CITY WINS ROUND IN $6 MILLION LAWSUIT
The Bellingham Herald, September 1987

By Dean Kahn
of the Herald staff

The city of Bellingham has won some financial breathing room in an auto-crash lawsuit in which a quadriplegic victim is suing the city for $6 million.

At a pre-trial hearing Tuesday, Whatcom County Superior Court Judge Marshall Forrest ruled that after a jury hears testimony on the city’s alleged liability, then a hearing must be held to determine whether Whatcom County shares any of the blame due to poor county road conditions near the city crash site.

The case is scheduled to go to trial Sept. 29.

Forrest said it doesn’t matter that the county, which used to be a defendant, was dismissed from the case by a Skagit County judge three months after the suit was filed in October 1983.

Dean Brett, a private Bellingham attorney hired to represent the city, said Whatcom County won’t get stuck paying damages in the case. Instead, if any blame is pinned on the county, then the city, if also found liable, will have to pay proportionately less to the victim, he said.

Brett suggested that any damages charged the city should be reduced by one-half to three-fourths to account for what he sees as the county’s share of the blame.

The suit arises from an early morning one-car crash June 28, 1981, an the "s" curve at the north end of Eldridge Avenue, between Gilligan Way and Lindberg Avenue.

Traffic experts agree the station wagon driven by Gary Everson, a 49-year-old Georgia-Pacific Corp. worker, went out of control while in the county. The car then struck a guardrail and snapped a utility pole before crashing into a large, scarred maple tree 12-feet 7-inches off Eldridge Avenue and inside the city limit. Everson died in the crash.

Everson’s son William, the plaintiff in the case, survived but is a quadriplegic. Now 26, he lives with his mother in Vancouver, Wash.

The son obtained a $100,000 insurance settlement from his father’s estate. Forrest ruled Tuesday that the settlement should have included another $40,000, meaning any damages to be paid by the city could be reduced by that amount.

Everson’s attorney, Jeff Grant of Seattle, contends the city is to blame for the son’s injuries because the tree was too close to the roadway, given the hazardous nature of the road and a history of accidents in the area. That history includes the death of an 18-year-old girl in an accident at the same tree five years before Everson’s crash, he says in court documents.

"The cause of the injuries is the tree and the city’s liability is for not doing anything about it," Grant told Forrest.

Grant acknowledged that Gary Everson was drinking and speeding before the crash. The driver’s blood-alcohol level was 0.22, more than twice the 0.10 level at which motorists are deemed too drunk to drive.

William Everson estimates his father was driving about 45 mph before the crash. Two police officers estimate he was driving between 65 mph and 70 mph. The speed limit in the area is 25 mph, and drops to 20 mph in the curve.

The city contends it is not liable for the son’s injuries because he chose to ride along with his intoxicated father.

"The city of Bellingham is not obligated to design its road so as to guarantee that no harm will come to any passenger no matter how careless or reckless his driver may be," Brett argues in court papers.

Grant says the county’s portion of the road was defective. Though the defects didn’t cause Everson’s accident, the city should have removed the tree from the path of vehicles experiencing troubles on the county road, he told Forrest.

Grant cited a Feb. 7, 1980, memo from City Engineer Tom Rosenberg to then Mayor Ken Hertz that describes Eldridge Avenue as possibly the most dangerous stretch of roadway in the city.

However, the memo refers specifically to problems with intoxicated drivers, including any leaving the nearby Cocoanut Grove night club, 710 Marine Drive.

"It is impossible to design safety installations to mitigate the actions of an intoxicated driver," the memo reads. "Frankly, we are frustrated and worried for it is only a matter of time before a serious injury or fatality could occur."