Constructive Notice Standard for Defect in Alley Is Different from Standard for Sidewalk Defect
In Martinez v. City of Beverly Hills, published November 10, 2021, the Second District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city. The plaintiff tripped and fell when her rubber flipflop edge hit the edge of a drainage swale in the alley through which she walked. The asphalt that was normally flush against the edge of the swale had worn away, creating an approximately 1.75" divot. The divot had been there for at least two years. The city has an inspection program under which it hires a contractor every two years to inspect the city's streets and alleys and prepare a report spelling out the condition of the alley or street, which the city uses to prioritize resurfacing projects. The project is not to identify specific divots. The city will also inspect and if warranted repair any potential hazards in response to user calls. The city had not inspected this alley since at least seven years before the accident. In the six years before the accident, the city had received no complaints or work orders concerning this divot. The year before the accident, the city received a user call reporting a large indentation in the alley. A city crew went to the alley to repair the indentation, and filled three large potholes. The crew did not repair the divot. Per the supervisor, if the crew had seen the divot, it would have done nothing to fix it because the size was insignificant and the material used to patch the potholes cannot be used for small divots. The trial court granted summary judgment on the ground that the city had no actual or constructive notice of the divot.
The appellate court agreed that summary judgment was appropriate on the notice issue. It found no triable issue of fact on whether the city had actual notice. It rejected the argument that every possible city employee who may have been in the alley in the past had to present a declaration denying knowledge of the divot. In light of the supervisor's declaration that the crew that fixed the potholes that the crew would have taken no notice of the divot because it was too insignificant, any inference that employees who did not present declarations would have noticed the divot was not reasonable. To prove constructive notice, the test is whether the defect was sufficiently obvious under the circumstances. Under Government Code section 835.2, the test for obviousness includes considering whether the property was safe for intended or actual known uses of the property. While sidewalks are intended for persons to walk on, alleys are intended for vehicle use and only occasional pedestrian use. Public policy warrants requiring more rigorous scrutiny of sidewalks for defects than alleys. Because alley surfaces degrade far more quickly than sidewalk surfaces, due to use by heavy vehicles, the cost of keeping alleys safe for pedestrians is higher than for sidewalks, and the likelihood of injury to pedestrians is lower. Public entities may therefore reasonably elect to apply less rigorous scrutiny for defects as compared to sidewalks. The divot here was therefore, as a matter of law, not sufficiently obvious to create constructive notice.
November 10, 2021 in Dangerous Conditions of Public Property, Summary Judgment | Permalink | Comments (0)
Natural Condition Immunity Applies to Tree That Is in Municipal Park, That Has Been Pruned, and That Drops a Branch onto a Path
In City of Chico v. Superior Court (McKenzie), published August 30, 2021, the Third District Court of Appeal issued a writ directing a trial court to grant the petitioner city summary judgment. While jogging on a bike path in a municipal park, the plaintiff was injured by a falling tree branch. She sued the city for maintaining a dangerous condition of public property. The park is a naturally occurring riparian woodland. The tree is a 160-year-old Valley Oak Tree. It predates the park. Valley oaks are indigenous to the park location. Valley Oaks are subject to sudden branch drop, which cannot be anticipated; it is often associated with long, horizontal branches and warm temperatures. The city moved for summary judgment based on Government Code section 831.2's immunity from liability for injuries caused by a natural condition of unimproved public property. The plaintiffs submitted expert evidence that the tree had been pruned, and that pruning can push growth into the remaining branches, increasing their diameter. They did not submit evidence that previous pruning actually caused the branch to break. The trial court denied summary judgment, finding triable issues of fact on whether the injuries were caused by a natural condition of unimproved public property.
The appellate court ruled that the city was entitled to section 831.2 immunity as a matter of law. The natural growth of indigenous trees in natural habitats is a natural condition. Pruning did not change that. Natural condition immunity is not lost because of changes that duplicate models common to nature combine with natural forces to shape the condition. Despite the pruning, the continued growth of the tree was a natural condition. The tree grew on unimproved property; that the branch fell on (and the injury occurred on) an improved path did not change that the condition was on unimproved public property. There was no evidence that the pruning caused the branch to fall; at most there was evidence it affected the diameter of the branches, which did not cause branches to drop.
August 31, 2021 in Dangerous Conditions of Public Property, Immunities | Permalink | Comments (0)
Public Entity Owes No Duty under Government Code section 835 to Person Not on or Using Property or Adjacent Property; Public Health Immunity Applies to Failure to Control Disease on Public Property
In City of Los Angeles v. Superior Court (Wong), published March 18, 2021, the Second District Court of Appeal, Division 4 issued a writ directing the trial court to sustain the petitioner city's demurrer to the real party's lawsuit. The real party plaintiff alleged that her husband, a city police officer, contracted typhus from unsanitary conditions in and around the police station where he worked, and that the plaintiff then contracted typhus from her husband. She sued the city under Government Code section 835 for maintaining a dangerous condition of public property. The city demurred on the ground that it owed no duty to the plaintiff, because she did not have contact with the allegedly dangerous property, and because it was immune under Government Code section 855.4 for its decisions to perform or not to perform acts to promote public health of the community by preventing disease or controlling communication of disease. The trial court rejected both arguments.
The appellate court ruled that the city did not owe the plaintiff a duty under section 835. Although section 835 imposes a duty on public entities not to maintain property in a dangerous condition, it does not expressly state to whom the duty is owed. The plaintiff contended that causation was sufficient to establish that the city owed a duty to her, even if she did not have contact with the property. But no case finds liability under section 835 where the plaintiff has had no physical contact with the dangerous condition on the subject property or any adjacent property. The trial court analogized to case law that a private landowner can be liable when a person takes home asbestos fibers, and the exposure to the fibers causes another person to become ill. But that law concerns private landowners. Section 835 liability is not coextensive with private liability. Further, the plaintiff did not allege the husband brought home fleas or other infection vectors from the public property; she alleges she contracted the disease from her husband. The city therefore owed no duty to the plaintiff, and the demurrer should have been sustained on that ground.
Further, even if the city owed a duty, it was immune under section 855.4. Keeping city property free from disease-causing conditions is a discretionary discretion subject to the immunity. The plaintiff had the duty to plead with particularity facts showing the city's actions did not fall within the immunity. She did not do so. She did not allege a nondiscretionary mandatory duty the city failed to comply with. Although the immunity does not apply to failure to carry out decisions with due care, the plaintiff did not allege facts in her complaint that the city carried out any particular act or omission without due care. Instead, she alleged the decision not to abate the dangerous condition of the property caused the injury.
March 19, 2021 in Dangerous Conditions of Public Property, Immunities | Permalink | Comments (0)
Approved Plan Showing Absence of Bicycle Lane Entitled City to Design Immunity
In Tansavatdi v. City of Rancho Palos Verdes, published January 29, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part summary judgment granted to the defendant city. Plaintiff's decedent was riding his bicycle on a roadway without a bike lane. He rode straight through a right-turn lane at an intersection, and ran into a right-turning truck, sustaining fatal injuries. Plaintiff contended that the absence of the bike lane was a dangerous condition of public property. The trial court granted the city summary judgment based on Government Code section 830.6 design immunity.
The appellate court affirmed the trial court's finding of design immunity. The three elements of design immunity were established. A 2009 restriping and resurfacing plan for the roadway indicated the presence of bicycle lanes on other sections of the street on which the decedent rode, but not on the segment where there was no lane. This evidence established that the absence of a bike lane was the result of a plan or design, establishing the causation element. The plans were signed by the city's director of public works, and the city submitted undisputed evidence that he approved the plans on behalf of the city before construction. That satisfied the discretionary approval element. The city submitted substantial evidence the plan was reasonable, by submitting an expert declaration that the absence of a bicycle lane was reasonable and met guidelines. A former senior engineer for the city declared similarly, and testified in support of reasonableness in deposition. The plaintiff's contrary expert evidence did not eliminate the substantial evidence of reasonableness. The court rejected the plaintiff's argument that the city had to show evidence of the deliberative process or analysis concerning a bicycle lane to establish reasonableness. The law does not require such evidence; to the contrary, a public entity need not show the deliberative process to obtain design immunity.
The court noted, however, that the trial court's order did not address the plaintiff's argument that the city could be held liable for failure to warn even if it was entitled to design immunity. The court ruled that under California Supreme Court authority, a city can be held liable for failure to warn of an allegedly dangerous condition even if the city is entitled to design immunity for the condition. The court remanded the matter to the trial court to consider whether summary judgment is appropriate as to the plaintiff's failure to warn theory.
Pollak, Vida & Barer represented the city on appeal in this case.
January 29, 2021 in Dangerous Conditions of Public Property, Immunities | Permalink | Comments (0)
Because Offramp Was Constructed in Substantial Compliance with Approved Plans, Design Immunity Applied
In Menges v. Department of Transportation, published December 24, 2020, a divided panel of the Fourth District Court of Appeal, Division 3 affirmed summary judgment in favor of Caltrans based on design immunity under Government Code section 830.6. A tractor-trailer exiting Interstate 5 at Avenida Pico swerved, straddled a curb, crashed through a light standard, and broadsided the vehicle on Avenida Pico carrying the plaintiff. The truck driver told police he had no recollection of the accident and had no reason to exit the interstate at that point. The plaintiff sued Caltrans, alleging that the striping and signage of the off-ramp was a dangerous condition of public property that had caused the truck to mistakenly and unintentionally exit the freeway and crash into the car. Caltrans moved for summary judgment. It presented evidence that the offramp was built substantially in compliance with an approved plan. The court granted the motion.
The majority agreed that design immunity applied. The plaintiff challenged the reasonableness of the design, based on the declarations of the plaintiff's two experts. The appellate court held that substantial evidence of reasonableness establishes that element of design immunity. The approval of the plan by a licensed engineer for Caltrans, exercising his discretion, was substantial evidence of reasonableness. The opinion of the defense expert witness, after reviewing the materials and the information about the accident, that the design was reasonable was further evidence establishing reasonableness. In light of that substantial evidence, the opposing expert opinions could not raise a triable issue of fact. The plaintiff also contended that the expert declarations raised a triable factual issue on whether the offramp as built conformed exactly with the plan. The majority held that this was the incorrect standard: To establish the second element of design immunity, the defendant must prove only that the improvement as constructed conformed substantially with an improved plan. The plaintiff's experts opined that the constructed offramp's signage, gore point striping, and channelizer striping deviated from the plan. Caltrans objected to these declarations as lacking foundation. The trial court did not rule on those objections. The majority sustained the objections, ruling that the experts did not provide a foundation in the evidence for their opinions. That left Caltrans's expert's opinion that the construction complied with the plan. Further, the evidence did not show that the deviations the plaintiff's experts identified were substantial.
A dissenting justice opined that any deviation from the plan should be analyzed under the test for loss of design immunity; and that the California Supreme Court had established that the substantial-evidence test should not be applied to loss of design immunity. The justice further opined that the plaintiff's experts had a foundation for their opinions; and that the case law on which the majority relied was no longer good law.
December 28, 2020 in Dangerous Conditions of Public Property, Evidence, Immunities | Permalink | Comments (0)
Bicyclist's Dangerous Condition Claim for Striking Pothole Not Barred by Primary Assumption of the Risk
In Williams v. County of Sonoma, published September 28, 2020, the First District Court of Appeal, Division 5 affirmed a judgment against the defendant county after jury trial in a case alleging a dangerous condition of public property. The plaintiff biked down a hill on a county road, and encountered a pothole four feet long, three feet four inches wide, and four inches deep. The plaintiff's bike hit the pothole at 25 miles per hour and she was seriously injured. The trial court rejected the county's argument that the primary assumption of the risk doctrine barred the lawsuit.
The appellate court agreed. Assuming without deciding that the primary assumption of the risk doctrine applies to a dangerous condition of public property claim, the county failed to establish that the duty not to increase the danger inherent in the sport of cycling did not apply. The county argued that because it had no role in cycling or relationship with the plaintiff, it owed no duty to avoid unreasonably increasing the inherent risks. Whether the defendant owes such a duty is guided by the policy goals underlying the doctrine: avoiding chilling participation in the activity and thereby altering its fundamental nature. Imposing the duty on the county would not alter the fundamental nature of bicycling on county roads. Because the county owes a duty to all foreseeable users to maintain safe roads, and the pothole here would pose a danger not only to bikes but to other vehicles, imposing a duty on the county to eliminate such road hazards does not materially increase the county's burden and would not lead it to curtail the speed limit for cyclists or otherwise fundamentally alter the activity. The county waived the argument that it did not breach the duty by failing to repair the pothole.
September 29, 2020 in Assumption of the Risk, Dangerous Conditions of Public Property | Permalink | Comments (0)
Danger, Design Approval, and Lack of Warning Are Immaterial to Trail Immunity
In Nealy v. County of Orange, ordered published September 14, 2020, the Fourth District Court of Appeal, Division 3 affirmed the trial court's dismissal, based on demurrer, of a dangerous condition lawsuit. A county park included a loop trail used for hiking and bicycling. In the past, a wooden lodgepole fence ran perpendicularly across the trial, serving as an entrance and exit for the trial and creating a physical barrier bicyclists had to maneuver around when riding north or south on the trail. The plaintiff knew of the fence's existence and had ridden around it. The fence was replaced by new fencing, consisting of wooden pylons between which were strung gray colored wired cables. The fencing also ran parallel to the trail. The plaintiff noticed the old fencing was removed, and mistakenly believed he could ride between the fenceposts of the new fence across the trail. He rode into the wire cables, and was injured. He sued the county for maintaining a dangerous condition of public property. The county demurred on the ground of Government Code section 831.4's trail immunity. The court sustained the demurrer with leave to amend. The plaintiff filed a first amended complaint that changed the description of the fence, and attacked the design of the fencing. The court sustained a demurrer to the amended complaint without leave to amend.
The appellate court ruled that under the sham pleading rule, the plaintiff could not change the description of the fencing set forth in his claim for damages or original complaint, and could not allege facts contrary to the photos he attached to his pleadings as exhibits. The plaintiff did not contest that the trail was a trail used for recreation. Government Code section 831.4's trail immunity therefore applied. The fence was part of the trail, as established by past case law holding that features such as gateways to recreational trails were part of the trail for purposes of the immunity. The plaintiff's arguments that the fencing was dangerous did not avoid the immunity, since the statute is an immunity to dangerous condition liability. The plaintiff's contention that the design of the fence was not approved was immaterial, since the immunity at issue was not design immunity. His contention that the county failed to warn of the cables was immaterial; the immunity is absolute, and is not dependent on warnings. Since the plaintiff was riding his bike for recreation on a recreational trail, the fencing was a part and condition of the trail, and that condition injured him, the immunity applied. There was no reasonable possibility of further amendment.
September 15, 2020 in Civil Procedure, Dangerous Conditions of Public Property, Immunities | Permalink | Comments (0)
Asserting Reasonable-Measures Defense to Dangerous Condition Cause of Action Does Not Waive Privilege Protecting Application for Federal Highway Safety Funds
In Ford v. City of Los Angeles, published April 1, 2020, the Second District Court of Appeal, Division 8 affirmed a defense verdict for the defendant city in an auto vs. pedestrian case alleging that an intersection where the city was installing a traffic signal--but had not completed installation until after the accident--was a dangerous condition of public property. After a fatal accident at the intersection, the city had applied for federal funds under the Highway Safety Improvement Program to improve the intersection. In its application for the funds, the city admitted the intersection was hazardous. The city received the funds to install a signal at the intersection, but did not complete the project before the plaintiff's accident. At trial, the court granted the city's motion in limine to exclude the application for the funds from evidence under 23 U.S.C. section 409, which precludes admission into evidence of various documents compiled or collected as part of a request for funds under the program. At trial, the city submitted evidence that before the accident it learned it would receive federal funding, and of the process of installing the signal, to establish the affirmative defense under Government Code section 835.4 that it took reasonable steps to address a dangerous condition. The jury found the intersection was not in a dangerous condition. The plaintiff argued that the statutory privilege did not include the application the city submittted, and alternatively that the city waived the privilege by submitting evidence of the federal funds.
The court of appeal rejected both arguments. Although an application for funds is not expressly included in section 409's list of privileged documents, the intent of the statute--encouraging states to make honest assessments of their property by protecting them from liability for doing so--establishes that applications in which entities disclose their property is hazardous are included in the privilege. The city did not waive the privilege by putting on the section 835.4 defense, because the defense did not offer any evidence about the contents of the application. It merely offered evidence of when it learned federal funds were available, and the steps it took afterward to install the signal. The section 835.4 defense did not depend on the contents of the application.
April 01, 2020 in Dangerous Conditions of Public Property, Evidence | Permalink | Comments (0)
Rope Stretched Across Recreational Path Covered by Trail Immunity
In Reed v. City of Los Angeles, published February 28, 2020, the Second District Court of Appeal, Division 1 affirmed summary judgment for the defendant city in a case alleging dangerous condition of public property. The plaintiff was riding his bicycle on a paved path adjacent to a sports field in a city park early one morning when he rode into a rope attached to a badminton net and stretched across the path. The plaintiff alleged that individuals unrelated to the city had erected the net, but that they had done so frequently enough that the City knew or should have known the rope would be there.
The appellate court ruled that Government Code section 831.4's trail immunity applied. The immunity applies to conditions adjacent to the recreational trail that pose a danger only to users of the trail. Here, the badminton net did not pose a danger except to users of the trail, because it impeded regular use of the trail. The alleged failure to take measures to prevent the rope from being stretched across the trail is a failure to maintain the trail. The immunity applies to failure to maintain trails.
Intersection Where Motorist with Sun in His Eyes Hit Pedestrian Is Not in a Dangerous Condition
In Thimon v. City of Newark, published January 27, 2020, the First District Court of Appeal, Divison 2 affirmed summary judgment for the defendant city in a case alleging a city intersection was a dangerous condition of public property. The 14-year-old plaintiff was crossing the intersection on her way to school at 7:30 on a December morrning. The intersection was not controlled by signals or stop signs, and contained no pedestrian-activated signals or lights. It had a painted crosswalk. After the plaintiff was in the crosswalk approximately six seconds, she was struck by a vehicle traveling on the street she crossed. The vehicle was driving under the 45 MPH posted speed limit.The driver did not see the plaintiff, due to glare from the morning sun. By driving despite his inability to see, the driver indisputably violated the basic speed law. His negligence was indisputably a proximate cause of the accident.The parties' experts disputed whether the intersection was dangerous. Over a 10-year period there had been no vehicle vs. pedestrian accidents at the crosswalk. The trial court granted summary judgment on the ground that there was no defect in the intersection.
The appellate court agreed. That the driver's negligence was a proximate cause of the accident did not preclude a finding of dangerous condition. The question was whether any dangerous condition increased or intensified the risk of injury from the third party's conduct. But the entity was not required to assume that third party drivers would act negligently or recklessly. The entity is only required to provide roads safe for reasonably foreseeable careful use. By showing that the street had no blind corners, elevation variances, or foliage that would obstruct a driver's view of a pedestrian in the intersection; that the intersection had a crosswalk painted with white lines; that signs warning of pedestrians hd been installed approaching the intersection; that the driver was negligent; and the absence of similar accidents, the city carried its prima facie burden on summary judgment of showing that the intersection did not pose a substantial risk to users with due care. The city was entitled to address each of the factors that the plaintiff identified as possibly making the street dangerous, whether individually or in combination with other factors. The plaintiff's argument that the city's showing did not show that the combination of factors at the intersection created a dangerous condition failed. In response to this showing, the plaintiff failed to raise a triable issue of fact. There was no evidence to support the plaintiff's contention that providing a painted crosswalk at the scene increased the risk from negligent drivers. Alleged failure to follow general guidance in Caltrans traffic manuals for marking crosswalks did not raise a triable issue, particularly since the city produced undisputed evidence that its engineering professionals exercised the discretion called for in the Caltrans manuals in evaluating the appropriateness of placing a crosswalk at the intersection. The theory that the crosswalk encouraged more pedestrians to cross at the intersection did not show an increase or intensification of risk to the plaintiff when she used it. The theory that the plaintiff would not have used the crosswalk if not marked was speculative. The argument that the crosswalk created a trap failed, because the claimed dangerous conditions--street width, traffic volume, traffic speed, absence of a signal or other traffic controls, the glare of the sun-- were apparent to pedestrians. While the sun's glare combined with unexpected road features may create a dangerous condition, there was no evidence of that here. Case law implictly rejects the idea that an intersection on a heavily-traveled thoroughfare is made dangerous by the type or existence of crosswalk markings, the lighting conditions, or the lack of traffic devices. The proffer of an expert declaration opining a condition is dangerous does not preclude summary judgment.
January 28, 2020 in Dangerous Conditions of Public Property | Permalink | Comments (0)