Second witness describes Walker accident: ‘She was invisible’

EDITOR’S NOTE: The Coast News has continued to look into the Roberta Walker bicycle accident due to significant public interest. This does not diminish the tragic nature of this accident. We only seek the truth about the events that led to the largest settlement in Encinitas history.

ENCINITAS — A second eyewitness has come forward to corroborate an earlier first-hand account that a well-known cyclist was not equipped with lights or reflectors when she was struck by a vehicle three years ago in the pre-dawn hours along North Coast Highway 101 in Leucadia.

Independent statements from two onlookers and pages of legal documents indicate the city’s legal team did not present this information as a defense in a personal injury lawsuit that resulted in the largest financial settlement in Encinitas’ municipal history.

At approximately 6:15 a.m. on Dec. 8, 2018, Roberta Walker, a longtime cycling advocate and former executive director at Cardiff 101 Main Street, was riding her bicycle in a “sharrow” lane on North Coast Highway when she was struck from behind by a southbound truck in front of Piercing 101.

The witness, “JD,” who requested his name not be published, was living in a two-story condominium that overlooks North Coast Highway 101 between West Glaucus and Phoebe streets, approximately 100 feet from Walker’s accident site.

The Coast News met JD at his home and walked through the events of that morning.

“I had just woken up,” JD said, who was preparing to go surfing with his girlfriend. “It was wintertime and still pretty dark outside. At that time of the morning, Coast Highway is really quiet. You could hear a pin drop.”

At the time of the accident, JD said he was in his second-floor bedroom when he heard what sounded like breaking glass — a sound he later believed to be Walker’s carbon-fiber bicycle crumpling upon impact with a southbound truck.

“What I heard was the truck hitting her, the initial collision,” JD said. “I heard a woman’s voice scream a split second later. And I heard her scream again when she must have hit the ground. She was launched about 15 or 30 feet.”

After 30 years of living near the highway and hearing numerous accidents, JD said the Walker accident was different because there weren’t any skidding tires, which suggested to him the driver never saw her.

“I had never experienced that with any accident on Coast Highway,” JD said. “There are always skidding tires.”

According to JD, he was on the street in less than a minute and saw a woman standing next to Walker, who was curled into a fetal position, laying on her right side and moaning in pain.

“(Walker) was wearing dark clothing, a dark helmet and riding a black bicycle,” JD said. “This is why I didn’t see or hear the skidding tires because she was invisible.”

Another witness, who reached out to The Coast News over the summer and requested to remain anonymous, also claimed to observe no lights or reflectors on Walker’s helmet or bicycle.

“Roberta had a helmet on,” the other witness said. “I did not see any lights or reflective gear.”

In California cyclists riding in the dark are required by law to have a light on the front of the bicycle or attached to the operator “visible from a distance of 300 feet” and a red reflector or solid or flashing red light with a built-in reflector visible from 500 feet to the rear. Additionally, reflectors are required on each pedal or shoe and on the sides of the bicycle.

JD, who was standing approximately five feet from the driver on the sidewalk, said the man did not appear drunk or visibly intoxicated. The driver was never cited in the accident, according to law enforcement.

As reported in court documents, Walker suffered extensive physical injuries, including traumatic brain injury, fractured skull, spinal and facial fractures, nine broken ribs, a broken clavicle and sacrum, subdural hematoma, impaired mobility and cognition and was placed into a medically induced coma.

A couple of days later, JD said he was returning home from surfing in La Jolla and noticed Sheriff’s deputies with tripods taking pictures in the location where Walker was hit.

“First thing (the deputy) asked me, ‘Did you see any lights or reflectors on her?’ I told him no,” JD said. “(After that), I kept looking in my mailbox, when am I going to get subpoenaed for this, but it never happened.”

Both JD and the other witness said they were never contacted by law enforcement or attorneys representing the City of Encinitas to provide their accounts.

“I’ll testify tomorrow because I want the truth to come out,” JD said. “What kind of a kangaroo court is this where we aren’t interviewing all the witnesses?”

Incident report

The Coast News has requested the San Diego County Sheriff’s Department release Walker’s accident report on two occasions, both of which were denied.

The most recent denial letter cited Government Code sections 625(f) and 625(k), incorporating Vehicle Code section 20012. The letter said the Sheriff’s Department cannot release accident reports except to an “interested party” (driver, guardian, parent of minor driver, vehicle owner, attorneys representing an involved party) and that does not include the media or public.

But JD and many others believe the police report is critical to fully understand what happened that Dec. 2018 morning and may put some theories to rest.

“In the police report, there is going to be evidence,” JD said. “Where’s the transparency? Show us the police report so we can see what actually happened. It bums me out. It’s not the way a city should run.”

The Sheriff’s Department did release a redacted version of the call record for emergency service, which yielded no substantive information.

David Snyder, an attorney with the First Amendment Coalition, confirmed that the Sheriff’s Department is not permitted to release vehicle accident reports under state law. However, Snyder noted law enforcement does have discretion to release subsequent investigative records, especially if there is a strong public interest in viewing information that was the basis for an exceptionally large settlement.

“The formal accident report, or SR-1, is mandatorily confidential,” Snyder said.  “But records that go beyond that are not mandatorily confidential and don’t have to be withheld.”

Design immunity

As previously reported by The Coast News, on May 24, 2019, Santa Ana-based law firm Callahan and Blaine filed a lawsuit against the city of Encinitas on behalf of Walker and her husband, John Paul. The complaint primarily alleged a “dangerous condition of public property.”

The crux of Walker’s allegation rests on allegations the “sharrow” lane is a dangerous condition for cyclists, according to the lawsuit. The plaintiffs claimed that Walker would not have been struck if she was riding in a dedicated bike lane.

Legal filings show the city’s attorneys, Mitchell Dean and Heather Paradis, formerly of Daly & Heft, were preparing a motion for summary judgment on Dec. 9, 2020, based on the principal argument of design immunity, which means a public entity is not liable for any injury caused by the previously approved plan or design.

Earlier this year, Dean and Paradis had successfully argued design immunity on behalf of the City of Encinitas in opposition to a lawsuit stemming from a motorcyclist who was killed after broadsiding a vehicle on Coast Highway 101.

Carter Yarborough, a Valhalla High School cross-country coach, was killed in 2018 after his motorcycle struck the side of a Sheriff’s cruiser turning left into Moonlight Plaza in Encinitas. The judge in the Yarborough case issued a summary judgment in favor of the city, removing it from legal responsibility.

“A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design,” Judge Richard S. Whitney wrote in his ruling.

Whitney also noted that a summary judgment “may be granted based on undisputed evidence that similar accidents have not occurred at the location alleged to have a dangerous condition.”

According to Sheriff’s Department records recently released to The Coast News, there have been a total of six (including Walker) reported vehicle vs. bicycle accidents along Coast Highway 101 between Leucadia and La Costa avenues since 2016.

This newly obtained information suggests that a summary judgment for design immunity may have failed due to similar accidents occurring in the same vicinity as Walker’s accident.

In the Walker case, a motion for summary judgment was scheduled to be filed on or before Dec. 24, 2020, well before the scheduled trial date of April 16, 2021. However, the law firm missed the filing deadline by nearly a week, which it claimed was due to Daly & Heft abruptly dissolving amidst the ongoing court case.

In requesting a continuance with the court, the city’s attorneys noted that in 2012, a city engineer had approved a road design that called for a “sharrow” lane along the same stretch of Coast Highway 101 “with associated signage and markings,” and that the speed limit had been lowered to 35 mph, “based on an engineering survey.”

“Those two approvals, the city argues, satisfy the criteria that would allow the city to have the benefit of design immunity, and the court should allow such a (motion for summary judgment) to be presented, argued and heard,” according to a legal document filed by Daly & Heft.

None of the filings on behalf of the city mention any witness statements or details from the incident report. The Coast News contacted Dean, but he claimed to have “no authority” to speak about the case.

A historic settlement raises more questions

A civil jury trial was scheduled, but on March 9, 2021, Walker’s attorney, Ed Susolik, confirmed to The Coast News the city had reached a settlement agreement of $11 million.

“The reasoning for settling litigation in closed session is not subject to disclosure,” Mayor Catherine Blakespear previously wrote The Coast News.

The $11 million settlement award dwarfed recent settlements related to cycling accidents on North County roadways.

In July, the city of Del Mar paid $3.5 million to settle a lawsuit by the family of Brian Villa, a detective with the Los Angeles County Sheriff’s Department, who died after a 2017 bicycle accident on Camino Del Mar, according to the Del Mar Times.

The following month, the city of San Diego settled a five-year-long lawsuit for $1.75 million to a cyclist who suffered head, shoulder and leg injuries after being thrown from his bicycle while riding over tree-damaged pavement in a Carmel Valley bike lane, according to the San Diego Union-Tribune.

Over the past couple of years, JD said, the entire incident is frustrating and has only raised more questions for him based on the historic settlement amount, past relationships between Walker and several sitting council members, and the apparent lack of interest by law enforcement or attorneys to speak with eyewitnesses on the scene.

“The City Council is supposed to be on the side of the city,” JD said. “They are not supposed to pick sides with residents. If you have a lawsuit, and it’s a whopper, wouldn’t you want to build the strongest defense you could?”