Almanac

News - April 16, 2014

Attorneys to appeal decision in lawsuit over crash that hurt 6-year-old twins

by Sandy Brundage

The attorneys representing a Menlo Park family whose 6-year-old twin boys were injured when an elderly driver struck them as they walked on a sidewalk plan to appeal a judge's denial of punitive damages.

San Mateo County Superior Court Judge Lisa Novak issued the ruling on April 4 in response to the Cadigan family's second request for punitive damages.

"The facts as alleged do not suggest defendant's conduct was intentional, despicable or oppressive. Alleging that he was elderly, had been in an accident the year prior, and had his driver's license subsequently 'suspended' and then renewed does not rise to the level of malice, fraud or oppression," she wrote.

Attorney Michael Rose, part of the team representing the family, said they intend to appeal the ruling. He did not go into specifics as to why he thought the ruling should be overturned.

The plaintiffs filed the lawsuit against Edward Nelson, a 90-year-old Woodside resident at the time of the Oct. 17, 2013, crash. His BMW SUV struck the boys in downtown Menlo Park as they walked along Santa Cruz Avenue near Walgreens with a nanny and their older brother.

The crash broke one twin's arm and left the other boy in critical condition; he was released from Stanford Hospital following a five-week stay and multiple surgeries.

The Cadigan family sought punitive as well as general damages for injuries ranging from multiple, extensive skin grafts and lower-body damage; orthopedic and soft-tissue damage to the upper body; and emotional trauma.

A judge dismissed their first request for punitive damages, but allowed the family's attorneys to file an amended complaint. The April 4 ruling prohibits a third attempt.

The amended complaint claimed Mr. Nelson was involved in an accident in Menlo Park on Nov. 8, 2012, and as a result had his license suspended by the DMV until it was reissued in August 2013. Therefore, the complaint alleged, he should have known "it was not safe" for him to drive.

However, as the Almanac first reported, police records show that the 2012 accident involved another driver hitting Mr. Nelson's car when the driver backed out of a parking space near Safeway on El Camino Real. Investigators determined Mr. Nelson was not at fault.

Mr. Nelson's attorneys did not respond to a request for comment. According to their filings, his license was not suspended as a result of the 2012 accident.

While the defense initially claimed the Cadigan children were reckless, careless and negligent, and voluntarily placed themselves in danger, more recent filings describe the family as innocent and entitled to reasonable compensation.

The lawsuit is now scheduled for mediation on April 16.

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