing lights. Isn't that true?

[00:07:15]>> Yes.

[00:07:16]>> And uh a signal at the crosswalk. True.

[00:07:19]>> That's true. That's >> all before the Iskander kids stepped onto the crosswalk. Right. Right.

[00:07:28]>> And those requests were ignored. True.

[00:07:31]>> They were not ignored. They were determined that the the uh requested enhancements would not improve the safety of a safe operating location. And I happen to agree with that. I think that there is no evidence. In fact, the Federal Highway Administration shows that enhancements like what was being requested at this location, and I've testified about this already, is unlikely to produce any safer roadway or intersection in its operations at all.

[00:08:01]>> Because you can't improve on zero. True.

[00:08:05]Isn't that what you said?

[00:08:06]>> You cannot reduce zero. If you want to reduce zero accidents by 56%, you still have zero accidents.

[00:08:15]And so because an accident had not yet actually happened and been documented, no changes are warranted in your opinion. True.

[00:08:28]>> It's not predicated upon the accidents.

[00:08:30]The accidents is an indicator of how the intersection is operating. You can have a location where you have no accidents and it is hazardous and changes would be required. that does not exist at this location.

[00:08:46]>> So, it's really an accident waiting to happen before changes will be made. Is that correct?

[00:08:54]>> You can have scenarios like that. that.

[00:08:57]Let's say that uh you have a location where the intersection site distances are obstructed because of street trees or other obstructions within the rightway of the road and you haven't had an accident yet, but you can predict that you're going to have one due to the uh obstructions and the failure to meet the site distances uh that are standardized. Here we have the site distances exceeding the standardized uh requirements and therefore you would not expect to have an accident such as what happened if you have everybody operating in a due care manner.

[00:09:38]>> This road was designed I believe you said for 55 miles an hour. That was the design of the road. Correct.

[00:09:45]>> Likely. We will never really know what the design speed. It could have been 60.

[00:09:50]It could have been 50. Um, it's likely that it the design speed of the roadway was 55 because of the type of roadway, the terrain that it's trying to navigate, and use in the area that that is likely what it was designed to, but we'll never really know. It's too long ago.

[00:10:09]>> Well, can we agree that if the roadway had been designed for 55 or 60, as you say, it may have been because you don't know. Um, if there's an expectation for a motorist to stop at a crosswalk, wouldn't you want to have a stoplight so that the motorist can see it as it's approaching?

[00:10:30]>> Uh, stop. You mean like a traffic light traffic signal?

[00:10:33]>> Absolutely.

[00:10:34]>> No, you would not. Traffic signals can create accidents, too.

[00:10:38]uh you if you apply them incorrectly, you can expect that you're going to have an increase in rear-end collisions involved with the traffic signal. Uh traffic signals have to be uh weighed very carefully. In fact, there are warrants for those that you need to study. There are eight of them and any one of those those warrants can trigger the installation of a traffic signal.

[00:10:59]And if none of them are triggered, uh you would not expect to build a traffic signal at that location.

[00:11:05]>> Yes or no? Can a traffic signal be seen easier by a motorist than a painted marking on the on the ground? Yes or no?

[00:11:16]>> The signal had properly placed would be able to be seen. Yes, they are up in the air.

[00:11:34]Most of the work that you do, 90% of the work that you do is for the plaintiff's side, people who bring the lawsuits.

[00:11:44]Isn't that true?

[00:11:45]>> That's true. U most of our forensic work is pliff related. We do some defense work, but uh most of what we're hired to do is by pliff counsel and consult with plaintiff's counsel.

[00:11:58]>> And you've worked with Mr. Panish's firm on 23 cases other than this one. True.

[00:12:06]>> Yeah, my firm has. Um me personally have not, but the firm has. Yes.

[00:12:35]So when you when you reviewed those letters from the community, some of them, um did you review the letters that said um that they were concerned about the the pedestrian safety concerns about the crosswalk.

[00:12:55]>> This is hearsay here with what the letters say o over them.

[00:12:59]>> I did read letters that were indicating that >> did did you read Mr. Wessel's letter from October 2019?

[00:13:07]>> I don't remember the name, but it's possible.

[00:13:10]>> Did you read Ruth Kavanaaugh's letter from October of 2019 regarding Pedestrian safety.

[00:13:16]>> Yes.

[00:13:17]>> Yes.

[00:13:18]>> Did you read the communications that were sent to the city manager, Rob Deuce?

[00:13:23]>> Yes.

[00:13:24]>> About public about the safety of that intersection. True.

[00:13:27]>> About the perceived safety from the public. That is true.

[00:13:30]>> And that was all before the Iskander boy stepped into this intersection. True.

[00:13:35]>> It was.

[00:13:43]Did you read the request that the city made to install flashing lights at the signal at the crosswalk? Sorry.

[00:13:53]>> Time sustain.

[00:13:55]>> I'm sorry. Let me rephrase that. Did you receive the specific requests made to the city to install flashing lights or a signal at the crosswalk? This >> is again vague. It's sustain.

[00:14:17]Did you review the public safety committee report from November of 2019 which was directed to the city council and the mayor?

[00:14:25]>> Yes.

[00:14:27]>> And that report included the request from the community to install flashing warning lights at the crosswalk. True.

[00:14:36]>> Yes, that was in there >> and that was in November 2019. True.

[00:14:42]>> Sounds right. I wouldn't swear to the date, but it's probably true.

[00:14:46]>> A year before this accident occurred.

[00:14:49]>> Misstates the evidence.

[00:14:53]>> Yes. And the conclusion was not to do anything because again, it met all the design standards and the operational standards that we've been talking about all morning. There isn't any enhancements that are going to be projected to increase the safety on a safe operating intersection.

[00:15:11]>> Is the is the only wasn't the only downside in your view to actually putting in some of these enhancements that it was going to cost too much money?

[00:15:26]>> There's not a necessarily a downside to installing them. You can do that. Uh if you want, if the city wanted to put in flashing beacons on their signs or some other device like inroad warning lights and they have the money to do that, go for it. I don't have a problem with that. Um it's just what I'm saying is not going to improve the safety. You're trying to improve the safety on something that doesn't need to be improved upon. uh the intersection is already operating safely and so you can pave the road with gold fleck if you want to but it it's not going to improve the safety any.

[00:16:08]And so your view having read those letters is uh those people who complained that they had to run across the intersection because cars were coming that they couldn't see around the bend that those people even though those people complained your view is the intersection was running safely because the accident did not happen. Multiple layers of hearsay, foundation, sustain.

[00:16:43]>> Do you remember reading a letter about a person who was trying to cross the street and they had to run across because a car was about to hit them?

[00:16:52]>> I do remember letters like that. Yes, I remember a letter that specifically stated that.

[00:16:59]That doesn't necessarily mean that the driver didn't have the opportunity to be able to observe them. You're talking driver negligence versus the city's negligence. And the city's negligence is non-existent here. They are operating this intersection pursuant to the engineering standards for a safe operating intersection. And the accident history bears witness to that.

[00:17:23]Therefore, if you have a negligent driver that's not stopping for somebody, that doesn't mean that they didn't have opportunity to see them in the crosswalk and stop. It just meant that they didn't.

[00:17:33]>> Well, you don't know if that driver had an opportunity to see the pedestrian that was running across the street, do you? What we do know is that the engineering sight distances were met and they were provided the distance needed to be able to observe a person, an a dog running across the road, an object in the roadway. They had the ability to see and react to that. They had the ability to see in far enough in advance for the speed of this roadway that if they're traveling at the speed limit or close to it, they have every opportunity to be able to avoid a collision.

[00:18:12]>> Do you remember my question, sir?

[00:18:15]>> Yes.

[00:18:16]>> Can >> I think I answered it?

[00:18:19]>> I don't think you did.

[00:18:21]My question to you was, you don't know whether the driver in that car could in fact see that pedestrian that was running across the street.

[00:18:31]>> Speculation. Isn't that true?

[00:18:32]>> So, it's totally >> ask an answer.

[00:18:43]>> Your only view is that you believe that the driver should have been able to see that person running across the street.

[00:18:50]Right. which which the vague and ambiguous and also irrelevant and >> speculation >> sustain.

[00:19:02]>> I'm just trying to understand you what you're saying. You're what you just said in your answer to my question was essentially that that driver that the road is designed so the driver should see. So I'm asking you what is the basis of your statement that the driver did see >> this again it's foundation over >> I don't know what any single individual driver did see what I'm telling you is that the engineering standards for sight distance is exceeded at this location it has been met and has been met by even additional distance above and beyond what is required for the posted speed limit. If a driver isn't looking out the window or if they can't see over the dashboard, I would have no idea of of knowing that. So, what an individual driver sees and doesn't see, I can't tell you any more than anybody else can.

[00:20:00]But what I can tell you is that the engineering standards for a safe operating intersection and roadway segment have been met and exceeded at this location.

[00:20:13]You believe that installing lights uh across the sidewalk would be a waste of money. True.

[00:20:20]>> Asked an answer. Overall, >> it's not necessarily a waste of money.

[00:20:25]It's not projected to improve the safety. Whether it's a waste of money is up to city council to decide where they're spending their money. If they want to spend the money, I don't have a problem with that. But there is nothing here at this intersection that says that if you do spend that money and putting put in these enhancements that you're going to get any benefit from it.

[00:20:49]>> There's no guarantee, right?

[00:20:51]>> Well, there's no guarantees in anything.

[00:20:53]You have too many variables.

[00:20:55]>> But can we agree that it might help to add the extra lights and flashing lights or a stoplight?

[00:21:05]>> They help what? What's that?

[00:21:24]I think you um have estimated that uh the cost of putting in um additional like a hybrid beacon would be about $150,000.

[00:21:41]Is that correct? I think I testified in my deposition that I've seen the cost of installing the Hawk system, which is a hybrid pedestrian flashing beacon system on a mass arm over the roadway. I've seen them cost anywhere from 100 to $150,000 to install. It depends on where the jurisdiction is and and who's paying for it and how big the project is. So with the installation of that system uh costing about $150,000 lives could be saved. True >> speculation >> sustain.

[00:22:23]>> So you just will not agree that installing that system makes the inter intersection safer?

[00:22:31]>> Safer than what it's operating safely as it is. It's not is it going to operate safer for an intoxicated speeding driver? It's doubtful. Perhaps a negligent driver would have some notice, but we don't design our roadways for intoxicated drivers that are doing double the speed limit. We just don't do that.

[00:22:52]>> Are the roadways designed to for the community that lives there?

[00:22:57]>> They are designed for the traffic that flows on them.

[00:23:01]>> And that would include the people that live there. True.

[00:23:04]>> Well, the people that that live there use it. They're not the only users, I'm certain. But it's the classification of the roadway, whether it's a major or a minor arterial and what the traffic volumes are projected to be and where the connections are and what it's serving. All of that goes into the flow of traffic. What other arterials are in the area carrying traffic and may be happening on those roadways that may divert traffic too have to be considered. So we are designing it for not just the community. They are part of the equation of course but the flow of traffic is handled through uh all the various tools that we use to design and build and operate roadways.

[00:23:43]>> I think sir that you testified that the intersection in your opinion met both federal and state sight distance standards. Is that correct >> for this whereas it applies to this uh accident? Yes. And but these standards are really minimum requirements, aren't they?

[00:24:02]>> They are. They form the benchmark with the factors of safety built in that need to be recognized. You don't want to go below them. If you want to exceed them and in many cases they are exceeded just by the geometry of the roadway. You can exceed them. What you can't do is compromise and go below them. And that's where we are with this is this is the minimal safety standards that would be expected to operate a safe roadway. From there, if you want to do other things, by all means, go for it. But just be careful how you apply these enhancements because first of all, they're not necessarily going to improve anything.

[00:24:43]And second of all, improperly enhancement, improperly installed enhancements can actually be a hazard in themselves. nothing preventing the city from making the decision to make the intersection more safe. Isn't that true?

[00:24:58]>> More safe than what? An accident rate that's approaching zero is about as safe as you're ever going to get.

[00:25:06]>> Is there anything preventing the city from making changes to the intersection to make it more safe?

[00:25:13]>> They can make any change, like I said, that they want. Don't expect it to make it any safer. It's already safe. You have an accident rate that's approaching zero. And I don't see how you can improve on that.

[00:25:26]>> And and for those accident rates, you're you're relying on the Switters, right?

[00:25:30]>> And the sheriff.

[00:25:32]>> Switters and the sheriff. And those those uh people that had near misses at that intersection that complained to the city and the various officials. They didn't get those reported on Switter, did they?

[00:25:43]>> No, they would never be entered in >> or or the sheriffs.

[00:25:47]>> Yeah. There's no report.

[00:25:52]>> So those just don't count, right?

[00:25:56]>> Well, how would you count them? There isn't any way to quantify it. You have somebody that claims it was a near miss.

[00:26:03]Was it was it really a near miss? What's a near miss? Is that 2 feet? Is it 20 feet? What is a near miss? Uh everybody's perception is different. We cannot put those into any kind of a quantifiable uh value to be able to assess it.

[00:26:21]>> So my my question sir was those near misses are not counted on the Switter's report. True.

[00:26:28]>> That's correct.

[00:26:30]>> Switter's report is generated from traffic collision reports submitted to the California Highway Patrol. A near miss is not going to generate a TCR at all.

[00:26:41]Let's talk about the median.

[00:26:44]Um you testified that um the median is not a formal refuge. You recall that >> it's not designed to be a formal refuge area for a pedestrian crossing.

[00:27:00]>> With the court's permission, I'd like to put up 145-2.

[00:27:05]>> No objection.

[00:27:16]Okay. So, yeah. Perfect. Thank you. So, we can see the area that we're referring to as the median here. Correct.

[00:27:25]>> Yes.

[00:27:26]>> All right. And um may I approach your >> Yes.

[00:27:31]>> I don't have a point.

[00:27:34]>> It's right here.

[00:27:35]>> Thank you.

[00:27:38]And and just so that we're clear, we're talking about this section in here, correct?

[00:27:42]>> Well, the median in in its entirety, but we're really talking about the nose where where the right >> crosswalk is. Yeah.

[00:27:50]>> Right. Right. And so this section, if it had been drawn straight down all the way to the crosswalk, would serve as a safe haven, if you will, for people who need more time to get all across these four lanes before the traffic can come up.

[00:28:08]True.

[00:28:10]>> I lost your question.

[00:28:12]>> This median, you see how it's triangular shaped?

[00:28:15]>> Yeah. It's a parabolic flare.

[00:28:17]>> Yes. And it does not it does not provide any refuge at the crosswalk area because it's of its shape. True.

[00:28:26]>> No, it does. It you're going to have traffic to the one side of it. And so you can stand near the nose of it and wait for traffic in the northbound direction to uh do whatever they're going to do. If they're if you see somebody approaching in the northbound side and they're not stopping and you are about to enter the center line area of the roadway, you can stop and wait for them to go by and you're not likely going to be hit by a southbound vehicle because there's a median there that you're behind.

[00:28:55]>> So the median isn't actually at the crosswalk, is it? It's just stops right before the crosswalk. True.

[00:29:01]>> Yeah. I mean, you can see it that it's right there at the paint line. It doesn't project itself through the crossing and it would not be appropriate to do that with this type of a medium anyway.

[00:29:12]>> And and that's because it does not it's narrow at the end and does not actually come all the way to the crosswalk if a straight as if it would if a straight line was drawn from the base of it.

[00:29:23]True.

[00:29:25]>> It it does not cross the crosswalk.

[00:29:28]>> We agree on that. Yes.

[00:29:30]>> Yeah, I would agree. You can see it doesn't enter the crosswalk. All right.

[00:29:33]So, there's one, two, actually there's two lanes of traffic, but then there's also the parking area.

[00:29:40]If a person gets onto this crosswalk from over here, they have to cross all the way over here.

[00:29:49]And there's nowhere for them to stop if they can't make it, right?

[00:29:53]>> Yeah. They can stop there by the nose of the median if they need to.

[00:29:56]>> Well, they'd have to jump over to it because it doesn't cross into the crosswalk. True. It doesn't cross into the crossing, but you could definitely stand in the crosswalk near the nodes and wait for traffic if they're not going to stop in the northbound direction to clear before you continue.

[00:30:12]>> The idea here though is that the sight distances are established so that a pedestrian should be able to cross the entire thing and while they're walking across, approaching motorists can see them in the roadway and react to their presence and stop. That's why these sight distances are so important. And um because of its narrow configuration, there isn't really much room for a person trying to cross the street to jump into that area to avoid a an approaching car. True.

[00:30:50]>> Well, you can see what the area is. It's probably about 4t wide. But again, the idea is the design of this intersection is not to cross it one half at a time.

[00:31:01]You can do that if you have to, but the idea of the design of this intersection is to cross all the way through with the sight distances available to the driver to observe a pedestrian in the process of crossing the roadway and and stop them stop them as required.

[00:31:25]Let's I want you to con consider this as a hypothetical. Person is coming across the street and now they're over right about where the head of this arrow is.

[00:31:34]You with me?

[00:31:35]>> Sure.

[00:31:35]>> A car has come around this turn which is a it's a curved road. Come around this turn and now for the first time sees that this person is approach this person is here and the car is approaching it.

[00:31:48]You with me so far?

[00:31:49]>> Yes.

[00:31:51]right here where this arrow is. There's nowhere for this person to jump into to dodge that car, is there? But >> they'd have to back up. Um, they shouldn't have to do that because the sight distances to the pedestrian are sufficient for that driver to stop and wait for the pedestrian to finish crossing like they were expecting to.

[00:32:10]>> Yes, you have said that.

[00:32:12]>> Um, my question to strike comments by council.

[00:32:16]>> Yeah, please.

[00:32:24]It would be safer if there was a median in the middle there in the intersection that came all the way straight down to the crosswalk for the pedestrians if they needed it. True.

[00:32:40]>> Not with the sightelines that are giving drivers the ability to see and observe and stop for a pedestrian crossing the roadway. that would be unnecessary.

[00:32:50]Uh if you wanted to do that, you could even claim that well grade separating the crossing and putting a pedestrian bridge would be safer, too. And that would also be true, but it's also not necessary. The intersection is safe the way it's designed and being operated as it is.

[00:33:06]>> So, this is not a formal refuge island.

[00:33:08]True.

[00:33:09]>> Yeah. I've already testified this is not a formal refuge area in the median. Uh you're not going to if you put in a signal that's pedestrian activated with a pedestrian push button, you're not going to have the ability to poke one on the median without rebuilding the nose of the meeting.

[00:33:25]>> It's not an ADA compliant uh med safe haven median either.

[00:33:31]>> No relevant.

[00:33:32]>> It was I'm sorry. Objection sustained.

[00:33:34]You're disregarded question.

[00:33:39]>> It's not a dedicated pedestrian waiting area. Is that fair? asked numerous times.

[00:33:45]>> Sustain I think you've testified that you do not know whether the city intended for people to stop at the median before completing their crossing. Truth, >> I don't know what's in the mind of the city's engineers. The design of the roadway would indicate that they did not intend that to be the case. They did not design this to be crossed in two phases.

[00:34:39]And I think that that's uh reasonable for this type of a roadway.

[00:34:45]>> And my question was a little bit different. You don't know whether the city intended for people to stop at that meeting.

[00:34:52]>> True.

[00:34:54]I don't know what was in the mind of the engineers within the city, but based upon the design that we see.

[00:35:02]This roadway is not designed to accommodate that pedestrian movement in two phases as if it's two roads. It can work, but it's not the way it's designed. And and I don't believe that was their intention. Um, let's uh with the court's permission, I'd like to publish 76-4.

[00:35:41]Okay. Uh this is a an exhibit that we looked at earlier in the case. Um and and can we agree that the road is curved as it approaches uh the sidewalk?

[00:35:55]>> Yeah, the northbound direction or the south leg of the intersection is within a I think it's a 1,450 ft radius curve. That's what our survey showed it was. And it becomes tangent as a straight line tangent section right there by the uh the south side of the intersection. The intersection is right there at the end of the curve and then it's tangent north of there for a distance.

[00:36:19]>> And how many feet from the intersection does the uh curve become tangent?

[00:36:24]>> It's right near the south side of the intersection at the curve returns is where that >> and I'm asking you for feet. Are you able to give me an estimate of how many feet that would be from the crosswalk?

[00:36:35]It's going to be from the cross crosswalk.

[00:36:37]>> Yes, please.

[00:36:38]>> Um I would have to look at the diagram that's got the on.

[00:36:44]>> Let me ask you because earlier you testified and I wasn't sure you had that different diagram up. Um and I wasn't sure if you were saying it looked like you were saying 310 ft to to 3.

[00:36:59]um you had that red line that went across and that was that was the distance if I understood you correctly from the um where the where it's a straight line of sight to the area of impact. Is that was that correct? So in other words, uh what I understood you saying was that the and let me just approach again and I might have to read but I sounded like you were saying that um if if you're looking at the intersection at this point right about here which is the area of impact I think what you said and this would be uh where Mrs. Iscander was approximately right around here that you had said it was about 310 ft something like that where it where the line of sight would be straight for the driver approaching to see. Did I get that right?

[00:37:54]>> There were multiple sight lines. I think the 310 ft was for a pedestrian stepping out in the other direction when they got to the bike lane and had to look past a row of parked cars. how far they could see an approaching vehicle or the driver of the approaching vehicle could see them about to step out into the roadway.

[00:38:17]That was about 310 ft. That was the shortest distance to the number two lane from the bicycle lane, not from where the AOI was.

[00:38:29]>> Okay. So, the driver Okay. And from the bicycle lane, it was 310 ft >> to the number two lane and longer than to than that into the number one lane.

[00:38:41]>> So the number two lane was the longer one. You would need 390 ft. Is that correct?

[00:38:45]>> That's the number one lane. Yes.

[00:38:47]>> Oh, the number one lane. Okay. And what do you have an understanding of what lane uh Miss Iskander was in when she dodged the vehicle approaching?

[00:39:00]Well, I think the accident happened in the number one lane. I if memory serves, there are two area AOIS. It may have been the number two lane. Um I'd have to go back and look, but the pedestrians were already crossing the other direction. So, they weren't just stepping out into the lane of traffic near the bike lane. They were already they had already established their presence in the roadway. So, a driver coming around this curve as they're coming up to this intersection from any of those locations that I gave you should have been able to see the stopping site distance and even the intersection site distances which are longer than the stopping site distances are from the from their lane of traffic.

[00:39:50]>> We can agree that this road curves true.

[00:39:53]>> Oh, of course. Sure.

[00:39:54]>> Okay. So, can we agree that right around you see where the left hand turn lane begins?

[00:40:04]>> Yes.

[00:40:05]>> Can we agree that right right about where that left hand turn lane begins, the road is straightening out. True.

[00:40:12]>> You're approaching the end of the curve.

[00:40:14]I think the curve is further north than that.

[00:40:17]>> Okay. Right.

[00:40:21]And so if a driver is down here to the left of this diagram, it's not going to be able, for example, if I go all the way to the end of this diagram here, that driver is not going to be able to see someone who is over at the right end of this crosswalk. True.

[00:40:40]>> That would be true.

[00:40:41]>> And if if we're way over here at the end, that driver is not going to see someone in the middle of the crosswalk.

[00:40:48]True. Probably not. The sight distances don't go that far for this speed. That would be beyond what you would need to have. Again, your sight distance standards are based on upon the speed of traffic. And so for a 45 mph or even a 50 mph driver, they can see far enough in advance to be able to stop for a pedestrian in the roadway. They can see the drive the pedestrian in the roadway and they can react to that from the engineering standards that have been published by both the federal government and the state and adopted by the engineering industry and the when you look at the accident rate again then that bears witness that this is not a dangerous area >> and I think you you've told us you've never been to the site yourself correct?

[00:41:35]>> I have not. I relied upon the results of our fieldwork from my survey crew which is pretty normal.

[00:41:40]And and um you agree that nighttime conditions may materially affect the pedestrian safety. True.

[00:41:50]>> Nighttime conditions can affect that.

[00:41:52]Yes.

[00:41:53]>> Um and you did not do any light meter readings um of what the light would have been like on that night. True.

[00:42:04]>> Right. We know that the TCR says it was dusk and so that tells me that it was not yet dark because they do have that as a as a criteria as well. So they call it dusk which means that we don't know whether the street lights have come on yet or just what the lighting conditions were at that moment in time.

[00:42:26]>> No, nobody seems to know. Um, and in fact, when you had your survey crew go out there, you had them go out in the afternoon because you don't want your survey crew in the dark to risk injury.

[00:42:41]True.

[00:42:42]>> Well, I wouldn't want them in the roadway. When they are setting up equipment and they're taking shots on the lane lines, they're out in the roadway and they're not necessarily in the crosswalk. They are taking shots in the median. They're taking shots along the curb lines. They're taking a shot.

[00:43:00]They're taking shots at the beginning of the lefthand curve or turn lane. Uh they're picking up all the striping.

[00:43:07]They're in the road and I don't want them there any longer than they have to.

[00:43:11]And so when they're out there with a orange vest, they you know, daytime is always better. Plus, I don't want have to pay them in overtime hours to be there after hours. So there's that, too.

[00:43:28]All right, why don't we stop?

[00:43:29]>> You agreed to ro why don't we stop here break for lunch and I'll talk about case yourselves or with anyone else. We'll be back at 1:30.

[00:43:41]>> Good afternoon, Mr. John.

[00:43:43]>> Good afternoon.

[00:43:44]>> Just a few more questions. Um you do you understand that in this case um there is a dispute with regard to the speed of the vehicle. Do you understand that?

[00:44:00]>> Uh there may be a dispute. Yeah.

[00:44:03]>> And and you also understand that there's a dispute as to whether this Gman was impaired at the time of the incident. I >> I would object to that.

[00:44:14]Hold.

[00:44:21]>> Can you hear me? Okay.

[00:44:23]>> I didn't hear you.

[00:44:24]>> I'm so sorry. And I I I can't get closer, but I can I can speak louder.

[00:44:28]>> That would be good.

[00:44:29]>> Okay. So, the question was, you understand that in this case, uh there is a dispute as to whether Miss Grossman was impaired at the time of the accident. You understand that? Um that may be true too.

[00:44:45]>> Okay. All right.

[00:44:46]>> Um you agree that the road that roadway design influences driver behavior.

[00:45:01]Correct.

[00:45:02]>> It sure can depending on what aspect of the design we're talking about. But yeah, it can.

[00:45:08]>> Okay. Um, and I I think that you uh previously testified um that you think Mr. Ericson saw the boys. Correct.

[00:45:20]>> Objection. Can also cause speculation.

[00:45:23]The state's prior testimony.

[00:45:27]>> Sustain.

[00:45:35]Do you have an opinion as to uh whether you believe Mr. Ericson saw the voice?

[00:45:40]>> Can same objections.

[00:45:43]>> Sustain.

[00:45:54]>> May I have a sidebar, your honor?

[00:45:56]>> Yes, >> Mr. Did you conduct any kind of an analysis as to whether either Mr. Ericson or Miss Gman actually saw the kids?

[00:46:10]>> I did not do an independent analysis of that. I accepted your representation in my deposition that Mr. Ericson saw the boy.

[00:46:27]You previously testified that the number one way to make the inter intersection safe is to provide the ability to see what's in front of you clearly. You recall that?

[00:46:37]>> Yes.

[00:46:42]Wouldn't adding a street light, a signal light, aid in the in providing the ability to see what's in front of the driver clearly.

[00:46:53]>> Okay. You just asked two different questions because a street light and a signal light are not the same thing.

[00:47:01]You talking about a traffic signal or you talking about street lighting?

[00:47:05]>> Oh, no. I'm I'm talking about a traffic signal. Sorry, that wasn't clear. A traffic signal is not going to allow you to see pedestrians in the roadway any better. It's going to tell you whether you need to stop or you have a green light.

[00:47:17]>> If there's a traffic signal and the pedestrian is there and activates a button, the light will turn red.

[00:47:25]Correct. For the oncoming traffic.

[00:47:27]>> Well, eventually before it releases the pedestrian phase, it will cycle to red.

[00:47:32]Sure. Okay.

[00:47:42]Thank you. Those are all the questions I have.

[00:48:01]>> Hi, good afternoon.

[00:48:02]>> Good afternoon.

[00:48:04]If I understand correctly, the speed study that was conducted by the city prior to 2020 showed that most cars were speeding through the intersection. Is that true?

[00:48:16]>> It showed that the 85th percentile was 47 mph in one direction and 49 mph in the other. I don't recall what the 50th percentile is. We would have to look that up. Okay. So, 85% of the cars going through that intersection at the time of the speed study in 2020 were exceeding the speed limit. True.

[00:48:37]>> No, that would be a mischaracterization.

[00:48:39]It's the top speed that 85% of the cars were doing. So, 85% of the cars are doing that or less. So, they could have been doing below the speed limit, too.

[00:48:52]>> Okay. Okay. So, the 85 85th percentile is you're testifying that that's the top speed that they were going through or that's the 85th percentile is the percentage of cars that were exceeding the speed limit at 47 and 49 mph.

[00:49:07]>> Neither one. The 85th percentile is a statistical spread of vehicles in their speeds. So what you take, let's say you take a 100 cars and you do a speed analysis on them. You do radar on them.

[00:49:26]The 85 of those the the bottom 85 in speed had a maximum speed that any one car was doing. It could be one car that sets it. It could be five cars that set it. But 85 of those cars are at that 85th percentile speed or less with 15% above that by certain whatever it is.

[00:49:52]>> So 15% of the cars were going above 47 and 49 miles per hour at least.

[00:49:57]>> That's a true statement. Yes.

[00:50:00]>> You testified earlier, if I understood correctly, that sometimes you have to reassess the safety of an intersection if circumstances changes. Did I hear you correctly earlier?

[00:50:09]>> You do. We monitor our intersections and roadway segments routinely when when engineers are looking at the the roads as development comes in, traffic patterns change, demand changes, etc. >> So, would a regular influx of pedestrians or a new influx of pedestrians to the area, would that be a circumstantial change that would cause for a reassessment of the intersection?

[00:50:33]>> It depends on where the pedestrians are.

[00:50:37]If the pedestrians are walking along the sidewalk, that is not going to mean that there's any changes in the intersection.

[00:50:45]If pedestrians are crossing the road and there's a substantial increase in that volume, that could trigger a warrant for a signal or some other type of traffic control. Here, we don't have that. The most we have is eight pedestrians in 1 hour.

[00:51:05]I want to direct your attention if I may mark for identification exhibit 530-001 to be shown just to the witness.

[00:51:14]>> Can I see >> council as well? We have this main screen. So I haven't >> I'm sorry.

[00:51:25]>> You have the main screen. So I haven't >> I'm not here.

[00:51:31]>> This just for the witness.

[00:51:34]>> 5301.

[00:51:40]>> What?

[00:51:42]>> What?

[00:51:43]>> Emails.

[00:51:47]Okay.

[00:51:51]All >> right. If you could take a look just at the bottom of that document and read it to yourself.

[00:52:07]>> Okay. Okay. In 2018, was there a circumstantial change expressed to the city that something had been changed to bring more pedestrians to the area at least as of early 2018 using that crosswalk?

[00:52:21]>> Calls for your sustain.

[00:52:24]>> Was this a document that you reviewed prior to making your opinions in this case?

[00:52:30]>> I had seen this document. Yes.

[00:52:33]So, was there more pedestrians in 2018 suddenly using this area due to some improvements that were done?

[00:52:40]>> Same thing. Sustained.

[00:52:43]>> Were you aware of any changes that were bringing in additional pedestrians to the area?

[00:52:51]>> I'm not aware of anything significant that would bring additional pedestrians.

[00:52:55]Were you aware that there was an increase of pedestrians using that crosswalk at least as to early 2018?

[00:53:02]>> No foundation >> sustain.

[00:53:04]>> Did you review anything in making your opinions that more pedestrians as of early 2018 were using that intersection than in prior times?

[00:53:15]>> I did not evaluate how many pedestrians were increasing over time. What I looked at was the available data I had on the number of pedestrians crossing the street and I looked at that in comparison to what might trigger warrants for additional enhancements which there was not enough pedestrian volume to do that. Part of your review in this case also included reviewing emails from or emails or complaints from citizens stating in 2017 that over the past 3 years there was a significant increase or worsening of the close calls at the intersection.

[00:53:55]>> How much check calls for your sake?

[00:53:57]>> Sustain. Do you review any documents in your analysis of the case to suggest that between 2015 and 2017 that the close calls at the intersection had gotten significantly worse?

[00:54:10]>> Same call for your sake. Sustain.

[00:54:13]>> Do you review any documents that there were any changes for the safety of pedestrians at that intersection between 2015 and 2017?

[00:54:22]>> Same objections.

[00:54:23]>> Sustain.

[00:54:24]>> Ask council not to keep injecting hearsay in the question. Don't speak.

[00:54:31]>> Did you review any documents about citizens concerns?

[00:54:34]>> I'll tell you to stop doing it.

[00:54:36]>> My my apologies.

[00:54:39]Did you form any conclusions as to the amount of safety concerns at that intersection prior to uh or sorry between 2015 and 2017.

[00:54:53]The conclusions that I drew was while some people had written in and complained about this intersection, the accident history and the protocols that had been set up to control the traffic, the speed of traffic, the sight lines for this intersection all met engineering standards and would not require any further enhancements than what the city had already given them.

[00:55:18]So your analysis and conclusion is just based on actual incidents rather than complaints. True.

[00:55:24]>> Yes. Complaints can be any number of complaints. People can complain about their breakfast in the morning and it doesn't really mean anything. So you have to go by the statistics that are given to you and those are the accidents of record that we can verify.

[00:55:39]>> All right. Thank you.

[00:55:42]>> There are questions.

[00:55:44]>> Yeah, that's your question. Okay. Can I do them while you're there? They're doing questions.

[00:55:48]>> All right. First of all, council just asked you about people speeding.

[00:55:52]Remember those questions?

[00:55:53]>> Yes.

[00:55:53]>> If if 50% of the people were speeding, is that okay for Mr. Ericson to speed?

[00:55:59]>> No.

[00:56:00]>> Is it okay for Miss Gman to speed? In other words, if somebody else is doing it, it's okay for me to do it. Is that right?

[00:56:07]>> To be honest, >> overall, >> no. But you need to obey the speed laws and that includes the posted speed limits on our roadways. That's why we put them there.

[00:56:16]>> So those questions if someone else was doing it's okay. That's not okay, is it?

[00:56:20]>> No, it's not.

[00:56:22]>> And council asked you questions, Miss Holm, about effects of darkness affecting the safety of pedestrians. You remember those questions?

[00:56:31]>> I do.

[00:56:32]>> Does drivers that are impaired driving at night affect the safety of pedestrians?

[00:56:38]>> Objection. foundation speculation incomplete hypothetical beyond the scope of this witness's expertise is not a human expert >> overrule >> um intoxicated drivers is not something that we anticipate having to design our intersections to accommodate. We do not uh design our operations to be able to allow people to break the law or drive carelessly. We expect them to obey the the the protocols that we as engineers put on our roads. That's why we do it.

[00:57:10]>> She asked you about uh affecting safety of passengers at night. Would racing of two cars affect the safety of pedestrians at night?

[00:57:20]>> Objection, your honor. Beyond the scope and incomplete hypothetical >> lacks foundation cost or speculation >> overall.

[00:57:29]>> Yes, that would definitely be something that you would expect to have safety compromise for sure. And finally on those questions, she asked, "Would someone traveling 73 to 82 miles an hour at that location at night affect the safety of two boys crossing the crosswalk?"

[00:57:50]>> Beyond the scope, your honor.

[00:57:51]>> Oh, yes, it would. This is not a drag strip. We are not designing this as a NCH RS drag strip or NA NCH drag drag strip. This is a an arterial through a residential and mixeduse area.

[00:58:08]>> Your honor, move to strike the answer as in improper argument by the witness.

[00:58:14]>> Overall, council asked you whether there was a dispute about Rebecca Gman being under the influence of alcohol and drugs. You remember those questions?

[00:58:24]>> I do. In all the materials you've reviewed in this case, have you seen anyone that says that Rebecca Gman was not under the influence of alcohol at the time of the collision?

[00:58:35]>> Objection. Improper expert opinion witness.

[00:58:38]>> Well, council asked you that there's a dispute. She said, council said, were you aware there's a dispute? Do you remember that question about whether she's a pair?

[00:58:50]>> I do.

[00:58:51]Have you seen any evidence in that dispute?

[00:58:55]>> No, I just have heard about it.

[00:59:05]Was there anything present in the roadway that would prevent Rebecca Gman using due care when operating her vehicle from seeing the young boys crossing the street?

[00:59:17]>> Objection. Foundation speculation.

[00:59:20]overall.

[00:59:21]>> There was nothing that I'm aware of that was present on the roadway at the time that would obstruct her sight distance.

[00:59:27]Sight lines were met. The engineering standards and the guidelines were met.

[00:59:32]This roadway was a safe roadway at the time that this accident occurred.

[00:59:38]Based on the questions of Miss Holm and the information about citizens raising concerns of the intersection, is there anything that you're aware of that could have done the city that would have prevented this from occurring?

[00:59:54]>> No. And as I testified before lunch, trying to reduce an accident rate that is next to nothing by 56%. Well, if you take zero and you reduce it to by 56%, you still have zero. So, there isn't an accident history here to be worried about.

[01:00:13]>> Did the city of Westlake ignore these letters or did they do something? Did they investigate?

[01:00:19]>> Objection. Foundation speculation.

[01:00:21]>> Overall, >> they did their investigation. City council said they didn't want to do anything further. There wasn't anything ne left to be done. I agree with those findings. Those findings show that this intersection is operating safely and there's no accident history that would bear witness otherwise.

[01:00:38]>> No further questions.

[01:00:46]>> Few questions from jurors. Do you consider the crosswalk at the incident location to be long and in a high pedestrian activity area?

[01:00:58]If yes, well, I'll ask the if after.

[01:01:04]>> Um, it's it's an average crossing.

[01:01:08]You're crossing four lanes of traffic.

[01:01:10]You have a median that you're passing past, and then you've got the parking lanes and bike lanes. So, you're seeing a lot of these kinds of of uh marked crossings and unmarked crossings across four lanes of traffic. So, it's kind of an average. Uh, I wouldn't say it's excessively long. No, but it's that's what it is.

[01:01:32]>> Okay. Angle the microphone toward just that part. Right. Okay. Thank you.

[01:01:37]>> We're going to fix this again, huh?

[01:01:39]>> Uh, uh, there was mentioned before about having eight warrants for installation of a traffic light. Is there a minimum amount of warrants needed for a community to be required to install a traffic light? Okay, so the warrants and that's a really good question and a lot of people don't understand signal warrants. There are eight different signal warrants and any one of them if you trigger a warrant can be justification for the installation of a traffic signal. Now just because a warrant is triggered does not put an obligation on the agency to build a traffic signal.

[01:02:20]And the antithesis of that is equally true that if you don't have any warrants, it doesn't present a bar to prevent an agency from building a signal. They're guidelines. And the reason that we have them is because the installation of a traffic signal can introduce accidents and can actually make a a a safe area unsafe. We don't want to use them indiscriminately. And it's not because of cost. It's because of the way traffic operates in and around them.

[01:02:54]>> With your research, did you see any change in traffic volumes or people in the crosswalk during the COVID pandemic?

[01:03:03]If so, what were they and how did they apply uh how did they apply that to your uh the study results?

[01:03:13]>> So, this is a fairly low volume road.

[01:03:16]Uh, I think it was in 2015 the city did traffic counts and what they provided was 24-hour counts. There's been two traffic counts that we've seen. One of them was for a 24-hour time period where they could determine when the peak hours were. We don't have a before and after COVID or during CO uh specific to this site. It was never done. Um the the low volume roadway is not likely to have changed much over the years. It's it's only 6,476 vehicles a day that use this. It really doesn't even warrant four lanes of traffic because it's just not enough.

[01:04:00]So, it's a low volume roadway and you would need to have a a substantial increase before anything would have to be done to increase the uh warnings and the controls or notifying a driver of the presence of pedestrians in the road.

[01:04:20]Likewise, we don't have too many counts for pedestrians available to us either.

[01:04:25]What we do know is that the the traffic count that we do have pedestrians for only has eight pedestrians in a given hour that cross this roadway and that happened between the 2:30 and 3:30 in the afternoon. During the peak hour for the traffic volume, there were only three vehicle or pedestrians that crossed through this intersection. So the those two val values uh superimposed on the peak hour for motorized traffic don't trigger anything either either from the federal government or the state. It it we're way below the margins here.

[01:05:10]>> How long has your survey crew worked for your company?

[01:05:15]>> Uh well we come out of another company and we all came together. Um, my survey crew has been working together with one another for the youngest is probably going to be 30 years, 35 years now. They've worked with me since I was introduced to them in 2005. I've known them and they've worked under my direction since 2005. And prior to that they were working under Harry Creeper's direction who was an engineer uh from that owned the firm in which we all came from. Thank you. Can you give an example of a crosswalk that would necessitate an extended median?

[01:05:58]>> That would nec necessitate an extended median. Is that okay? So that could come into play when uh gaps in traffic are a problem where you have a gap in traffic from one way but you don't have it for the other and then when you get it for the other you don't have it for the the original side. So that you may have to have a median where pedestrians and even motorized traffic would have enough space to be able to cross one half of the roadway at a time. A lot of times you find that happening on what's called a conventional divided highway. Parts of State Route 395 fit that definition where in some cases in the median of another stop sign where drivers coming out of a side road have to stop in the median area, but there's sufficient room to stop a vehicle out there safely.

[01:06:53]those kinds of things is where you find that uh if you get a lot of traffic and the time gaps in traffic are a problem, you might have to build a a refuge area where drive uh pedestrians can walk one way and then wait for traffic to clear and walk the other. Those are not all that frequent and they do not uh occur very often at all on a road in an area like this.

[01:07:29]Did you take non-acc issues from traffic stops into account such as speeding tickets, unsafe driving warnings, etc. Why or why not? Um, for example, any police records. Uh, what?

[01:07:49]So, the public works department of most agencies never get a a history of traffic tickets that have been issued.

[01:07:58]What'll happen is if the police department is issuing a lot of citations for a given area, uh they may bring that up to public works as a problem area and what they're trying to do to bring down the speed and that brings in traffic calming uh issues that we can do. We can bring in uh areas where the curbs are are reconstructed and brought closer that kind of psychologically slows traffic down. Uh speed humps can come into play for areas where you have speeding that's occurring and you want to get them down around 15 or 20 miles per hour. You can do that. But generally speaking, the police departments issue the citations. The courts take care of the citations. The public works department and the engineers never even hear about them. And somebody like me on the consultant side wouldn't ever get notice of that. I I would just be in the same loop as everybody is and would never know about it.

[01:08:57]>> All right. Thank you.

[01:09:01]>> You are now excused. Well, any other questions? No. All right. You're excused.