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‘We’re going to fight this’: Second trip-and-fall lawsuit against San Diego embroils Enhance La Jolla

As a demonstration, Enhance La Jolla's Ed Witt set up caution tape and cones near where a person reportedly tripped and fell.
As a demonstration, Enhance La Jolla Chairman Ed Witt set up caution tape and cones near where a person reportedly tripped and fell on Silverado Street in September 2021.
(Ed Witt)

For the second time this year, the city claims the nonprofit has responsibility in connection with an incident in The Village, but Enhance La Jolla says this time ‘we’re not going to stand for it.’

For the second time this year, Enhance La Jolla has been brought into a trip-and-fall lawsuit in which the organization feels it has no place. This time, the city of San Diego is being sued for an undisclosed amount after a person walking along Silverado Street in The Village tripped on raised decorative pavers, yet the claim was passed to Enhance La Jolla’s insurance carrier.

“We’re mad as hell and we’re going to fight this,” said Enhance La Jolla Chairman Ed Witt. “I don’t feel this is right.”

Enhance La Jolla is a nonprofit that manages The Village Maintenance Assessment District with authority to enhance city-provided services, including landscape maintenance, street and sidewalk cleaning, litter and graffiti abatement and additional trash collection. It also can privately fund and complete capital improvement projects in public spaces, such as trash can upgrades, bench installation, sign augmentation, park improvements, public art, and tree canopies on main thoroughfares.

The reported fall occurred in September 2021 on the sidewalk next to the Empress Hotel. The suit was filed in June.

The city argues that Enhance La Jolla should have identified and “barricaded” the hazard with caution tape and/or cones and notified the city.

“In 2019, Enhance La Jolla Inc. signed a four-year contract with the city to manage operations of the La Jolla Maintenance Assessment District, the boundaries of which include the sidewalk where the alleged incident occurred,” said Leslie Wolf Branscomb, public information officer for the San Diego city attorney’s office. “In that contract, Enhance La Jolla Inc. agreed to regularly maintain all sidewalks consistent with [a] City Council policy and to barricade all sidewalk safety hazards and to notify the city. Plaintiff alleges the sidewalk condition was a safety hazard.”

This raised concrete on Silverado Street is where a trip and fall reportedly occurred.
This raised concrete on Silverado Street is where a trip and fall reportedly occurred.
(Elisabeth Frausto)

A letter this month from the city attorney’s office to the Enhance La Jolla board states that “at the location of the alleged fall, a portion of the sidewalk is elevated. The sidewalk elevation and [a] possible tree root issue was not reported by Enhance [La Jolla] to the city as required by the sidewalk maintenance, tree maintenance and replacement and sidewalk safety hazard provisions of the contract.”

However, Witt said that with “literally thousands” of trip hazards within the MAD’s boundaries, it is “too much for any one person to document.”

But the board still made the effort, he said.

In May, Witt, MAD Manager Mary Montgomery and a representative of the office of City Councilman Joe LaCava — whose District 1 includes La Jolla — walked areas of The Village within the MAD boundaries for three hours to identify potential trip hazards.

“We took almost 100 pictures and have 80-some pages of documentation and the city has done nothing with that,” Witt said.

If the board cordoned off every identified trip hazard in accord with the city’s request, “there would not be a single block on which you could walk the length of the sidewalk,” Witt said.

A demonstration barricade is set up on a sidewalk on Silverado Street in La Jolla.
(Ed Witt)

The MAD signed a “boilerplate contract … that is common with MADs” that indemnifies the city in cases like this, Witt said. But because Enhance La Jolla is not named or otherwise involved in the lawsuit, it should not have been brought into it, he said.

“It would be one thing if we were both being sued, but we’re not mentioned in the lawsuit at all,” he said. “The city assumed they could pass it along to us and our insurance would cover it. The city just denies any liability. … The city attorney is trying to push this off on the MADs and we’re not going to stand for it.”

Paying out on lawsuits “takes money away from the MAD and our ability to enhance The Village of La Jolla,” Witt said.

“We’re shocked at the lack of responsiveness on the part of the city,” Montgomery said. “To know we went to the lengths that we did to identify any hazards and to know the city … threw a claim to our insurance company is just rude.”

Enhance La Jolla’s insurer, Nonprofits Insurance Alliance, recently sent a note to the city stating its reasons why Enhance La Jolla is not responsible for the fall, and the board is waiting for a response.

While Enhance La Jolla is required to “regularly maintain in good condition all sidewalks,” according to the city, it does not have authority or funding to repair sidewalks, Witt said. “The MAD does not pour concrete, we do not repair curbs,” he said. Even if it could, “our annual budget that we collect from property owners is a hair over $500,000. You couldn’t repair half a block for that much.”

Witt said earlier this year that San Diego had more than $17,000 available in the budget for the La Jolla MAD to ease trip-and-fall hazards.

“The mayor came up with these extra funds to help MADs spend that money … so they don’t have to take away funds from other services,” he said in July.

In April, a lawsuit filed against the city stated that in January 2020, a resident was walking on the sidewalk on Pearl Street in La Jolla when she tripped in an empty tree well, fell and hit her face on the sidewalk.

The suit contended the city had removed the tree but did not fill or otherwise fix the hole left behind and failed to ensure the sidewalk was safe to use.

Members of the Enhance La Jolla board discuss a trip-and-fall lawsuit during their April 21 meeting.
Members of the Enhance La Jolla board discuss a trip-and-fall lawsuit during their April 21 meeting.
(Ashley Mackin-Solomon)

Eleven months after the trip reportedly occurred, Enhance La Jolla began a tree-planting project along Pearl Street in collaboration with The Village Garden Club of La Jolla for strategic placement of 21 trees in empty tree wells and dirt patches. The well involved in the lawsuit was among the ones filled with a tree.

The city told Enhance La Jolla that it was of the impression that the group had removed the tree and therefore created the hole, meaning it may share in the responsibility. However, Witt said the tree well had been empty for years.

The suit was settled for $40,000, and Enhance La Jolla’s insurance paid for it, Witt said. ◆