A teen driver – not Parlier Unified School District – is responsible for the death of 9-year-old Diego Estrada, who was run over two years ago while walking to school in dense fog, the district’s lawyer said Monday in opening statements of a wrongful death civil trial.
In trying to absolve Parlier Unified of liability, Fresno attorney Daniel Wainwright also said Diego was killed on a public city sidewalk – not on school property.
But the first witness in the trial, former Parlier Unified Assistant Superintendent Juan Sandoval, told a Fresno County Superior Court jury that he warned his bosses months before Diego was killed that it was unsafe for children to walk to school in the fog.
Sandoval testified that Supt. Gerardo Alvarez and the school board ignored his warning and later fired him for voicing his concerns.
On the first day of the trial, lawyers agreed that 17-year-old Jesus Maciel lost control of his father’s pickup, hit a wall, jumped onto the sidewalk and ran over Diego and injured his 16-year-old sister, Zujey Ramirez, and their friend.
Diego died at the scene of the Jan. 29, 2015, collision and Maciel was arrested on a misdemeanor vehicular manslaughter charge and later sentenced to 150 days in a juvenile detention center.
Diego’s family is seeking damages from Parlier Unified and Maciel for wrongful death and negligent infliction of emotional distress. They also are seeking damages for Ramirez, who held her brother’s hand and watched him die, said Fresno attorney Nicholas “Butch” Wagner, who represents Diego’s family.
Diego was a fourth-grader at Brletic Elementary School, which is on the Parlier High campus. His sister was a junior at Parlier High. They were stuck about a mile from school.
Jurors in Judge Jeffrey Hamilton’s courtroom have to decide whether Parlier Unified’s attendance policy put Diego and other children at risk on foggy days.
Alvarez, who lost his job after a Fresno County grand jury report in 2015 found the district had misused millions of dollars, could be a key witness. Wagner told the jury that Alvarez has been subpoenaed, but likely won’t show up. Wainwright said Alvarez will testify.
In opening statements, Wagner said Parlier Unified had an ulterior motive for urging children to walk to school on foggy days: Alvarez and school board trustees wanted to maximize state funding for Average Daily Attendance, known as ADA.
Wagner said the district’s policy forced Diego and other students to walk to school on foggy days even when school buses were grounded. That’s because students would be given an unexcused absence if they didn’t show up to school on a foggy day, Wagner said.
The threat of getting an unexcused absence placed Diego and other children in an unsafe situation that led to him being struck by a pickup and killed, Wagner said.
“It’s so dangerous that big buses with professional drivers won’t drive in it,” Wagner told the jury. “So why did they think it was OK for children to walk to school in it?”
The belief that he had to go to school, even in the fog, prompted Maciel to borrow his father’s pickup after the school bus failed to pick him up, said Fresno attorney Joe Cooper, who represents Maciel, now 20.
In court, Diego, his sister and Maciel were described as good students. On the day of the accident, Maciel was working on a science project and didn’t want to let his team down, so he took his father’s truck without permission, Cooper said. Diego, who normally takes the bus, and his sister, who typically walks to school, asked a neighbor for a ride to school, Wainwright said. When the neighbor was unable to help, they decided to walk to school together after getting permission from their mother, Wainwright said.
But on the way to school, they were hit by Maciel around 9:30 a.m. at Tuolumne Street and Madsen Avenue. On the witness stand, Maciel recalled losing control of the pickup. He then saw three people lying on the street. He said he tried to render aid to Diego, but the boy was dead. He said he then called police.
“He was so distraught he punched the pickup,” Cooper told the jury. “He thought he had to go to school. He wanted to go to school.”
Wagner said a key piece of evidence is a letter Alvarez sent to parents a day after Diego was killed. The letter told them that students would not be penalized for being tardy or absent because of the fog. The letter, Wagner said, was the first time Alvarez had put in writing that parents could keep their children at home on foggy days. “He wrote it to cover his tracks,” Wagner said.
Wainwright said students are encouraged to attend school every day, but the district has never forced them to come in the fog or put their lives at risk. Wainwright said before Alvarez sent the letter to parents, there was an “unwritten policy” or “understanding” within the district that children would not be penalized if they failed to come to school on foggy days.
He said parents and students had a clear understanding of the unwritten policy. In fact, Diego’s mother, Angela Hernandez, once kept Diego home from school when it was foggy and he didn’t get in trouble for missing school, Wainwright told the jury.
Sandoval, however, testified that other parents complained to him that they were confused about the district’s attendance policy on foggy days. He said he told Alvarez and other administrators about his concerns, but they ignored them. Instead, Alvarez told administrators at the meeting to maximize student attendance, Sandoval testified.