Bonner v. City of Menlo Park

Filed 6/18/08 Bonner v. City of Menlo Park CA1/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Plaintiff Kathleen Bonner sued defendant City of Menlo Park for personal injuries she sustained when she was struck by a truck. She appeals from a judgment in favor of the City of Menlo Park. Bonner correctly argues that the trial court erred in finding as a matter of law that the sole cause of the accident was the negligence of the truck driver. Accordingly, we reverse the judgment and remand the matter for further proceedings.

FACTUAL AND PROCEDURALBACKGROUND

This action arose from an accident that occurred on January 5, 2005, some time after 5:00 p.m. at dusk, when a truck, being driven by Shaughnessy McGehee, struck plaintiff Kathleen Bonner as she was crossing a marked crosswalk on Menlo Avenue at the intersection with University Drive in the City of Menlo Park (the city).

The intersection was controlled by four way stop signs. University Drive runs generally north and south. North of the intersection, University Drive has three lanes, one northbound and two southbound; the easterly southbound lane is for left turns only. Menlo Avenue generally runs east and west, but it does not cross University Drive in a straight line. The eastern portion of Menlo Avenue intersects with University Drive about 40 to 50 feet south of the stop signs controlling southbound traffic on University Drive. Thus, a southbound driver turning left from University Drive onto eastern Menlo Avenue like McGehee would have to travel about 87 feet passing in front of two lanes of westbound traffic on Menlo Avenueone turning right and the other turning leftto a location where he could actually turn his vehicle left, then cross one lane of northbound traffic on University Drive to enter onto Menlo Avenue.

The following facts are taken from various submissions of the parties, including portions of the deposition testimony of Bonner and McGehee, declarations of Theresa Boer, a witness to the accident, the declaration of Robert F. Ryan, Bonners retained highway traffic engineer, and the declaration of Charles Taylor, the citys transportation manager.

Bonner was walking in the crosswalk of the eastbound lane of Menlo Avenue when she was struck by McGehees truck as he turned left from the southbound lane of University Drive. According to Bonner, she did not begin to cross Menlo Avenue until after she saw McGehees truck stop at the stop sign for southbound traffic on University Drive.

McGhee confirmed that he came to a complete stop at the stop sign, with his headlights and left turn indicator light on. Most of the other vehicles on the road also had their headlights on. Having never recalled traveling through the intersection before that day, McGehee found the intersections configuration confusing because the stop sign controlling his traffic was located some distance from the actual location where he would have to cross University Drive to enter onto Menlo Avenue. According to McGehee, the westbound traffic on Menlo Avenue and the northbound traffic on University Drive were ignoring that he was a participant in the intersection. Because he had to enter the intersection from so far back and it was somewhat hard to see at that time of day, McGehee approached the location for his actual turn at under five miles per hour, creeping forward and hesitating twice to ensure that the other traffic at the intersection would allow him to make a left turn. He did not know how long he crept forward before he started to actually turn his vehicle left. He stopped long enough to allow one car from westbound Menlo Avenue to turn onto University Drive, and he stayed for a few moments looking at the car facing him on University Drive, and when he was positive it was not going to come into the intersection, he made his turn. Although he glanced towards the crosswalk on Menlo Avenue several times while he was maneuvering through the intersection, he also kept looking at the traffic facing him on University Drive. McGehee asserted that the failure of at least two vehicles to yield to him distracted him as he was attempting to turn onto Menlo Avenue. McGehee did not remember if, after he committed to turning onto Menlo Avenue, he looked in the area of the crosswalk before he actually started making his left turn. When asked if anything was blocking his view of any pedestrians crossing Menlo Avenue, McGehee replied, After looking at the cars so long here, [he did not] know how well [he] was able to see, but [he] looked so [he did not] know. As McGehee began to make his left turn onto Menlo Avenue, he looked to his left but he did not see anyone until all of sudden he saw Bonner right in the trucks headlights and with one arm up in the air. At the same time McGehee saw Bonner, he slammed on his brakes but in less than a second he struck her and it looked like she was just swept away.

Theresa Boer, a witness to the accident, submitted conflicting declarations as to her observations. In her first declaration, prepared by Bonners counsel, Boer asserted that at the time of the accident, she was stopped behind another vehicle in the left turn lane on westbound Menlo Avenue at its intersection with University Drive. She was planning to make a left turn onto southbound University Drive. While she was stopped, she saw a truck coming from the southbound direction of University Drive. She did not see the truck before it reached the stop sign on University Drive. However, after the truck passed the stop sign, she saw it continuing to travel straight forward for several feet southbound on University Drive, then initiate and complete a left turn. This entire straight forward movement and subsequent turn was in one fluid motion at a constant fast rate of speed and without slowing or stopping until the truck struck the pedestrian. From the time Boer first saw the truck until it struck the pedestrian, it was traveling at the same constant fast rate of speed.

In a second declaration prepared by the citys counsel, Boer asserted that after she re-read her earlier declaration, she realized that it was not one-hundred percent correct. Instead, she now asserted: The [earlier] declaration . . . implies that I saw the truck coming from near the stop sign on University Drive for southbound vehicles which was located some distance from where I was situated. In fact, that is not a true statement. I first saw the truck when it was approximately opposite my location. After I first saw the truck, I noticed that it was turning onto Menlo Avenue heading in an easterly direction, when it struck the pedestrian, Mrs. Bonner. I do not recall if the truck stopped in the intersection, or not. After reviewing a diagram McGehee had marked as the location of his stop before turning left onto Menlo Avenue, Boer asserted that the marked location was the same location where she remembered first seeing McGehees truck before it turned left. She did not see the truck before it reached the marked location.

Bonner claimed pursuant to Government Code section 835 that the city was liable for the accident[1] by creating a dangerous condition for pedestrians at the intersection. To establish liability under that statute, a plaintiff must prove that: (1) the public property was in a dangerous condition[2] at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) the public entity either had actual or constructive notice of the dangerous condition in sufficient time before the injury to have taken measures to protect against the dangerous condition, or a public employees negligence, wrongful act or omission created the dangerous condition. (Gov. Code,  835.)

Bonners theory of liability against the city was that its placement of the stop sign on University Drive caused drivers intending to turn left onto eastbound Menlo Avenue (like McGehee) to become confused when dealing with opposing traffic on University Drive, traffic entering University Drive from Menlo Avenue, and pedestrians (like Bonner) crossing at Menlo Avenue. As explained by Bonners retained highway traffic engineer Richard F. Ryan: [T]he crosswalk . . . Kathleen Bonner was using at the time she was struck by . . . McGehee was in a dangerous condition at the time of her accident because pedestrians using the crosswalk were exposed to an unacceptably high risk of being struck by southbound vehicles intending to make a left turn onto eastbound Menlo Avenue. Ryan noted that during the years 1997 through 2005, nine of the 22 accidents at the intersection involved southbound University Drive vehicles striking pedestrians at the end of their left turns on Menlo Avenue. Ryan opined that the only conclusion that could be reached based upon the high rate of pedestrian accidents at the crosswalk was that southbound motorists using University Drive intending to turn left onto Menlo Avenue [like McGehee] have too long of an unrestricted left turn movement and/or too confusing a situation presented by the intersection layout to keep an effective lookout for pedestrians using the eastern most north/south crosswalk.

In seeking summary adjudication dismissing the cause of action based upon a dangerous condition, the city conceded, for the purposes of the motion only, that the intersection where Bonner was injured constituted a dangerous condition insofar as the stop sign at University Drive for cars turning left from University Drive onto eastbound Menlo Avenue was offset too far away from eastbound Menlo Avenue, thereby causing confusion by making it difficult for drivers and pedestrians to see each other; that the type of accident that occurreda southbound vehicle turning left onto Menlo Avenue striking a pedestrian in the crosswalk on Menlo Avenuewas foreseeable; and that the city had sufficient notice of the dangerous condition to have corrected the dangerous condition. The city also conceded that [h]ad McGehee simply pulled into the intersection and turned left onto Menlo Avenue after stopping at the stop sign on University Drive, it would not be filing a motion for summary judgment because in that scenario, Bonner could argue that the [c]itys negligent design with the offset traffic sign may have been a substantial factor in causing the accident because it interfered with McGehees view of the crosswalk, and that as such, the [c]ity may not escape liability just because some other person was also a substantial factor in causing the accident.

The city argued, however, that it was entitled to dismissal because the dangerous condition was not a substantial factor in causing the accident. According to the city, after McGehee passed the stop sign on University Drive, he stopped a second time before crossing northbound University Drive and entering onto Menlo Avenue, and at the stopped location, he could have and should have seen Bonner in the crosswalk and been able to stop his vehicle before striking her. Thus, the city argued that the only substantial factor which caused the accident was McGehees failure to pay attention where he was driving, thereby relieving it of any liability for any purported dangerous condition caused by the stop sign at the intersection. The city also argued that because Boer corrected her first declaration that McGehee had not stopped before turning left onto Menlo Avenue by asserting that she did not know if he stopped before turning left, McGehees testimony that he had made a second stop was undisputed.

In opposing the citys motion, Bonner argued that there was a question of fact as to whether McGehees failure to yield to Bonner was the sole proximate cause of the accident for two reasons: Boers conflicting declarations raised a question of fact regarding whether McGehee had stopped a second time after he passed the stop sign, and even if McGehee had stopped a second time before turning left, a jury could still conclude that the offset stop sign, coupled with the particular configuration of the intersection, was a contributing factor in causing the accident.

The trial court agreed with the city that it was entitled to judgment as a matter of law because there were no triable issues of material fact. The court stated, in relevant part: The undisputed evidence establish[ed] that Mr. McGehee stopped his vehicle a second time in the middle of the intersection prior to making his left turn onto Menlo Avenue. From this vantage point, nothing obstructed his view of the crosswalk. Mr. McGehee then proceeded to complete his turn and his vehicle struck Ms. Bonner, a pedestrian in the crosswalk that spans Menlo Avenue. Thus, as a matter of law the court finds that the stop sign, which was identified by [Bonner] . . . as the dangerous condition and admitted by Menlo Park, for the purposes of this motion to be a dangerous condition, was not a substantial factor in this accident. According to the trial court, reasonable minds can conclude only that the location of the stop sign was not a substantial factor in causing this accident. Once Mr. McGehee stopped his vehicle a second time in the middle of the intersection, any effect of the poorly placed stop sign becomes irrelevant to his actions.

After the trial court entered judgment in favor of the city, plaintiff filed this timely appeal.

DISCUSSION

Because the city was granted summary adjudication in its favor, we review the record de novo. As the moving party, the city bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) In performing our de novo review, we must view the evidence in a light favorable to [Bonner] as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing [the citys] own showing, and resolving any evidentiary doubts or ambiguities in [Bonners] favor. [Citations.] (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) We need not defer to the trial court and are not bound by the reasons in its summary [adjudication] ruling; we review the ruling of the trial court, not its rationale. [Citation.] (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)

The city sought the drastic remedy of summary adjudication on a very narrow ground, namely, whether the concededly dangerous condition at the intersection proximately contributed to the accident. It is the citys contention that even assuming a dangerous condition existed at the intersection, the only substantial factor which caused the accident was McGehees failure to pay attention to where he was driving. The citys argument is unavailing. [T]he issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion. [Citations.] (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.) Given the citys concessions and the evidence presented at the trial court, we cannot conclude that causation can be determined as a matter of law.

By its concessions, the city admitted that the placement of the stop sign on University Drive forced drivers in McGehees position to stop too short of the intersection resulting in those drivers not being able to properly ascertain and give attention to both vehicular traffic and pedestrians in the crosswalk at Menlo Avenue, which circumstance was confirmed by Bonners retained traffic engineer. Additionally, the city did not contend that the intersection was safe except when a driver turning left was negligent. Instead, for purposes of its motion, it conceded that a trier of fact could reasonably find that in light of the dangerous condition created by the city, it was foreseeable that a pedestrian crossing Menlo Avenue was at risk of being injured by a driver who had stopped at the stop sign limit line on University Drive and then executed a left turn from University Drive in one fluid motion without further stopping.

The city contends that the dangerous condition it purportedly created at the intersection ceased to operate once McGehee passed the stop sign limit line and stopped again momentarily in the middle intersection to allow competing vehicular traffic to move through the intersection before he completed his left turn. However, a trier of fact could reasonably find that the dangerous condition created by the city was a concurring proximate cause of the injury because even after McGehee passed the stop sign and committed to making the left turn, he was still forced to concentrate on vehicular traffic thereby distracting his attention away from any pedestrians in the crosswalk on Menlo Avenue. (See Curreri v. City etc. of San Francisco (1968) 262 Cal.App.2d 603, 612.) In other words, a reasonable trier of fact could find that the dangerous condition created by the city continued until it concurred with any purported negligence on McGehees part, thereby causing Bonners injury. (See Feingold v. County of Los Angeles (1967) 254 Cal.App.2d 622, 626.)

The citys reliance on McKray v. State of California (1977) 74 Cal.App.3d 59 (McKray), and Bartell v. PalosVerdesPeninsula Sch. Dist. (1978) 83 Cal.App.3d 492 (Bartell), is misplaced. In McKray, an inattentive driver caused his car to leave a 12-foot wide lane, cross a 10-foot wide shoulder, straddle a berm two to eight inches high, and proceed partly on the shoulder and partly on the dirt for 75 feet until it struck a concrete abutment. (McKray, supra, 74 Cal.App.3d at p. 61.) Although a traffic expert asserted that a guardrail at the edge of the shoulder would have resulted in a less serious accident, he in no way suggested that the absence of the guardrail contributed in any way to any defective or dangerous condition. (Id. at pp. 62-63.) We concluded that the offending drivers negligence was the sole cause of plaintiffs injury: No reasonable person could conclude that any risk of injury existed to one using the highway with due care in a manner in which it was reasonably foreseeable that it would be used. This is not a mere momentary miscalculation or lapse on the part of the human agent (Curreri v. City etc. of San Francisco[, supra,] 262 Cal.App.2d [at p.] 612) against which the state may be required to guard in designing its highways. (McKray, supra, 74 Cal.App.3d at p. 63.)

Unlike the situation in McKray, in this case, the city conceded it was reasonably foreseeable that a pedestrian crossing Menlo Avenue was at risk of injury from a driver who stopped at the stop sign limit line and then executed a left turn from University Drive. Additionally, a drivers momentary miscalculation or lapse while attempting to make a left turn from University Drive onto eastern Menlo Avenue would have potentially much greater consequences than the situation at issue in McKray.

In Bartell, plaintiffs son suffered fatal injuries when he fell while riding a skateboard in defendants schoolyard. (83 Cal.App.3d at p. 496.) The child had gained access to the schoolyard either through an unlocked gate or a hole in a fence. (Ibid.) Plaintiffs argued that the alleged defective condition of the fence or the unlocked gate, viewed in conjunction with allegations of the known use of the schoolyard for the dangerous skateboard game, constituted the dangerous condition necessary for recovery under Government Code 835. (83 Cal.App.3d at p. 496.) The Bartell court disagreed, concluding that the alleged defects in the property merely allowed access to the area, and as such they go to the question of the school districts duty of supervision and control, if any, over its property, and not to the existence of a dangerous condition. The injuries were the direct result of the dangerous conduct of plaintiffs son and his companion and not of any defective or dangerous condition of the property. (Bartell, supra, 83 Cal.App.3d at p. 497.) Unlike the situation in Bartell, in this case a trier of fact could reasonably conclude that the citys creation of a dangerous condition at the intersection was directly related to McGehees conduct.

We agree with Bonner that this case is more analogous to the situation in Bakity v. County of Riverside (1970) 12 Cal.App.3d 24 (Bakity). In Bakity, plaintiff was injured when the car in which he was a passenger was struck by a car that failed to stop at an intersection. (12 Cal.App.3d at pp. 28-29.) Plaintiff brought suit against the County of Riverside on the ground that the accident was caused by a dangerous condition at the intersection. (Id. at p. 28.) The Court of Appeal upheld the jurys finding that the county had created a dangerous condition at the intersection by improperly placing the stop sign 36 feet from the place where traffic was supposed to stop, and because shade from nearby trees made the stop sign difficult to see. (Id. at pp. 29-32.) The court specifically rejected an argument that the offending drivers failure to stop was, as a matter of law, the sole proximate cause of the accident. (Id. at p. 31.) The court explained: [I]t is not necessary for plaintiff to establish that the dangerous condition was the sole cause or exclusive cause of the accident. [Citation.] Negligence of a third person does not, as a matter of law, exonerate the public entity. [Citation.] The intervening or concurrent negligent act of a third person does not break the chain of causation provided the dangerous condition contributed in some way to the injury. [Citations.] In the instant case there was substantial evidence of the existence of a dangerous condition. Whether [the offending driver] was negligent in failing to stop, and, if negligent, whether his conduct was a superseding cause were questions of fact for the jury. [Citations.] . . . [T]he jury could have reasonably found that defendants maintenance of a dangerous condition concurred in or contributed to the accident. (Id. at p. 32.)[3]

We therefore conclude that even if McGehees conduct in traversing the intersection was negligent, a reasonable trier of fact could find McGehees conduct was a direct consequence of the concededly dangerous condition that the city permitted to exist at the intersection and that, but for the dangerous condition, McGehee would have been able to give adequate attention to both vehicular traffic and pedestrians in the crosswalk on Menlo Avenue. Consequently, the trial court erred in finding as a matter of law that the citys conduct was not a substantial factor in causing Bonners injuries and that McGehees conduct was the sole proximate cause of the accident.

Our determination should not be read as expressing an opinion about the ultimate merits of the matter. We hold only that a triable issue of material fact regarding causation exists and the city failed to establish its entitlement to judgment as a matter of law.

DISPOSITION

The judgment in favor of the City of Menlo Park is reversed, and the matter is remanded for further proceedings. Plaintiff is awarded costs on appeal.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] Although Bonner also sued McGehee, her allegations against him are not before us on this appeal.

[2] The Government Code defines a dangerous condition as 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 and in a manner in which it is reasonably foreseeable that it will be used. (Gov. Code,  830, subd. (a).)

[3] The citys attempt to distinguish Bakity is not persuasive. It argues: Although the Bakity court acknowledged that whether a given set of the facts and circumstances creates a dangerous condition is usually a question of fact, it then stated that the question of causation can be resolved as a question of law if reasonable minds can come to but one conclusion. (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30.) However, the quoted portion of the Bakity courts decision does not concern the question of causation but relates only to the creation of a dangerous condition. Thus, the Bakity court stated: Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. (Id. at p. 30.) The Bakity courts discussion of proximate cause is set forth above.