Dickey v. City of
Filed 2/27/12 Dickey v. City of La Habra CA4/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
KATHLEEN DICKEY et al.,
Plaintiffs and Appellants,
v.
CITY OF LA
HABRA,
Defendant and Respondent.
G044486
(Super. Ct. No. 06CC12528)
O P I N I O N
Appeal from a judgment
of the Superior Court
of Orange
County, Robert J. Moss, Judge.
Affirmed.
Law Offices of Gregory
F. Stannard and Gregory F. Stannard for Plaintiffs and Appellants.
Jones & Mayer and
Harold W. Potter for Defendant and Respondent.
Kathleen
Dickey and her husband, Charles R. Dickey,[1]
appeal from a judgment in favor of the City of La Habra
(the City), in this personal injury
action. They alleged the crosswalk
where Kathleen was struck by a car constituted a dangerous condition of public
property. The jury returned a special
verdict finding the crosswalk was not a dangerous condition. On appeal, the Dickeys contend: (1) the trial court erred by admitting
evidence the accident was a “hit and run”; (2) testimony by a defense witness
on redirect examination was inadmissible; and (3) the trial court erred by
denying their new trial motion. We find
no error and affirm the judgment.
FACTS & PROCEDURE
In the summer of 2005,
the City sponsored a summer concert series in a park. Charles, who worked during the day as a
school crossing guard, frequently assisted with traffic control at the
uncontrolled intersection of Second Street
and Euclid Avenue where concert
attendees crossed Euclid Avenue
to get to an overflow parking area. On August 18, 2005, Kathleen accompanied
her husband, as she had on three prior occasions. Although there was not a marked crosswalk at
the intersection, about a dozen 24-inch traffic cones were placed where
pedestrians were meant to cross Euclid Avenue at what was a normally unmarked
crosswalk.
At about 7:45 p.m., when it was dusk but not yet dark,
Charles realized his City-provided flashlight was not working. Kathleen agreed to go across Euclid
Avenue to find the person who had given Charles
the flashlight to get it fixed. Kathleen
was wearing Charles’s bright yellow windbreaker jacket bearing La Habra Police
Department patches. Charles went into
the crosswalk first holding up his stop sign, with Kathleen right behind
him. Charles crossed the northbound
lanes and stopped when he got to the center of the street, where he had a clear
vision of vehicles coming southbound on Euclid Avenue
for hundreds of yards. Kathleen looked for
traffic as she continued to cross the street and saw a southbound car coming
towards her. At trial, Kathleen
testified the car was about four or five car-lengths away when she stepped out
into its path, but at her deposition (which was read into evidence), she
testified it was about 20 car‑lengths away. The car was not going particularly fast (Euclid
Avenue is a 40 miles per hour street), so Kathleen
thought it was going to stop. She
continued to cross the street. The car
did not stop—it struck Kathleen, causing her serious injuries.
The car did not stop
after hitting Kathleen either. Kathleen
recalled hearing her husband yelling, “‘[He] hit my wife. Call the police. He’s getting away.’” Apparently someone followed the car, driven
by 87-year-old Souchang Wang, to his nearby residence. Wang passed away before the 2010 trial.
The Dickeys presented
expert testimony from David Royer, a retired traffic engineer. He testified the City should have provided
warning to motorists a special event was taking place and pedestrians would be
crossing the street. Royer believed the
warnings should have been made of reflective material placed 500 feet in
advance of the crossing area. He felt
flares should have been used for pedestrian control during the day or night and
parking on the street should have been prohibited within the area. Royer testified it was inappropriate for the
City to use a school crossing guard for traffic control—a uniformed traffic
officer should have been used.
On cross-examination,
Royer testified he reviewed the California Vehicle Code and the California
Manual on Uniform Traffic Control Devices (MUTCD), and no other materials, in
forming his opinions. The MUTCD
contained no guidelines on setting up a temporary crosswalk for a special
event. Royer agreed it was appropriate
for the City to have some type of crossing guard at the location. There was nothing mandating how the City
should set up traffic controls for a special event, and it was all
discretionary on the City’s part.
The City’s expert
witness, traffic engineer Weston Pringle, agreed neither the MUTCD or the
Vehicle Code had guidelines on how to set up a temporary crosswalk for a
special event. He opined the manner in
which the crosswalk was coned off was adequate for the conditions. The placement of the cones, presence of a
crossing guard, and the fact this was a visible intersection adequately
notified southbound traffic a crosswalk was present. A pedestrian always has the right of way
whether in a marked or unmarked crosswalk.
Pringle believed the placement of the cones and presence of a crossing
guard was a good plan on the City’s part.
The cones would be readily apparent to a motorist traveling southbound
on Euclid Avenue from at
least 400 to 500 feet away. The stopping
distance for a vehicle traveling the speed limit of 40 miles per hour,
including reaction time and braking distance, would have been about 280
feet. Neither the MUTCD nor the Vehicle
Code prohibited using a school crossing guard at the location.
La Habra Police Officer
Kim Razey testified she interviewed the driver, Wang, shortly after the
accident. Razey had encountered Wang
about a year earlier when she took a report about a noninjury traffic collision
in which he was involved. Razey did not
believe Wang was coherent based on his recollection of the current
incident. Razey did not believe Wang was
able to safely operate a vehicle, a conclusion she reached based on Wang’s
inability to see the pedestrians or vehicles parked along the road and his
“inability to even understand what had occurred at the collision scene.” The court took judicial notice, and the jury
was informed, of the fact that on January 17, 2006, Wang pleaded guilty to
“failure to stop at an accident, hit and run with injury . . . .”
The Dickeys filed a
personal injury action against the City in December 2006. In 2007, the City filed a cross-complaint
against Wang for indemnification, although there is no indication it was ever
served, and the City dismissed the cross-complaint with prejudice in April
2011.[2] The jury returned a special verdict and
answered in the City’s favor on question No. 1, finding the crosswalk was not
in a dangerous condition. Accordingly,
the jury did not proceed to answer any subsequent questions on the special
verdict form. Judgment was entered for
the City. The Dickeys’ motion for new
trial was denied.
DISCUSSION
Motion in Limine: “Hit and Run”
The Dickeys contend the
trial court erred by allowing the City to introduce evidence Wang was a “hit
and run” driver. We find no error.
Before trial, the
Dickeys filed a motion to prohibit the City from making reference to Wang being
a “hit and run” driver. They asserted
the evidence was irrelevant, “highly inflammatory[,] and demonstrably false . . . .” The trial court denied the motion.[3]
The trial court’s ruling
on a motion in limine is reviewed for abuse of discretion. (Piedra
v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) It is not entirely clear what the Dickeys
wanted below—to merely prohibit the City from using the term “hit and run” in
reference to Wang’s driving or to exclude all evidence concerning Wang’s
driving conduct and in particular that he did not stop after hitting
Kathleen. We assume from the tenor of
their argument on appeal that it was the latter. We cannot say the trial court abused its
discretion by denying the Dickeys’ motion.
Preliminarily, we reject
the Dickeys’ suggestion the trial court was confused about who were the parties
to this litigation. They argue the court
obviously thought Wang was a defendant in this case, when he was not, and for
that reason ruled the evidence admissible.
The Dickeys’ argument is premised on the court’s comment their motion
was to “exclude evidence of or comment on the reference to a hit and run by the
defendant.” They insist the court meant
the motion was to exclude evidence “the defendant” (i.e., Wang) committed a
“hit and run.” We reject the Dickeys’
contention. If the court’s reference to
“the defendant” was indeed intended to refer to Wang, then the court was likely
referring to Wang as a criminal defendant in the prosecution against him for
hit and run driving. It is equally
plausible court’s intended comment was that the Dickeys’ motion was to preclude
evidence or comment “by the defendant” (i.e., the City) that the accident was a
“hit and run.” In any event, there is
absolutely nothing suggesting the trial judge was not well aware of who the
parties were in the action before it.
We turn to the more
cogent argument put forth by the Dickeys.
They assert evidence concerning Wang’s driving conduct and that he fled
the accident scene (i.e., was a hit and run driver), had no bearing on whether
there was a dangerous condition and was therefore irrelevant to the case. (Evid. Code, § 350 [only relevant
evidence is admissible].) We agree with
the Dickeys’ premise but not their conclusion.
A public entity is liable for injury proximately caused by a dangerous
condition of its property if the dangerous condition created a reasonably
foreseeable risk of the kind of injury sustained, and a negligent or wrongful
act or omission of an employee of the public entity created the dangerous
condition. (Gov. Code, § 835,
subd. (a).) A “dangerous condition”
is “a condition of property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is reasonably
foreseeable that it will be used.”
(Gov. Code, § 830, subd. (a).)
To constitute a dangerous
condition, an injured plaintiff need not prove the public “‘property was
actually being used with due care at the time of the injury, either by himself
or by a third party . . . .’” (Alexander v. State of California ex rel.
Dept. of Transportation (1984) 159 Cal.App.3d 890, 899; see also Bonanno v. Central Contra Costa Transit
Authority (2003) 30 Cal.4th
139, 153, fn. 5; Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707,
718-719; CACI No. 1102 (June 2010 Rev.) [whether public property is in
dangerous condition to be determined without regard to whether plaintiff or
third party exercised reasonable care].)[4]
The
Dickeys are correct that Wang’s driving conduct was not relevant to whether the
crosswalk constituted a dangerous condition.
But they are wrong when they assert that was the sole issue in this
case. “A plaintiff seeking recovery for
a dangerous condition of public property must prove: the property was in a dangerous condition
when the injury occurred; the dangerous condition was a proximate cause of the
injury; the dangerous condition created a reasonably foreseeable risk of the
kind of injury that occurred; and the public entity had sufficient prior notice
of the dangerous condition to enable it to have undertaken measures to protect
against such condition.
[Citation.]” (
92 Cal.App.4th 549, 557.)
Although
not relevant to proving the threshold issue of whether the crosswalk
constituted a dangerous condition, evidence concerning Wang’s driving conduct
and that there was a hit and run was highly relevant to causation and
apportionment of fault. Indeed, the jury
was instructed the City claimed Wang’s negligence was a substantial factor in
causing the Dickeys’ harm. (See Alexander, supra, 159 Cal.App.3d at p. 901 [public entity may
assert plaintiff or third-party negligence as a defense].) The
jury was instructed extensively on the duty of care owed by drivers to
pedestrians, including that drivers must keep a lookout for pedestrians,
obstacles, and other vehicles, control the speed and movement of their
vehicles, and yield to pedestrians in a marked crosswalk or unmarked crosswalk at an intersection. That Wang was oblivious to his surroundings
as he drove, so much so that he struck a pedestrian and continued driving home
completely unaware he had hit someone, was highly relevant to whether he
breached the standard of care.
2.
Testimony of Officer Razey
The
Dickeys contend the trial court improperly allowed the City to elicit
inadmissible testimony from its witness, Officer Razey, on redirect examination. We find no reversible error.
On
direct examination, the City’s counsel asked Razey what Wang said to her with
regard to the accident. The court
sustained the Dickeys’ hearsay objection.
The City did not further question Razey on this subject during direct
examination, and it was not addressed during the Dickeys’
cross-examination. On redirect examination,
over the Dickeys’ objections, the City questioned Razey about her impression
Wang was not able to safely operate a vehicle.
It was in the course of this questioning the City successfully elicited
testimony that Wang could not recall what was on Euclid Avenue, was unable to
see the pedestrians or vehicles parked along the side of the road, and could
not understand what had occurred at the collision scene. Razey indicated she believed Wang’s failure
to “stop for the stop sign . . . in the middle of the
roadway” was the cause of the accident.
The Dickeys contend
Razey’s testimony constituted inadmissible hearsay and/or inadmissible expert
testimony. Their argument is unsupported
by any legal analysis or citation to legal
authorities, and for that reason it is waived. (
Cal.App.4th 779, 784-785; Kim v. Sumitomo
Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required to
consider points not supported by citation to authorities or record].) The Dickeys also complain the redirect questioning
impermissibly exceeded the scope of the City’s original direct examination of
Razey. But the extent of redirect
examination is largely within the trial court’s discretion (
45 Cal.4th 863, 921), and the court may allow redirect examination on
matters not covered on cross-examination, in effect permitting the reopening of
direct examination. (Evid. Code,
§ 772, subd. (c); Wegner et al., Cal. Practice Guide: Civil Trials and Evidence,
The Dickeys were not precluded from
conducting further cross-examination of Razey, and they have not shown the
court abused its discretion by permitting the additional questioning.
In
any event, even if the testimony was improper, there was no prejudice. (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [reversible error requires
showing of miscarriage of justice, which occurs “‘only when the court, “after
an examination of the entire cause, including the evidence,” is of the
“opinion” that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error’”]; see
Evid. Code, § 353, subd. (b) [no reversal of judgment based on erroneous
admission of evidence absent showing of miscarriage of justice].) The jury returned a special verdict finding
in the City’s favor on the threshold element of whether the crosswalk
constituted a dangerous condition.
Razey’s testimony concerning Wang’s driving conduct went to subsequent
questions of causation, which the jury never reached.
The
Dickeys contention the trial court erred by denying their motion for a new
trial is similarly without merit. They
moved for a new trial on the grounds Razey’s testimony on redirect examination
concerning her discussions with Wang was inadmissible. “On appeal from an order denying a motion for a new trial, we review the
entire record, including the evidence, and make an independent determination as
to whether the claimed error was prejudicial.
[Citation.]” (
LLC (2011) 198 Cal.App.4th 764, 779.)
As we have already explained, while evidence concerning Wang’s driving
conduct was not relevant to whether the crosswalk constituted a dangerous
condition, it was relevant to causation and apportionment of fault. As the trial court correctly noted, because
the jury returned a special verdict finding there was no dangerous condition,
any error in admitting evidence concerning Razey’s conversation with Wang was
not prejudicial.
DISPOSITION
The
judgment is affirmed. Respondent is
awarded its costs on appeal.
O’LEARY,
P. J.
WE CONCUR:
BEDSWORTH, J.
ARONSON, J.
[1] For convenience only we
refer to the plaintiffs collectively as the Dickeys and individually by their
first names only.
[2] The Dickeys proceeded by
way of an appellant’s appendix, which does not contain the pleadings. Although the Dickeys dispute that a
cross-complaint was filed against Wang, we have reviewed the superior court
file in this matter, and take judicial notice of the City’s cross-complaint
filed December 13, 2007. (Evid. Code, §§
452, subd. (d), 459, subd. (a).)
