Peltier v.
Transportation
Filed 7/30/12
Peltier v. Cal. Dept. of Transportation CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Plumas)
----
KERRI ANN PELTIER, A Minor, etc.,
Plaintiff and
Appellant,
v.
CALIFORNIA DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
C064499
(Super.
Ct. No. 72988)
An inattentive
motorist (who is not party to this appeal) struck a 14-year-old bicyclist,
plaintiff Kerri Ann Peltier, in a crosswalk on State Route 36 (SR 36)
in Plumas
County. Plaintiff, a minor suing
through her mother Lorri Shafer, as guardian ad litem, alleges that a dangerous
condition of public property (Gov. Code, § 835)
makes defendant California Department of Transportation (the State) liable for
her injuries. Plaintiff appeals from
State, arguing the trial court improperly excluded expert opinion, ruled that
prior accidents were not relevant unless similar, and ruled that negligence by
any user of public property defeats a claim of dangerous condition of public
property.
We conclude
plaintiff fails to show evidentiary error
and misconstrues the trial court’s ruling, which applied the law
correctly. The trial court did not err
when it found no triable issues of material
fact as to the existence of a dangerous condition.
We affirm the
judgment.
Plaintiff filed a
against the State (and others who are not parties to this appeal),
alleging that plaintiff, while riding her bicycle southbound in a crosswalk on
SR 36 just east of the intersection of SR 36 with Aspen Street and
Martin Way, was hit by a motor vehicle traveling eastbound on SR 36.
her, James Davis Branch, was distracted by a logging truck that had pulled out
of a gas station at the intersection of Aspen Street/Martin Way/SR 36 and
was blocking the entrance to Aspen Street, and a pickup truck that turned from
SR 36 onto Aspen Street and/or the gas station premises.
The only claim
alleged against the State was the second cause of action for dangerous
condition of public property.
The complaint alleged SR 36, owned and controlled by the
State, was in a dangerous and defective condition that created a substantial
risk of injury when used with due care in a manner reasonably intended and
foreseeable, in that the intersection of SR 36 with county roads Aspen
Street and Martin Way, “is too busy and confusing, is without any traffic
lights, and near a school and crosswalk; said crosswalk was dangerously and
defectively maintained in that the markings were worn down and not visible, nor
were high visibility markings used on the crosswalk; further the lighting and
visibility of the crosswalk was poor.”
Plaintiff alleged that the State knew the intersection was dangerous
given the traffic volume and the existence of the school, gas station and
crosswalk at or near the area of the intersection. Plaintiff alleged the State
had exclusive control and management of the crosswalk and
roadway/intersection, created the dangerous condition, and/or had notice of it
before this accident. Plaintiff alleged
the State had prior notice of “previous similar collisions in the same general
vicinity due to the defective condition.”
Plaintiff alleged the State’s negligence caused her injuries, including
permanent disability.
The State moved
for summary judgment or, in the alternative, summary adjudication, on the
facts showed no dangerous condition of the State’s property.
The State
submitted a separate statement of undisputed facts, most of which, according to
plaintiff’s response, are undisputed.
The State’s separate statement stated the following:
On
October 10, 2006, around 4:55 p.m., plaintiff was riding her bicycle
southbound across SR 36, a highway that runs east/west, when she was
struck by motorist James Branch, who was driving eastbound in the number
two (slow) lane of SR 36. It was
daylight; the weather was clear; and the road was dry. There is no stoplight at the
intersection. Plaintiff was in
a marked school crosswalk close to the northeast edge of the highway’s
intersection with Aspen Street, a county road.
flat, with nearly unlimited sight distance.
The speed limit is 30 miles per hour. The words “SLOW SCHOOL XING” are painted on
the road approaching the crosswalk in yellow letters eight feet in length. A mast arm extends above the road bearing a
yellow “Advance School” symbol sign, and a yellow “School Crosswalk” warning
sign was posted at the crosswalk.
name="_ftnref5" title="">[5]
Immediately before
the collision, nothing was blocking Branch’s view of the crosswalk. However, his attention was not focused on the
road ahead because he was distracted with what he believed to be a potential
accident involving a logging truck and a pickup truck on Aspen Street.
the road ahead, it was too late, and he hit plaintiff.
Before the
accident, Jeff Bruns was driving a vehicle six to eight car lengths behind
Branch. Bruns saw plaintiff riding her
bike across the crosswalk; nothing blocked his view of her or the crosswalk. Plaintiff did not dispute these facts but
objected that they were irrelevant.
The State
submitted evidence (disputed by plaintiff) that between 1998 (the earliest date
available on the State’s database) and this 2006 accident, no other pedestrian
or bicycle accidents had occurred at or near this crosswalk. The State’s expert traffic engineer,
Richard N. Smith, attested that during that time, over 16 million
vehicles drove through the subject location; there were no other bicycle, pedestrian,
or dismounted pedestrian accidents at or near the subject crosswalk; and the
location complied with standards of the California Manual on Uniform Traffic
Control Devices. Smith opined the
intersection did not create a substantial risk of injury when used with due
care.
Plaintiff objected
to Smith’s declaration insofar as it stated that the location of the accident
was postmile 8.49, contending it had occurred at postmile 8.48. She also contended Smith’s declaration lacked
foundation because he based his calculation of the number of cars passing the
intersection on a broader stretch of roadway (postmiles 8.08 to 8.84, with
no particularity as to whether the 16 million vehicles actually went
through the subject intersection).
Plaintiff also
filed an opposition to the State’s motion for summary judgment and her own
separate statement of undisputed facts, asserting that between March 5,
1997 and April 9, 2005, there were 13 traffic collision reports at
the subject intersection, of which two involved a pedestrian and one involved
a bicyclist; state traffic surveys and accident analyses showed a higher than
average incidence of accidents between SR 36 postmiles 8.33 and 9.18
(which includes the Aspen Street intersection at SR 36
postmile 8.48); motorists and the County viewed the intersection as dangerous;
and the County and State had discussed safety improvements.
Plaintiff
submitted a declaration from her own retained expert traffic engineer,
Harry J. Krueper, Jr., who opined that “high traffic volume, of which the
State of California is aware, creates a dangerous condition and demands a high
proportion of drivers’ attention,” and the angles at which Aspen and Martin
join SR 36 do not provide drivers with as much visibility of cross-traffic
as is provided at conventional right-angle intersections.
The State filed a
reply, a response to plaintiff’s separate statement of undisputed facts, and
objections to plaintiff’s evidence.
name="_ftnref7" title="">[7] The State argued that “[o]nly substantially
similar accidents are relevant,” and plaintiff’s evidence failed to show such
accidents. The State’s expert submitted
a supplemental declaration explaining (1) the center of the intersection
is at postmile 8.48, whereas the crosswalk is at postmile 8.49;
(2) the traffic accident surveys report every accident within 95 feet
on either side of an intersection as being “at” the intersection such that
reported accidents are not necessarily related to the subject crosswalk; and
(3) the accidents cited by plaintiff’s expert were not similar to the
subject accident. Most of the prior
accidents did not involve a pedestrian or bicycle. The accidents cited by plaintiff included: a
westbound rear-end collision between two motor vehicles; an eastbound vehicle
that collided with a vehicle pulling out of Aspen Street onto SR 36; an
eastbound vehicle turning onto Aspen Street that hit a vehicle pulling out of
the gas station; a vehicle pulling out of a parking space on Aspen that hit a
vehicle traveling on Aspen; an accident in which an eastbound vehicle and a
westbound vehicle turning left collided; a vehicle turning onto Aspen that hit
a car parked in five inches of snow; and a collision between an eastbound
vehicle and a westbound vehicle that was turning left onto Martin Way.
The three
accidents involving pedestrians or bicycles were also dissimilar. In an August 8, 2002 accident at the
subject crosswalk, an eastbound vehicle stopped to allow a pedestrian to cross,
and the vehicle was rear-ended by another eastbound vehicle traveling too fast. The pedestrian was not injured. On May 4, 2004, also at the subject
crosswalk, a westbound motorist stopped for a pedestrian and was rear-ended by
another westbound vehicle. While the
pedestrian was on the south curb near the part of the crosswalk where plaintiff
was struck, the westbound driver who stopped was on the opposite side of the
street and was rear-ended there. In
other words, the collision took place on the opposite side of SR 36 than
the collision in this case. (See
Appendix A.) Again, the pedestrian was
not injured. And on July 28, 2001,
a bicyclist riding eastbound on SR 36 was struck by a car backing out of a
parking stall at an intersection west of the intersection where plaintiff was
struck.
The State’s reply
pointed out that visibility was not at issue in this accident because the
motorist who hit plaintiff admitted he had a clear, unobstructed view of
the crosswalk; he simply was not paying attention to where he
was going.
The trial court
sustained the State’s objections to the declaration of plaintiff’s expert
insofar as he opined that the configuration of the intersection,
businesses with a high volume of traffic, and the location of the crosswalk
created a dangerous condition. In its
written ruling granting summary judgment, the trial court said: “Although Plaintiff’s expert goes to great
lengths to discuss the configuration of the intersection, the amount of traffic
generated there, the potential for congestion and ‘pedestrian-related traffic
interactions,’ certain areas with limited visibility and other obstacles to
visibility of both vehicles and pedestrians, increasing visibility of the
crosswalk, and drivers’ ‘reduced opportunity to perceive and react to the
crosswalk,’ none of these issues has any genuine correlation with the subject
accident. In her own response to
Defendant’s separate statement of facts, Plaintiff admits [original
underscoring] that the accident [occurred] in daylight, clear and dry weather
with no unusual conditions (UMF [undisputed material fact] 2); the road was
straight, flat and had nearly unlimited sight distance (UMF 4); signage for the
crosswalk included yellow letters painted on the road, an overhead sign with
beacons and another sign on the shoulder, and was in conformity with standards
(UMF 3, 5-9); Defendant Branch’s attention was not focused on his path of
travel (UMF 13) and when he focused on the road ahead, it was too late to avoid
hitting Plaintiff (UMF 14); nothing blocked Branch’s view of the crosswalk or
Plaintiff as she crossed the road (UMF 15); and that the driver behind Branch
saw both Plaintiff and the crosswalk she was in before the accident occurred
(UMF 17-18). As a result, Plaintiff’s
expert’s declaration has little, if any, relevance, to the one issue raised by
this motion but more importantly, even if admissible, the declaration is itself
undermined by Plaintiff’s own admissions in response to Defendant’s separate
statement of facts. Accordingly, this
Court concludes it does not create a triable issue of material fact.”
The trial court
also concluded that plaintiff’s evidence of prior accidents was inadmissible
because it failed to show the requisite “substantial similarity,” and even if
this evidence was admissible, it was insufficient to establish a triable issue
of material fact given the lack of similarity.
Plaintiff appeals
from the ensuing judgment.
Standard of Review
A motion for
summary judgment should be granted if the submitted papers show that “there is
no triable issue as to any material fact,” and that the moving party is
entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) A defendant meets his burden of showing that
a cause of action has no merit if he shows that one or more elements of the
cause of action cannot be established, or that there is a complete
defense. (Id., § 437c, subd. (p)(2).) Once the defendant has met that burden, the
burden shifts to the plaintiff to show that a triable issue of material
fact exists. (Ibid.)
The burden of
persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850, 861.)
When the defendant moves for summary judgment, in those circumstances in
which the plaintiff would have the burden of proof by a preponderance of the
evidence, the defendant must present evidence that would preclude a reasonable
trier of fact from finding that it was more likely than not that the material
fact was true (Aguilar,
must establish that an element of the claim cannot be established by presenting
evidence that the plaintiff “does not possess, and cannot reasonably obtain,
needed evidence” (id. at p. 854).
On appeal, we view
the evidence in the light most favorable to the party opposing summary
judgment. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337,
1339 (Lane).) We review the record and the determination of
the trial court de novo. (Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) “‘First, we identify the issues raised by the
pleadings, since it is these allegations to which the motion must respond;
secondly, we determine whether the moving party’s showing has established facts
which negate the opponent’s claims and justify a judgment in movant’s favor;
when a summary judgment motion prima facie justifies a judgment, the third and
final step is to determine whether the opposition demonstrates the existence of
a triable, material factual issue. . . .’” (Waschek v. Department of Motor
Vehicles (1997) 59 Cal.App.4th 640, 644.)
Although our
review of summary judgment is de novo, review is limited to issues adequately
raised and supported in the appellant’s brief.
(Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6.)
General Legal Principles of Liability
A governmental
entity is not liable for any injury unless otherwise provided by statute. (§ 815.)
Section 835
provides: “Except as provided by
statute, a public entity is liable for injury caused by a dangerous condition
of its property if the plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and that either: [¶]
(a) A negligent or wrongful act or omission of an employee of the
public entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or
constructive notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition.”
For purposes of
liability under section 835, “‘Dangerous condition’ means 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.” (§ 830, subd. (a).) As this court has observed, there is no hard
and fast rule as to what constitutes a dangerous condition, and “‘each case
must depend upon its own facts.’
[Citation.] A dangerous condition
of public property can come in several forms and may be based on an ‘amalgam’
of factors. [Citation.]” (Salas v.
Department of Transportation (2011) 198 Cal.App.4th 1058, 1069 (
Section 830.2
provides: “A condition is not a
dangerous condition within the meaning of this chapter if the trial or
appellate court, viewing the evidence most favorably to the plaintiff, determines
as a matter of law that the risk created by the condition was of such a minor,
trivial or insignificant nature in view of the surrounding circumstances that
no reasonable person would conclude that the condition created
a substantial risk of injury when such property or adjacent property was
used with due care in a manner in which it was reasonably foreseeable that it
would be used.”
“With respect to
public streets, courts have observed ‘any property can be dangerous if used in
a sufficiently improper manner. For this
reason, a public entity is only required to provide roads that are safe for
reasonably foreseeable careful use.
[Citation.] “If [] it can be
shown that the property is safe when used with due care and that a risk of harm
is created only when foreseeable users fail to exercise due care, then
such property is not ‘dangerous’ within the meaning of section 830,
subdivision (a).”’” (
(2008) 166 Cal.App.4th 1177, 1183 (Sun) [affirmed summary judgment in favor of city where third party
motorist struck pedestrian in unmarked crosswalk].)
“‘Whether property
is in a dangerous condition often presents a question of fact, but summary
judgment is appropriate if the trial or appellate court, viewing the evidence
most favorably to the plaintiff, determines that no reasonable person would
conclude the condition created a substantial risk of injury when such property
is used with due care in a manner which is reasonably foreseeable that it would
be used.’ [Citation.]” (Lane,
p. 1344; accord, Sun,
p. 1183; see also Bonanno v.
Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148 (
dangerous may be resolved as question of law if reasonable minds can come to
but one conclusion].)
Under
section 830.2, trial and appellate courts have a statutory
responsibility to determine whether, as a matter of law, a given defect
constitutes a dangerous condition.
“‘This is to guarantee that [government entities] do not
become insurers against the injuries arising from trivial defects.’ [Citation.]”
(Salas, supra, 198 Cal.App.4th at p. 1070.)
Evidentiary Rulings
We do not consider
on appeal any evidence as to which the trial court has sustained evidentiary
objections unless the party against whom the trial court ruled demonstrates on
appeal that the ruling was improper. (
186 Cal.App.4th 755, 761 (Bozzi);
Badie v. Bank of America (1998)
67 Cal.App.4th 779, 784-785 (Badie).)
Although an
appellate court reviews de novo a trial court’s decision to grant summary
judgment, the weight of authority holds that the appellate court reviews the
trial court’s evidentiary rulings under an abuse of discretion standard. (Carnes v.
Superior Court of Placer County (2005) 126 Cal.App.4th 688, 694.) The State candidly acknowledges case law
questioning whether abuse of discretion or de novo review is the proper
standard where evidentiary rulings are based on paper submissions alone. (Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 535; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th
243, 255.)
For purposes of
this appeal, the two standards are equivalent, because plaintiff mainly argues
the trial court made evidentiary rulings based on “incorrect assumptions
of law.” If a trial court’s evidentiary
ruling is based on a misinterpretation of law (which presents a question of law
subject to de novo review), abuse of discretion has been shown. (Dillingham-Ray
Wilson v. City of Los Angeles (2010) 182 Cal.App.4th 1396, 1403.)
Plaintiff’s brief
challenges the trial court’s evidentiary rulings excluding major portions of
her expert’s declaration and the prior accident reports. However, the basis for most of the challenges
is plaintiff’s claim that the trial court made two “incorrect assumptions of
law” in interpreting the evidence. As we
will explain, plaintiff misapprehends what happened in the trial court.
Plaintiff also
claims the trial court improperly excluded her expert’s opinion as to the
existence of a dangerous condition at or near the crosswalk. She cites authority that stands for the
general propositions that an expert opinion can be “dismissed” only if it is
speculative, lacks foundation, or lacks certainty, and that evidence opposing
summary judgment should be liberally construed.
However, while the trial court found many foundational problems with the
expert’s declaration, including the requirement that evidence of prior
accidents must be substantially similar to be admissible, the court went on to
say that, “even if admissible, these opinions and conclusions are insufficient
to create a triable issue of material fact,” because the expert’s declaration
had little relevance to the one issue raised by the motion “but more
importantly, even if admissible, the declaration is itself undermined by
Plaintiff’s own admissions in response to Defendant’s separate statement of
facts.”
Plaintiff fails to
show abuse of discretion warranting reversal.
“[E]xpert opinions on whether a given condition constitutes a dangerous
condition of public property are not determinative: ‘[T]he fact that a witness can be found to
opine that such a condition constitutes a significant risk and a dangerous
condition does not eliminate this court’s statutory task, pursuant to
. . . section 830.2, of independently evaluating the
circumstances.’ [Citation.]” (Sun,
p. 1189.)
We see no
evidentiary error.
Dangerous Condition of Public Property
According to plaintiff,
the defect in the physical condition of the State’s property was the
“‘distracting and confusing’ configuration of the intersection which
immediately preceded the crosswalk in which she was injured, which combined
with the negligence of Branch and others caused her injuries.” Plaintiff contends the trial court, in
granting summary judgment, made two “incorrect assumptions of law” --
(1) that a “dangerous condition of public property” could be established
accidents,” and (2) that a dangerous condition of public property cannot
exist unless “all” parties were using the public property with “due care.” (Second italics omitted.) We will explain that plaintiff misconstrues
the trial court’s ruling, which properly applied the law.
Prior Similar Accidents
Plaintiff argues
the trial court’s first “incorrect assumption of law” was to assume that the
existence of prior similar accidents is a prerequisite
to finding a dangerous condition of public property. However, plaintiff does not point to anything
in the record suggesting the trial court held this view.
Plaintiff claims
the State argued in the trial court that the absence of similar accidents
proved as a matter of law that any risk was insignificant, and therefore
the property was not dangerous. We agree
with the State that plaintiff distorts the State’s argument. The State argued that its own evidence
showed the absence of prior similar accidents, that plaintiff failed to
refute that evidence and that the absence of similar accidents established that
the risk associated with the property was insignificant for “dangerous
condition” purposes.
In any event,
regardless of the State’s view, plaintiff fails to show the trial court adopted an erroneous interpretation of the
law. The cited ruling shows the trial
court said plaintiff’s evidence of past accidents “do[es] not establish
the requisite ‘substantial similarity’ to be admissible to show a dangerous
condition, particularly since none tends to show the intersection was either
‘distracting [or] confusing’ as claimed by [plaintiff].” “It is well settled that before evidence of
previous accidents may be admitted to prove the existence of a dangerous
condition, it must first be shown that the conditions under which the alleged
previous accidents occurred were the same or substantially similar to the one
in question. [Citations.]” (Salas,
supra, 198 Cal.App.4th at
p. 1072.) Indeed, as this court
observed in Salas, “a stricter degree
of substantial similarity is required when other accident evidence is offered
to show a dangerous condition; ‘“the other accident must be connected in some
way with that thing . . . .”’
[Citation.]” (
207 Cal.App.4th 124, 137-138 [cited Salas
with approval in concluding dissimilar accidents provided no evidence of
dangerous condition].
Thus, in ruling on
the admissibility of plaintiff’s evidence of other accidents, the trial court
merely ruled, correctly, that to be relevant, prior accidents must be
substantially similar. The trial court
did not say that public property cannot be found dangerous absent prior
accidents.
The trial court’s
ruling is consistent with the law. In
determining whether a given condition of public property is minor or
insignificant as a matter of law, one of the factors the court should consider
is whether “‘other persons have been injured on this same defect.’” (Sambrano v.
City of San Diego (2001) 94 Cal.App.4th 225, 234.) This court said in Lane that “the absence of other similar accidents is ‘relevant to
the determination of whether a condition is dangerous.’ (See, e.g., Antenor v. City of Los Angeles (1985) 174 Cal.App.3d
477, 482 [inquiry into the question of dangerousness involves consideration
of such matters as whether the condition has been the cause of other
accidents]; Sambrano[,
p.] 243 [evidence of the lack of prior accidents is relevant to the
definition of a dangerous condition under § 830, subd. (a)].)” (Lane,
p. 1346.) Thus, while not
dispositive on the issue of the existence of a dangerous condition, the absence
of prior similar accidents is a relevant consideration. (Salas,
supra, 198 Cal.App.4th at
p. 1071.)
Plaintiff claims
that at least two prior accidents were similar in that motorists rear-ended
vehicles which had stopped for pedestrians crossing at the subject
crosswalk. It must be obvious that these
accidents are dissimilar. No bicyclist
or pedestrian was struck by a car in the crosswalk. (See Salas,
supra, 198 Cal.App.4th at
p. 1073 [“none of the proffered accidents even involved a pedestrian, much
less a pedestrian who stopped while crossing the street and then changed
direction. . . . [T]he
trial court did not abuse its discretion in ruling the traffic collision
reports were inadmissible because they were not substantially similar.”].) One of the two accidents occurred on the
opposite side of SR 36 from the location where plaintiff was struck by
Branch. Moreover, even assuming for the
sake of argument that such evidence was admissible, plaintiff fails to show any
condition of the property caused those accidents. Neither offending driver claimed to be
distracted by a confusing intersection.
In one, the driver stated he was looking at his speedometer and did not
see the vehicle ahead of him stop. In
the other, the driver was looking behind her as she changed lanes and did not
see vehicle ahead of her stop.
Even assuming for
the sake of argument that two of the prior accidents could be considered
similar to this accident, it does not show a dangerous condition, “given the
high traffic volume that has passed through the intersection without
incident.” (Mixon, supra, 207 Cal.App.4th at p. 138.) Here, the State’s expert attested that
between 1998 (the earliest date available on the State’s database) and this
2006 accident, no other pedestrian or bicycle accidents had occurred at or near
this crosswalk, yet over 16 million vehicles drove through the subject location.
Plaintiff fails
show that the trial court made an error of law regarding prior accidents.
Due Care
Plaintiff argues
the trial court’s second “incorrect assumption of law” was the court’s
conclusion that a dangerous condition of public property cannot exist unless
due care. Again plaintiff misinterprets
the State’s position and the trial court’s ruling.
Plaintiff relies
on case law that a plaintiff need not prove the property was actually being
used with due care at the time of the accident, and negligence by a third
party will not relieve a public entity of liability for a dangerous condition
of public property. For example, in
25 Cal.3d 707, the court said, “if the condition of [the State’s] property
creates a substantial risk of injury even when the property is used with due
care, the state gains no immunity from liability simply because, in a
particular case, the dangerous condition of its property combines with a third
party’s negligent conduct to inflict injury.”
(Ducey, supra, at pp. 718-719, citing, inter alia,
(1978) 82 Cal.App.3d 116, 121 [third party’s negligence does not
negate existence of a dangerous condition].)
“When a plaintiff seeks to recover for injury caused by a dangerous
condition of public property, ‘“The Tort Claims Act does not require [the]
plaintiff to prove that the property was actually being used with due care at
the time of the injury, either by himself or by a third party
. . . .”’” (
supra, 183 Cal.App.4th at p. 1347.) Rather, a condition is dangerous if it
creates a substantial risk of harm when used with due care by the public
generally, as distinguished from a particular person charged as a concurrent
tortfeasor. (Lompoc Unified School Dist. v. Superior Court (1993)
20 Cal.App.4th 1688, 1698 (Lompoc);
Mathews, supra, 182 Cal.App.3d
at p. 121.)
Here, the trial
court did not rule that plaintiff was required to prove due care; nor did it
rule that Branch’s negligence relieved the State of liability. Rather, the trial court ruled, in accordance
with the law, that the undisputed facts established the State’s property did
not pose a substantial risk of injury when used with due care. (§ 830, subd. (a).)
Plaintiff cites
the trial court’s ruling that, even if the court were to consider the
conclusory opinion of plaintiff’s expert that this intersection was
“unique and complex,” there was still no showing that such a unique and complex
intersection, with its alleged increase in potential congestion and
pedestrian-related traffic interactions, posed a substantial risk of injury
when used with due care. Further,
plaintiff cites the trial court’s ruling that the undisputed facts -- including
the facts that there was no obstruction to the motorist’s view of the bicyclist
and the driver behind Branch saw the
bicyclist -- “lead to only one reasonable conclusion: When due care is exercised, the intersection
did not pose a substantial risk of injury.”
Evidence that another driver was able to see plaintiff established that
there is no substantial risk of harm when SR 36 is used with due care by
the public generally. (
166 Cal.App.4th at p. 1190 [based on the fact that another motorist
stopped for the plaintiff as plaintiff crossed the street in the crosswalk,
“[i]t thus appears that a reasonably careful motorist would have had no
difficulty seeing a pedestrian (or in seeing a car that was stopped for a
pedestrian) and stopping, which further supports the conclusion that the
configuration of the subject crosswalk did not create a substantial risk of
injury when used with due care”].) The
court’s rulings here accurately reflect the law and were not erroneous.
Adjacent Property
Plaintiff argues
the conditions on adjacent property,
i.e., the presence of a gas station between two county roads that intersect
SR 36 at odd angles, made the State’s
property unsafe. We have no quarrel with
the principle that public property may be considered dangerous if a condition
on adjacent property exposes those using the public property to a substantial
risk of injury. (Cal. Law Revision Com.
com., reprinted at 32 West’s Ann. Gov. Code (2012 ed.) foll. § 830,
p. 7.) However, that is not the
case here.
Plaintiff quotes
from Swaner v. City of Santa Monica
(1984) 150 Cal.App.3d 789, 804, which held that if third
party negligence is foreseeable, the third party’s conduct may be
the very risk which makes the public property dangerous when considered in
conjunction with some particular feature of the public property such as
lack of a fence or barrier. However,
required the court to assume the truth of the plaintiff’s allegations that
the city knew that third parties were illegally driving vehicles onto a
beach from a parking lot, injuring people on the beach. (Id.
at p. 806.) Swaner held “these allegations, if proved, may provide a
sufficient level of foreseeability so as to render the condition of the
beach a proximate cause of appellants’ injuries.” (Ibid.) However, Swaner
continued: “It may well be that
respondents will successfully show on a motion for summary judgment that
appellants have no evidence to support these allegations [and] successfully
move for summary judgment . . . .” (Ibid.) That is exactly what happened here. Swaner
does not help plaintiff in this appeal from summary judgment.
Moreover, the mere
foreseeability that motorists may be distracted does not create a dangerous
condition. It is the motorist who has the
duty not to be distracted from the safe operation of the vehicle. (Lompoc,
supra, 20 Cal.App.4th at pp. 1694-1695.) In Lompoc,
the Court of Appeal issued a writ directing the trial court to grant summary
judgment in favor of a school district in a complaint by a bicyclist injured by
a motorist distracted by a football game held on the district’s property. The appellate court rejected the plaintiff’s
argument that the district, by trimming a hedge that previously blocked the
passing public’s view of the football field, had created a foreseeable risk
that motorists traveling on the adjacent street would be distracted by athletic
events and become involved in traffic accidents. (Id.
at pp. 1691, 1696-1697.) There was
no physical defect on or adjacent to public property. (Id.
at p. 1697.) “[A] public entity
should not be liable for injuries resulting from the use of a highway--safe for
use at 65--at 90 miles an hour, even though it may be foreseeable that persons
will drive that fast. The public entity
should only be required to provide a highway that is safe for reasonably
foreseeable careful use.” (4 Cal. Law Revision Com. Rep. (1963)
p. 822, original italics.)
Plaintiff argues
part of the distraction occurred on SR 36 itself, i.e., the driver of the
pickup truck, Stephen Graffweg, was on westbound SR 36 and was
“attempting” to turn left onto Aspen Street when he discovered his path blocked
by the logging truck. However, Graffweg
had already turned off SR 36 and was on the gas station premises when
Branch struck plaintiff.
As the State
points out, plaintiff’s theory is similar to the theory advanced in
113 Cal.App.4th 434. In Brenner,
the Court of Appeal upheld dismissal upon demurrer to a complaint alleging a
busy city intersection constituted a dangerous condition because one of the
streets had been widened to accommodate more traffic and because adjacent to
the intersection there was a bus stop, a park, a convenience store, and a
middle school, all of which combined to pose a risk to pedestrians crossing the
street. (Id. at pp. 437-438, 440.)
The court held that these conditions did not permit a finding of a
dangerous condition in the absence of some additional allegation that the
physical characteristics of the street created a substantial risk that a driver
using due care while traveling along the street would be unable to stop
for pedestrians who were using due care while crossing at the
intersection. The court went on to
observe that the complaint contained no allegation that the street had “blind
corners, obscured sightlines, elevation variances, or any other unusual
condition that made the road unsafe when used by motorists
and pedestrians exercising due care.” (
exist here.
Plaintiff cites
her expert’s testimony concerning the alleged existence of 26 different
potential turning movements at the intersections on SR 36. Aside from the fact that there were not
26 different turning movements being executed by vehicles at the time of
the accident, here the mere existence of many potential traffic interactions at
that location does not constitute a dangerous condition of public
property. Motorists are routinely
exposed to a variety of distractions.
Imposing liability in this case would subject public entities to
litigation for nearly every accident that occurs at every four-way
intersection, as well as many other intersections throughout the state.
In
appeal was pending, a pedestrian, injured by a motorist in a marked crosswalk,
argued the State had created a dangerous condition by placing a distracting
“signal ahead” sign and roadway marking which focused motorists’ attention on
the upcoming intersection beyond the intersection where the accident
occurred. (Mixon, supra, 207 Cal.App.4th at p. 135.) Mixon
affirmed summary judgment in favor of the State. “[E]very warning sign necessarily directs a
driver’s attention to one thing among multiple things. . . . It
remains the driver’s duty to attend to the roadway as a whole.” (Id. at
p. 136, italics added.)
Plaintiff relies
on Bonanno, which upheld a jury
verdict against a county transit agency in favor of a pedestrian who was struck
by a car while crossing the street to reach a bus stop established by the
transit agency. The bus stop could be
considered dangerous, in that a hazard on the adjacent property (the crosswalk at an uncontrolled
intersection) exposed those using the bus stop to a substantial risk of
injury. (Bonanno, supra,
30 Cal.4th at p. 149.)
Plaintiff here contends the crosswalk was a dangerous condition
because of its relationship to its surroundings, i.e., the intersection.
However, the
Supreme Court emphasized that its decision in Bonanno assumed the
crosswalk was dangerous. (
“substantial (as distinguished from a minor, trivial or insignificant) risk of
injury” under section 830, which “may pose an insuperable burden to a
plaintiff claiming the location of public property rendered it dangerous.” (Bonanno,
supra, at p. 154.) Bonanno
reiterated that public entity liability lies under section 835 only when a
feature of the public property has “‘increased or intensified’” the danger to
users from third party conduct. (
distinction was recognized in Brenner,
page 442, and here, as in Brenner,
we do not assume the crosswalk was dangerous.
At oral argument,
plaintiff argued the State should have moved the crosswalk further away
from the intersection, as opined by her expert as follows:
“It is the
definite opinion of the declarant that the present location of the crosswalk,
so close to the complex intersections and numerous available vehicle routing
patterns constitutes a dangerous condition.
Positioning the designated crossing area at a location where other
activities and vehicle positions and movements do not divert the driver’s
concentration [sic]. Further, by increasing the visibility of the
crosswalk by use of High Visibility Markings in the crosswalk area as well as
activated flashing yellow beacons and actual speed indication signage should
have been undertaken by the combined efforts of the State of California and
Plumas County long before this accident occurred. An alternate or addition to the above would
be the closing off the angle entry/exit point of Martin Way. While the actual pavement markings and
signage for the crosswalk could meet the minimum standards as indicated in the
Caltrans Traffic Manual and the MUTCD [presumably the Manual on Uniform Traffic
Control Devices] as stated by the State’s expert, Richard Smith; the problems
created at this location deal more with the actual location of the
crosswalk itself in consideration of safety for the persons using the crossing
itself at that location.”
However, the trial
court sustained the State’s evidentiary objection to that matter, grounded on
lack of foundation and opinion based on improper matter. We have rejected, ante, plaintiff’s general protest to the evidentiary rulings, and
plaintiff presents no analysis or authority that this particular evidentiary
ruling was improper. We do not consider
on appeal any evidence as to which the trial court has sustained evidentiary
objections (Bozzi,
whom the court ruled demonstrates on appeal that the ruling was improper (
67 Cal.App.4th at pp. 784-785).)
Even if we were to
consider the expert’s opinion, it does not save plaintiff’s case. It contains an incomplete sentence: “Positioning the designated crossing area at
a location where other activities and vehicle positions and movements do not
divert the driver’s concentration [sic].” The expert does not say whether repositioning
is something that he believes should be done.
The expert goes on to speak about visibility of the crosswalk, which we
know was not an issue in this accident.
Even assuming the expert meant to state an opinion that the crosswalk
should be moved, the State does not have a duty to position a crosswalk at a
location where other activities and vehicle positions and movements do not
divert the driver’s concentration. As we
have already explained, motorists are routinely exposed to a variety of
distractions. Imposing liability in this
case would subject public entities to litigation for nearly every accident that
occurs at every four-way intersection, as well as many other intersections
throughout the state.
There was no
evidence raising a triable issue of
fact as to any physical characteristic of the property that created a
substantial risk that a driver using due care while traveling along SR 36
would be unable to stop for pedestrians who were using due care while crossing
at the crosswalk. We conclude the trial
court properly entered summary judgment in favor of the State.
The judgment is
affirmed. The State shall recover its
costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(1)-(2).)
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
ROBIE , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Government Code.
name="_ftn2" title="">[2] The complaint also named as defendants Plumas
County, David Branch, Jennifer Bailey, Doe Logging Truck Driver, and Doe
Logging Truck Company.
as vague and overbroad, but otherwise agreed the matters were
