A judge has denied a second request to include punitive damages in a lawsuit filed against an elderly driver who crashed into 6-year-old twin brothers on a sidewalk in downtown Menlo Park.
San Mateo County Superior Court Judge Lisa Novak issued the ruling on April 4.
"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, according to court documents.
The plaintiffs, the Cadigan family, filed the lawsuit against Edward Nelson, a 90-year-old Woodside resident at the time of the Oct. 17 crash. His BMW SUV struck the boys 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 had his license suspended by the DMV as a result until it was re-issued 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. Investigators determined Mr. Nelson was not at fault, which calls into question whether the DMV would even have had grounds for suspending his license.
The lawsuit is now scheduled for mediation on April 16.