SAN DIEGO - A lawsuit has been filed against the city of San Diego after an accident involving a city garbage truck and a 10-year-old boy.
On Nov. 17, 2011, fourth grader Luke Acuna was riding his skateboard home from Garfield Elementary School when he was struck by a garbage truck on Kansas Street near Meade Avenue.
The driver, Shawn Bailey, was not cited by the San Diego Police Department.
Personal injury attorney Stephen Estey is representing Acuna. He said there are inconsistencies in accident reports taken at the scene and said Bailey is to blame for the accident.
"It blows my mind that this guy is still employed," said Estey.
10News found Bailey has more than 12 traffic violations while on the city clock.
A witness interviewed for the lawsuit said she saw Bailey talking on his cellphone when he hit Acuna.
"He didn't realize he even hit a kid, I tried to get his attention and he was talking on the cellphone," said witness Susana Fausto.
Estey also faults the T-turn that the driver executed when he hit Acuna.
"The city trains drivers to do these turns," he said. "Large carriers like FedEx and UPS don't make T-turns for safety reasons... and the most troubling thing is he's making these turns two blocks from an elementary school when kids are getting out of school. It's basically putting every kid in San Diego at risk with these turns."
Estey shared a transcript of the two-way radio communication recorded on the day of Acuna's accident. In it, city drivers were just learning of the accident and expressed concerns about the T-turns.
The transcription read in part, "Yeah. You know how they be. You have to watch out for them on the skateboards… At the end of the day, on T-turns and all that they put that on, nine times out of 10, they put that on us, last time I was in that class. So, on the T-turns, man, you just have to double, triple watch out… You know, the funny thing about it is you can't see it all before you T-turn, even if you look two, three, four times."
Estey plans to use the new evidence uncovered by his investigators in a lawsuit.
He said there were inconsistencies in the investigation and accident reports filed by the San Diego Police Department.
"My witness was interviewed by police," he said. "She told them the driver was on the phone, but that was never in a police report."
Meantime, 10-year-old Acuna has a long road ahead.
"He literally died on the operating table at Rady Children's Hospital numerous times," said Estey. "He has multiple internal injuries. He will never lead a normal life so to speak. It's important Luke be compensated for a lifetime of medical care he will need. He's just a little boy."
Estey said Acuna was wearing his helmet and a friend said he saw Acuna look both ways before entering the intersection.
"I have my good days and bad days," said Acuna, who is now learning to walk again without one of his legs. Crutches work for short walks but he mainly uses a wheelchair.
He said experiences "phantom pain" where his leg used to be. It is a condition that is common among amputees.
Acuna also spends most of his time in painful therapy sessions.
"It's hard when they torque on me a lot," he said.
His intestines and bowels were also damaged in the accident and were not repairable. He has undergone more than 50 surgeries and has more down the road. Doctors are not sure if there is enough muscle and tissue for Acuna's body to accept a prosthetic leg.
But the 10-year-old, whose greatest love in life is playing sports, remains hopeful. Acuna was an avid skateboarder and excelled in soccer and football before his accident. He wants to compete in the Paralympics someday.
Acuna's father said skateboarding was a privilege that Acuna earned.
"He earned it on that particular day and he asked to ride it to school, so we let him," Acuna's father said.
Now, Acuna has big dreams to ride again.
"I can do it a little bit," he said.
Acuna also has his sights set on something even bigger.
"Since I was a little kid, I wanted to go to Mars," he said. "Now, after my accident, I want to be the first on Mars with a prosthetic foot."
The San Diego City's Attorney's Office and the San Diego Police Department declined to comment citing pending litigation. The city would also not confirm to 10News if Bailey was still employed, although Estey's legal team says he is.