Photo by Chris Woo

What caused the accident? Marijuana-impaired driver or the median?

Hyun Jeong Choi’s glass marijuana pipe rested inside the center console of her 2015 gray Toyota Corolla. The pipe was still hot to the touch on Easter Sunday, March 27, 2016, when traffic accident investigator Christine Garcia touched it nearly 30 minutes after Choi’s left front tire struck a portion of raised median on Pomerado Road at Caminito Alto in Scripps Ranch. The collision with the median blew Choi’s left front tire, twisting her car counter-clockwise into oncoming traffic and directly into Jon Warshawsky’s 1956 Porsche Speedster. The impact eventually killed Warshawsky’s life partner, 48-year-old Amanda Walzer, and left Warshawsky, a former author and publisher for Deloitte University Press in San Diego, clinging to life after a severe brain injury and paralysis caused by fractures to the occipital bones located at the base of his skull.

The median has been the subject of numerous complaints

In March of 2017, Warshawsky sued the City of San Diego for improper design of the center median and failure to maintain it.

White plastic bollards (left) at Pomerado Road and Caminito Alto

Photo by Chris Woo

According to public documents obtained by the Reader, the median was the cause of at least one other accident prior to the collision and the subject of numerous complaints — one of which came from the San Diego Police Department — for poor visibility in months preceding the death of Walzer.

Warshawsky’s lawsuit raises the question of whether a marijuana-impaired driver or the median was the cause of Walzer’s death and Warshawsky’s injuries. It’s a legal question that has been asked before.

Brain dead

Warshawsky and Walzer were driving west on Pomerado Road at 5:30 p.m. in Warshawsky’s restored Porsche. Meanwhile, Choi traveled east. Choi’s car drifted from the eastbound lane into a left-turn lane at Pomerado Road’s intersection with Caminito Alto. Choi struck two of the white bollards separating the turn lane from the eastbound lane. Her front left tire slammed into a portion of raised median just north of the turn lane. The tire blew out. The median, according to a traffic collision report, created drag on Choi’s damaged wheel, sending her car into oncoming traffic. Her Toyota slammed into the driver’s side door of Warshawsky’s Porsche, buckling the dashboard and dislodging the front windshield.

When witnesses arrived, Walzer was draped over the passenger-side door unconscious and bleeding. Warshawsky slumped toward Walzer, also unconscious. Choi, according to witness testimony, sat motionless in the front seat. She was unresponsive and had a glazed look on her face. The witness noticed the marijuana pipe. Warshawsky, Walzer, and Choi were transported to nearby hospitals. Two days later doctors declared Walzer brain-dead. She died the following day. Warshawsky remained in critical condition and is now unable to care for himself. Choi’s injuries were minor. She now awaits a criminal felony jury trial scheduled for September 22, 2017. Choi was on probation at the time of the accident for driving while under the influence in 2012.

Poor visibility

Public documents obtained by the Reader through a public records request show the median on Pomerado Road at Caminito Alto as well as nearby intersections have caused other accidents and prompted citizens and the police department to request additional signage be placed to improve visibility.

In June 2011, a resident requested that the city “evaluate median end treatment” just northeast of Caminito Alto at Spring Canyon Road.

In February 2012, a man struck the center median at Caminito Alto. He was later cited for driving under the influence.

Then, in April 2014, city staff oversaw an asphalt-overlay project on Pomerado Road, from Avenida Magnifica northeast to Spring Canyon Road, including the intersection of Caminito Alto and Pomerado Road, the location of the accident. City emails show there were several errors in the restriping of yellow hatching marks along Pomerado Road. In addition, crews failed to repaint the median nose yellow, to indicate the end of yellow lines and beginning of the raised median.

In May 2014, the San Diego Police Department’s dispatch center requested the city’s transportation department place object markers near the median at Caminito Alito due to poor visibility and “insufficient illumination” resulting in complaints that drivers were “running into it.”

A follow-up email from officer Patricia Krall to a junior engineer for the city’s Transportation and Storm Water Department, Shagor Hossain, explained the issue. “The raised thin median peninsula is for turning traffic into Caminito Alto. The median is in a dark part of a turn in the road and difficult to see at night.”

Hossain submitted a work order to place two object markers at the center median. It is unclear if that ever occurred, as no signage is currently in place. A city spokesperson did not respond to questions in time for publication.

When is a city liable?

In 2015, during a review of the court case Cordova vs. City of Los Angeles, California’s supreme court judges expanded liability for municipalities in cases involving alleged dangerous conditions of public property. San Diego appellate attorney Martin Buchanan represented the Cordova family in the lawsuit. In that case Cristyn Cordova was driving her sister and brother and two other passengers on Colorado Boulevard in Los Angeles’s Eagle Rock community. Another driver veered into Cordova’s lane, sending the car into the median, head-on into a tree. All but one of the five people in the car died as a result of the collision. The Cordova family sued the city. The trial court and an appellate court dismissed the claim, ruling as other courts have that municipalities should be liable only if public property (the tree, in the Cordova case; in the Warshawsky case, the median) caused the accident. The state supreme court, however, rejected that logic, stating that the tree was the cause of the injury, thus the city was liable.

The decision opened the floodgates for plaintiffs looking to blame municipalities for failing to correct dangerous conditions of public property, regardless of whether the dangerous conditions caused accidents or not. The judges stated that in order to show liability, plaintiffs must be able to show one of two things: that a “negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition,” or “[t]he public entity had notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Says Buchanan, “The state supreme court’s ruling in Cordova reaffirmed a longstanding California rule that a public entity may be held liable for a dangerous condition of public property even if the negligent or even criminal conduct of a third party also contributed to the injury or caused the underlying accident.”

And while the decision in Cordova opened the city to new lawsuits, Buchanan says Warshawsky’s attorneys have a long, hard fight ahead of them. “Regardless of the law, jurors may believe that a public entity should not be responsible for an accident caused by an impaired driver. In this case, the jurors may believe the marijuana pipe is smoking-gun evidence of the driver’s responsibility for the accident. Even if the condition of the median also contributed to the victims’ harm, a jury may be reluctant to impose liability on the City, no matter what the law says.”