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Zimbra http://brim:180/zimbra/Wprintrmssage?id=96823 Zi m bra jfunderburg@sjgov.org + Font size- FW: C.A. Pares Claims Against PUC in Rail Crossing Accident From:Moses Stites<moses.stites@cpuc.ca.gov> Tue,Nov 29, 2011 10:18 AM Subject:FW:C.A. Pares Claims Against PUC in Rail Crossing Accident To :John Funderburg<jfunderburg@sjgov.org>,Marvin L.Kennix <marvin.kennix@cpuc.ca.gov>,Tom Dumas <tom_dumas@dot.ca.gov> John, As follow up to our telephone conversation this morning,I am sending you the following reference: Please enter this into the administrative/public record for this project and distribute at the Planning Commission meeting for the Munn and Perkins Quarry project. A letter will fallow regarding the CPUC's significant concerns with the traffic impact study and traffic circulation section in the FEIR and DEIR related to at-grade railroad crossings. Thank you. Moses Metropolitan News-Enterprise Wednesday,January 27,2010 Page 1 C.A.Pares Claims Against PUC in Rail Crossing Accident By KENNETH OFGANG,Staff Writer The California Public Utilities Commission's regulatory authority over a railroad crossing does not render it liable for alleged negligence in failing to prevent an accident at the location,the Court of Appeal for this district ruled yesterday. The ruling by Div.Four bars claims by Julissa Millan that the PUC's`control"of the Wilmington Ave.crossing in Carson, and its failure to install a gate there,render it liable for the December 2006 truck-train collision that killed Millan's husband, Union Pacific Railroad Company employee Jeremy Salinas. " ' The decision allows Millan to go forward with her claim that failure to install the gaze violated a mandatory duty on the part of the commission.She is also suing the railroad,the trucking company,the City of Carson,CalTrans,and others. The accident occurred when a truck driven by Wilson Tubalado for Associated Consolidators Express collided with a train, pinning Salinas—who was operating the train by remote control while riding in the outside portion of a railcar—between the truck and the railcar.He died days later. Millan's complaint asserted that the PUC is liable under Government Code Secs. 830(c) and 835,which make public entities generally liable for dangerous conditions on property they own or control. The complaint also alleged liability for breach of a mandatory duty under Sec.815.6. The railroad crossing constituted a dangerous condition,the complaint alleged,because the PUC failed to implement a 1989 recommendation,resulting from a multi-agency field review,that a gate be installed.The PUC placed the proposal on a priority list of projects for which federal funding would be sought,but the project was not funded and was removed from the list six years later. The commission argued in its motion for summary judgment that it did not own or control the crossing. Los Angeles Superior Court Judge William Barry disagreed saying the commission arguably could have prevented the accident by either installing the gate or closing the intersection to vehicular traffic entirely. Justice Thomas Willhite,however,writing for the Court of Appeal,said the PUC did not control the crossing as a matter of law. Regulatory authority does not constitute control,the justice said, citing Oratman v. Alameda County Flood Control eta D%St:(1986)183 Cal.App.3d 424,in which the court held that a flood control district was not responsible for the escape of water from a culvert located under the landfill on which the plaintiff's home was built. The court said in that case that while the district was responsible for inspecting the culvert and approving work done on it, this did not amount to control,as might be the case if the district had assumed maintenance responsibility itself. 1 of2 11/29/2011 2:57 PM