San Roman v. City of
Filed 10/2/13
San Roman v. City of El Monte CA2/2
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
TWO
JONATHAN SAN
ROMAN,
Plaintiff and
Appellant,
v.
CITY OF EL MONTE,
Defendant and Respondent.
B237543
(Los Angeles County
Super. Ct. No. KC058976)
APPEAL
from a judgment of the Superior Court
of
County. Salvatore T.
Sirna, Judge. Affirmed.
Taylor
& Ring and John C. Taylor; Esner, Chang & Boyer and Holly N. Boyer for
Plaintiff and Appellant.
Law
Offices of Leech & Associates and D. Wayne Leech for Defendant and
Respondent.
Jonathan
San Roman (appellant) appeals from a final judgment entered against him after
the trial court granted the City of El Monte’s
(the City) motion for summary judgment on appellant’s cause of action against
the City for dangerous condition of public property. We affirm.
Appellant
contends that the trial court erred in granting summary judgment because a
reasonable juror could conclude that the conditions at the crosswalk where
appellant was injured created a substantial risk of
immunities provided under Government Code sections 830.4 and 830.8
do not shield the City from liability in this case.
The accident
On
September 20, 2009, at 8:15 p.m., Jimmy Oscar Banuelos (Banuelos) was
driving westbound on Valley Boulevard
towards the intersection of Meeker Avenue.
Banuelos was traveling in the No. 1 lane. Appellant was walking southbound, crossing Valley
Boulevard at its intersection with Meeker
Avenue, after having activated a cautionary
pedestrian signal in place at the intersection.
It was dark outside.
The
car traveling westbound in the No. 2 lane came to a stop before appellant
stepped into the crosswalk, to allow appellant and his friends to walk
across. Appellant remembers seeing some
embedded lights flashing in the street after he pushed the button to cross.
Banuelos’s
car was traveling at about 30 to 35 mph.
After crossing lane No. 2 in front of the stopped car, appellant walked
about two steps into the No. 1 lane when he was struck by Banuelos’s car.
Appellant
did not see the car slow or attempt to stop to avoid the accident. Appellant was unaware of anything that
obstructed Banuelos from seeing appellant before the accident.
The intersection
Valley
Boulevard runs in a general east-west direction and Meeker
Avenue runs in a general north-south direction in
the City. Valley Boulevard is a major
thoroughfare with a speed limit in the area of Meeker
Avenue posted at 35 mph. Meeker Avenue terminates approximately one
block north of Valley Boulevard. Traffic on Meeker
Avenue is controlled by stop signs at Valley
Boulevard, but there is no traffic control on Valley
Boulevard at Meeker
Avenue. At
the intersection of Meeker Avenue,
Valley Boulevard is a four
lane, approximately 85-foot wide street.
There
is a pedestrian crosswalk on the western portion of Meeker
Avenue across Valley
Boulevard. There
are also pedestrian crosswalk signs and signals on both the north sidewalk and
south sidewalk of Valley Boulevard
at Meeker Avenue. The pedestrian crossing signals, when
activated by a push button, flash an amber light in the west and east directions. The signals are also designed to activate
flashing lights which are embedded into the street along both crosswalk lines
going across Valley Boulevard. There are eight embedded lights on the west
side of the crosswalk and eight embedded lights on the east side of the
crosswalk.
The
word “LOOK†in both English and Spanish, with arrows pointing east and west,
were painted in the crosswalk with white paint just off of the north and south
curbs of Valley Boulevard,
to alert pedestrians before entering the crosswalk.
Approximately
166 feet east of the west curb of Meeker Avenue,
on the north side of Valley Boulevard,
was another pedestrian crossing sign.
The two pedestrian signs on the north and south sides of Valley
Boulevard were diamond-shaped with a fluorescent
yellow-green background. The pedestrian
crossing signs, pedestrian crossing signal, and painted crosswalk were in place
to warn motorists traveling in both directions on Valley
Boulevard that pedestrians might be ahead.
In
2004, the City participated in a pilot project to install the embedded lights
in the asphalt along the crosswalk on Valley Boulevard
at the intersection of Meeker Avenue. The City received a grant from the California
Office of Traffic Safety for the purchase of the in-roadway LED strobe lighting
and flashing beacons. This was an
experimental project; embedded lights are not a traffic engineering standard
nor are they required in California.
For
the first four years after the embedded strobe lights and beacon were installed
in 2004, the City’s public maintenance division conducted weekly inspections of
the lights and repaired them immediately if they were not operating
correctly. The City’s inspections
stopped in 2009. At that time the City
knew that some of the lights were not working and that others would soon stop
working.
Post-accident investigation
Officer
Rodriguez inspected the pedestrian crossing signals at Valley
Boulevard and Meeker
Avenue on the evening of the accident and noted
the large amber flashing lights on both of the pedestrian signal poles on the
north and south side of Valley Boulevard
were operating properly when the button was pushed. Some of the lights in the diamond-shaped
pedestrian crosswalk sign that faced eastbound that were burned out. Those lights were not flashing inside of the
sign, but other lights were flashing inside the sign.
Officer
Rodriguez also inspected the 16 flashing lights embedded in the street that run
along both lines of the crosswalk. There
are eight embedded lights on the west portion of the crosswalk and eight
embedded flashing lights on the east portion of the crosswalk. Out of the 16 embedded light fixtures, two
were operational and flashing when the button was pushed. The two that were working were on the west
side of the crosswalk approximately in the middle of the street.
Accident history
The
City had a history of one other incident involving a pedestrian and an
automobile in the crosswalk at Valley Boulevard
and Meeker Avenue between
1996 and 2009. The date of the incident
was November 20, 2000.
Appellant
filed a complaint for damages against Banuelos and the City on June 17, 2010, and a first amended
complaint (FAC) against the same defendants on October 7, 2010.
The FAC alleged a cause of action for negligence against all defendants,
and a cause of action for dangerous condition of public property against the
City. The trial court sustained the
City’s demurrer to the negligence cause of action, leaving only the cause of
action for dangerous condition of public property against the City.
On
April 22, 2011, the City
filed a motion for summary judgment. The City argued:
1. The condition of public property where
appellant was struck by a motorist was not in a dangerous condition as a
embedded lights in a crosswalk is not a dangerous condition of public property
as a matter of law;
2. The City was entitled to immunity pursuant to
section 830.4, which provides that a condition is not a dangerous condition
merely because of the failure to provide regulatory traffic signals, stop
signs, yield right-of-way signs, speed restriction signs, or distinctive
roadway markings as described in section 21460 of the Vehicle Code;
3. The City is entitled to immunity pursuant to
section 830.8 in that a condition is not a dangerous condition merely because
of the failure to provide traffic or warning signals, signs, markings or devices
described in the Vehicle Code; and
4. The undisputed evidence shows that no
dangerous condition of public property caused the accident.
Appellant
opposed the motion for summary judgment alleging that the intersection was
dangerous at the time of his accident because the City had stopped maintaining
the 16 in-pavement flashing warning lights that were installed along the
crosswalk. Appellant explained that five
years prior to the accident, the City had installed in-pavement flashers and
repaired them immediately if they were not operating correctly. However, the City stopped maintaining the
lights a few months before the accident.
Thus, appellant argued, the night of the accident, Banuelos did not see
any flashing lights, did not see appellant, and struck him in the middle of the
crosswalk. Citing Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991 (
whether a given set of circumstances creates a dangerous condition is usually a
question of fact. Appellant explained
that this only becomes a question of law when reasonable minds can come to only
one conclusion. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701.) Appellant claims the facts here, along with
the opinion of an experienced traffic engineer, unquestionably permit more than
one conclusion.
Appellant
submitted a declaration of Harry Kreuper, a civil and traffic engineer, who
opined that the City’s failure to maintain the flashing lights was a
substantial factor in causing the accident.
Kreuper opined that flashing lights provide for a safer intersection for
pedestrians when they are properly maintained, aid visibility and alert drivers
that there are pedestrians in the crosswalk.
They are especially beneficial at night.
Appellant
argued that the defective crosswalk created a substantial risk of injury when
used with due care in a forseeable manner, as defined in section 830, and that
the City failed to present evidence that the defect was trivial. Appellant contended that the damaged,
defective and deteriorating lights created a trap for drivers and pedestrians
who were using the crosswalk with due care and reasonably relied on the lights
to work. Appellant also argued that the
accident history of the intersection does not prove that the property was not
in a dangerous condition, and that the City was not absolved from liability by
third party negligence or sections 830.4 and 830.8.
The
City filed a reply brief along with evidentiary objections.
The
summary judgment motion was heard on October 7, 2011. Following the hearing, the trial court
granted the City’s motion. The court
concluded that defendant met its initial burden of demonstrating that there was
no condition of the crosswalk which created a substantial risk of injury, as
distinguished from a minor, trivial or insignificant condition, when the
crosswalk was used with due care. The
court cited Cerna v. City of Oakland (2008)
161 Cal.App.4th 1340, 1350-1352 (Cerna),
which held that a crosswalk that lacked crossing guards and cautionary signs
and signals, including no blinking lights along the parallel painted lines of
the crosswalk, was not dangerous as a matter of law. Relying on Cerna, the court concluded that no reasonable juror could conclude
that the lack of functioning flashing lights in a crosswalk created or
increased the risk of harm to a pedestrian at the intersection. Without a foundational showing that the
intersection was a dangerous condition, the court concluded, evidence that
properly working flashing lights or supplemental warnings would have prevented
the accident is not relevant, citing Brenner
v. City of El Cajon (2003) 113 Cal.App.4th 434, 442-443.
Final
judgment was entered on November 3, 2011.
Appellant filed his notice of appeal on November 22, 2011.
I. Standard of review
Summary
judgment is granted when a moving party establishes the right to entry of judgment
as a matter of law. (Code Civ. Proc., §
437c, subd. (c).) A defendant moving for
summary judgment bears the initial burden of proving that there is no merit to
a cause of action by showing that one or more elements of the cause of action
cannot be established or that there is a complete defense to that cause of
action. (Code Civ. Proc., 437c, subd.
(p)(2); Cucuzza v. City of Santa Clara (2002)
104 Cal.App.4th 1031, 1037.) Once the
defendant has made such a showing, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of
action or as to a defense to the cause of action. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff does not make such a
showing, summary judgment in favor of the defendant is appropriate. In order to obtain a summary judgment, “all
that the defendant need do is to show that the plaintiff cannot establish at
least one element of the cause of action.â€
(Id. at p. 853.)
We
review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment
for the moving party as a matter of law.
(Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).)
II. Dangerous condition of
public property
A
“dangerous condition†is defined 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 in a
manner in which it is reasonably foreseeable that it will be used.†(§ 830, subd. (a).) A public entity’s liability for a dangerous
condition of its property is governed by section 835, which 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.â€
Thus,
to successfully prove a dangerous condition of public property within the
meaning of section 830, a plaintiff must prove that the condition of the public
property created a substantial risk when used with due care in a foreseeable
manner. “The existence of a dangerous
condition ordinarily is a question of fact, but the issue may be resolved as a
matter of law if reasonable minds can come to only one conclusion. [Citation.]â€
(Zelig, supra, 27 Cal.4th at
p. 1133.) Public entities are not liable
for injuries attributable to an unforeseeable use of the property. (§ 830, subd. (a).)
In
addition, there is no liability for injury caused by risks of a “minor, trivial
or insignificant†nature. (§§ 830, subd.
(a), 830.2; Huffman, supra, 84
Cal.App.4th at p. 991.) 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.â€
Whether
a defect in public property is trivial or insignificant under section 830.2 may
be decided as a matter of law. (
Cal.App.3d 719, 726-727 (Fielder).) This is to prevent the City from becoming an
insurer of public ways against all defects.
(Id. at p. 726.)
III. Section 830.4 immunity
Section
830.4 provides immunity for a city’s failure to provide certain street signs
and signals. Section 830.4 reads:
“A
condition is not a dangerous condition within the meaning of this chapter
merely because of the failure to provide regulatory traffic control signals,
stop signs, yield right-of-way signs, or speed restriction signs, as described
by the Vehicle Code, or distinctive roadway markings as described in Section
21460 of the Vehicle Code.â€
However,
“[i]f an intersection is dangerous because of the failure to provide warning or
regulatory signs and also because of
the ‘conjunction of other factors,’ section 830.4 is no bar to liability. [Citation.]â€
(Washington v. City and County of
San Francisco (1990) 219 Cal.App.3d 1531, 1538-1539 (Washington).)
Section
830.8 provides further immunity. It
states:
“Neither
a public entity nor a public employee is liable under this chapter for an
injury caused by the failure to provide traffic or warning signals, signs,
markings or devices described in the Vehicle Code. Nothing in this section exonerates a public
entity or public employee from liability for injury proximately caused by such
failure if a signal, sign, marking or device (other than one described in
Section 830.4) was necessary to warn of a dangerous condition which endangered
the safe movement of traffic and which would not be reasonably apparent to, and
would not have been anticipated by, a person exercising due care.â€
Thus,
a public entity “loses its limited immunity under section 830.8 and is liable
for injury where its failure to provide traffic regulatory or warnings signals,
of a type other than those described in
section 830.4, constitutes a concealed trap for those exercising due care,
assuming the conditions of its liability under section 835 are otherwise
met. [Citation.]†(Washington,
supra, 219 Cal.App.3d at pp. 1536-1537.)
IV. No dangerous condition of
public property existed as a matter of law
Appellant
took the position that the City’s failure to maintain the embedded lights at
the subject crosswalk created a dangerous condition of public property. Specifically, appellant argued “that the
embedded flashing lights that run alongside the crosswalk and light up when the
cautionary pedestrian signal is activated were not operating and/or missing and
did not flash when the signal was activated at the time of the subject accident;
and that this created a defect in the physical condition of the property and a
dangerous condition of public property and an undiscovered trap which resulted
in the accident.â€
title="">[5]
In
its motion for summary judgment, the City argued that the purported defect was
not a dangerous condition as a matter of law, because it did not create a
substantial risk of injury when used with due care in a manner prescribed by
law. (§ 830.) Instead, the City argued, the defect 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 was used with due
care. (§ 830.2.)
Both
parties have cited case law relevant to the question of whether the
nonfunctional embedded lights can be considered a dangerous condition of public
property. In support of its position
that the alleged defect is trivial as a matter of law, the City cites several
cases, discussed below.
The
City first cites Brenner v. City of El
Cajon (2003) 113 Cal.App.4th 434 (Brenner). In Brenner,
a pedestrian was struck by a car while crossing Chase Avenue near the
intersection of Estes Street in El Cajon.
The plaintiff alleged that the area was heavily traveled by pedestrians
due to bus stops, a park, a convenience store and a school and that the City of
El Cajon had failed to take any steps to control traffic or make the area safer
for pedestrians. (Id. at pp. 437-438.) In
response to the plaintiff’s allegation of heavy traffic at the intersection,
the court stated: “The second amended
complaint contains no allegation that Chase Avenue had blind corners, obscured
sightlines, elevation variances, or any other unusual condition that made the
road unsafe when used by
exercising due care [citations], and Brenner cites no authority that a
dangerous condition exists absent such factors.
as here, the City argues, there was no unusual condition that created a
substantial risk of injury. The
dangerous condition existed as a matter of law, affirming the trial court’s
dismissal of the case at the pleading stage.
(Id. at pp. 443-444.)
In
Cerna, an unlicensed motorist struck
six people, killing one and injuring the others. The pedestrians were a family on their way to
a nearby school. The surviving
pedestrians and family members brought an action against the city for the
alleged dangerous condition of the intersection and against the school district
for failing to ensure safe school access.
(Cerna, supra, 161 Cal.App.4th
at pp. 1344-1345.) The plaintiffs
enumerated seven factors which they alleged created a dangerous condition at
the intersection: (1) the crosswalk was
painted white, not yellow; (2) there was no sign painted in the approaching
roadway with
XING’â€; (3) there was no traffic signal; (4) there were no crossing guards; (5)
signs warning of the presence of student pedestrians were either missing or in
an incorrect position; (6) the crosswalk was not painted with diagonal or
longitudinal lines; and (7) there were no blinking lights in the pavement along
the parallel painted lines of the crosswalk.
(Id. at p. 1348.) The Court of Appeal affirmed the trial
court’s grant of summary judgment on the question of whether a dangerous
condition of public property existed at the intersection, holding that “Whether
considered independently or cumulatively, the identified features of the intersection
did not create a dangerous condition.†(
the City argues, the lack of functioning flashing lights at an intersection is
not a dangerous condition of public property as a matter of law.
Next,
the City cites Sun v. City of Oakland (2008)
166 Cal.App.4th 1177 (Sun). In Sun,
a pedestrian was struck by a car and killed while attempting to cross an
unmarked pedestrian crosswalk. Her
family sued the City of Oakland, alleging that her death was caused by the
dangerous condition of the intersection where the accident occurred. The City of Oakland moved for summary
judgment, arguing that the intersection was not in a dangerous condition as a
matter of law. The trial court granted
the motion, and the Court of Appeal affirmed.
(Id. at pp. 1180-1181.) The crosswalk where the pedestrian tried to
cross had been marked with painted stripes in the past, but it was unmarked at
the time of the accident. One driver
approaching the intersection stopped to allow the pedestrian to cross, but as
she emerged from behind the stopped car and into the adjacent lane of traffic,
a car moved into that lane from behind the stopped car and struck her. The plaintiffs’ key allegation regarding a
dangerous condition was the City of Oakland’s failure to re-mark the
intersection with painted stripes after having made it more pedestrian friendly
by the installation of “bulb-outs.†(
not a dangerous condition. In addition,
the court noted: “[A]ppellants do
not allege any unusual physical characteristics about the crosswalk where Ms.
Peng was killed, such as any visual obstructions which would establish a
dangerous condition. For example,
appellants did not allege or produce any specific facts describing any
particular trees, shrubbery, shadows or insufficient lighting concealing the
presence of pedestrians or the crosswalk itself.†In the absence of any such obstructions or unusual
characteristics, the intersection did not pose a dangerous condition as a
matter of law. (Id. at pp. 1189-1190.)
The
Sun court found it significant that
one of the two cars approaching the intersection did stop for the pedestrian,
noting: “Moreover, the motorist who was
traveling in the same direction as Jackson had come to a complete stop prior to
Ms. Peng’s entering the crosswalk.
It 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.†(
1190.) The same can be said of the
conditions at the intersection under scrutiny here, as one car did stop for
appellant.
Finally, the City cites
198 Cal.App.4th 1058 (Salas). In Salas,
a pedestrian was struck by a vehicle while crossing a marked intersection in
the City of Victor. (
for wrongful death and related causes of action, alleging that a dangerous
condition of public property existed at the accident location. Their claim was based on the lack of proper signage,
controls or signals; failure to provide safe streets or highways; failing to
design proper signage, controls or signals; failure to have traffic control
devices in place; placing a crosswalk in the location without proper safety
devices; failing to follow recommended standards as to the location of the
crosswalk; failing to provide the recommended crosswalk design for the
location; and failing to properly enforce and/or control speed in the area. (Id. at
p. 1062.)
The evidence presented by Caltrans established that the driver
encountered two yellow pedestrian signs as well as a PED XING stencil prior to
crossing the intersection where the accident occurred. Visibility was clear and there were no sight
obstructions at the intersection. (
1063.)
The Court of Appeal affirmed the trial court’s grant of
summary judgment, finding:
“From
this evidence of a well-marked crosswalk at an intersection with clear sight
lines where there was no report that a pedestrian had previously been involved
in an accident, the trial court properly concluded that Caltrans made a prima
facie showing that no condition of property ‘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.’
[Citation.]â€
(Salas, supra, 198 Cal.Ap.4th at p. 1071.)
The
Salas court further found that the
plaintiffs had failed to identify a triable issue of material fact on this
issue. (Salas, supra, 198 Cal.App.4th at p. 1075.)
The City compares the facts of Salas to the facts before us.
As in Salas, the City argues,
the undisputed evidence shows that
the crosswalk is located on a straight and level road; with no curves or sight
obstructions for either motorists or pedestrians; no blind corners, obscured
sight lines, elevation variances, or unusual conditions that made the road
unsafe to pedestrians or motorists using due care. Further, as in Salas, there were two signs notifying the oncoming driver of a
pedestrian crosswalk, as well as painted lines marking the crosswalk. In addition, in the matter before us, there
was an amber flashing light warning the driver that there were pedestrians in
the crosswalk.
Pursuant to the case law described above, the City has set
forth a prima facie case that the subject crosswalk was not a dangerous
condition as a matter of law.
Appellant has failed to show that a triable issue of fact exists
Appellant emphasizes that the
question of whether or not features of public property create a dangerous
condition under section 835 is generally reserved for the trier of fact. (Bonanno
v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148
[affirming jury verdict finding that the location of a bus stop was a dangerous
condition of public property where bus patrons had to cross a busy thoroughfare
at an uncontrolled intersection].)
Appellant emphasizes that the City abandoned its maintenance of the
embedded lights without notifying local residents or users of the subject
crosswalk that most of the embedded lights were not functioning. Appellant argues that the City thus “lured†users,
including appellant, into a false sense of security in crossing at the
crosswalk.
Appellant cites numerous
cases which, he argues, show that a reasonable juror could conclude that the
conditions at the crosswalk where appellant was injured created a substantial
risk of injury to pedestrians. As set
forth below, we find the cases cited by appellant to be distinguishable.
Appellant
first points to De La Rosa v. City of San
Bernardino (1971) 16 Cal.App.3d 739 (De
La Rosa), which was an appeal from the trial court’s grant of a directed
verdict for the defendant. The
plaintiffs were three individuals riding in a car on Pepper Street in San
Bernardino. Their car collided with a
vehicle traveling on Rialto Avenue after the driver of their car failed to see
the stop signs located on Pepper Street at the intersection of Rialto
Avenue. There was evidence that a walnut
tree and shrubbery at the intersection impaired the visibility of the stop sign
to such an extent that it was barely visible during the day and could not be
seen by a southbound motorist at night.
There was also evidence that the painted “Stop Ahead†legend on the
sidewalk was faded. The Court of Appeal
reversed the grant of directed verdict, holding that “although a public entity
is not liable for failure to install traffic signs or signals [citations], when
it undertakes to do so and invites public reliance upon them, it may be held
liable for creating a dangerous condition in so doing. [Citations.]â€
(Id. at p. 746.) The court found that reasonable minds could
differ as to whether the location of the stop sign created a dangerous
condition:
“In
the present case one of the crucial factual issues was whether the position of
the stop sign constituted a dangerous condition. From the evidence heretofore summarized, it
is manifest that reasonable minds could well differ on that issue.â€
(
746.)
The
matter before us does not involve a hidden or obstructed traffic sign. In contrast to De La Rosa, appellant has not argued that the pedestrian crossing
signs, or the amber flashing light, were positioned in such a manner as to be
barely visible. Instead, those signs
were apparent to a driver using due care.
The De La Rosa case does not
convince us that summary judgment was improper here.
Next,
appellant cites Teall v. Cudahy (1963)
60 Cal.2d 431 (Teall). In Teall,
a seven-year-old child was hit by a truck when crossing an intersection. The plaintiff argued that the signal designed
to guide pedestrians across the crosswalk in question was not visible from
where the child commenced crossing.
Instead, the only signal visible to her was one that indicated it was
safe to cross. (Id. at p. 433.) The
plaintiff argued that the arrangement of lights at the intersection constituted
a dangerous or defective condition of public property. In reversing a grant of summary judgment in
favor of the city, the Court of Appeal stated, “defendant undertook to control
traffic at the intersection and invited reliance on the signals. It may be held liable if it created a
dangerous or defective condition in doing so.
[Citations.]†(
where the child was standing could not see the signal that was intended to
guide her safely across. Instead, she
could only see a signal which would indicate to her that oncoming traffic was
stopped. Thus, a reasonable person could
have concluded that the placement of the signals created a dangerous
condition. Even if both parties -- the
driver and the pedestrian -- were acting with due care, an accident could occur
due to the placement of the signals.
Here, there is no contention that the placement of the signals would
lead a person acting with due care to cross at a time when it was not yet safe.
Appellant argues
that here, as in Teall, the
conditions at the subject crosswalk created a false sense of safety. Appellant fails to acknowledge that here,
unlike in Teall, one of the parties
-- the driver -- failed to act with due care, ignoring the visible signs and
lights.
Appellant next
cites Mathews v. State of California ex
rel. Department of Transportation (1978) 82 Cal.App.3d 116 (
the plaintiff’s car was struck broadside by another vehicle in an intersection
where the traffic lights were malfunctioning.
The plaintiff alleged that the traffic lights were operating under the
supervision and control of the state, and that the state had been informed
several times on the day of the accident that the traffic signal lights were
malfunctioning, creating a highly dangerous situation at a heavily traveled
intersection. Specifically, the electric
signal controlling east-west traffic was continuously green (go) and the signal
controlling north-south traffic was continuously red (stop). (Id. at
p. 119.) The plaintiff appealed after
the trial court granted judgment on the pleadings for the defendant. The Court of Appeal reversed, finding that
the condition at the intersection could not be found not dangerous as a matter
of law. (Id. at p. 122.)
Specifically, the court explained, the motorist traveling through the
green light would have no knowledge that the lights were malfunctioning, and
may be “deceptively lulled into a sense of freedom from interference by cross
traffic.†(Id. at p. 121.) At the same
time, out of exasperation and impatience, the motorist stuck at the red light
might reduce or abandon caution and increase the risks. (Id. at
p. 122.) Under the circumstances, the
Court of Appeal was unable to conclude that the intersection was not dangerous
as a matter of law. (
Appellant argues
that here, as in Mathews, the
pedestrian crossing did not know that the embedded lights were not
functioning. Thus, appellant argues, the
malfunctioning lights created a trap for pedestrians.
We disagree. The trap in Mathews was created in part by a red light that was stuck on the
stop signal. Thus, even a motorist
exercising due care, who had stopped in accordance with the law, was likely to
abandon caution and proceed into the intersection. Here, the driver who hit appellant had no
such inducement to take risk. Instead,
had he been using due care, he would have noted the pedestrian crossing signs
and the flashing amber light, and appellant would have been able to cross the
intersection safely. Appellant has
failed to convince us that the malfunctioning embedded lights created the same
sort of trap that existed in Mathews.
Finally, appellant
cites Cole v. Town of Los Gatos
(2012) 205 Cal.App.4th 749 (Cole). In Cole,
a park attendant who was struck by a vehicle brought an action against the town
alleging a dangerous condition. At the
time of the accident, the plaintiff had parked her vehicle along a gravel strip
between the park and the edge of a road. At the moment of impact, she was loading a
bicycle into her trunk. A driver who had
been drinking alcohol veered off the road and collided with the plaintiff as
she loaded her vehicle. (
against the town, the plaintiff argued that the town failed to allow adequate
time and distance for the safe merging of traffic; failed to provide a
reasonable and efficient barrier between the parking area and the road; failed
to properly construct and maintain the parking area; or, alternatively, failed
to prohibit or limit parking in the area, among other things. (Id. at
p. 755.) The town was granted summary
judgment on the ground that the plaintiff was unable to establish that any of
the stated characteristics of the property was the cause of her injuries.
The Court of
Appeal reversed. The court noted that
plaintiff’s theory was that the configuration of the road itself and the gravel
parking area was such that drivers were induced to leave the road and swerve
onto the parking area. The court further
noted that the plaintiff had presented evidence to support this theory, such as
a declaration from a neighbor who had just turned left into her driveway when the
accident occurred. The neighbor declared
that nearly every time she made the left with cars behind her, someone would
exit the road and pass her on the right, thus driving into the gravel parking
area. Another witness stated that he saw
cars stack up behind vehicles attempting to turn left, and about once every two
weeks drivers would pass such cars by exiting the road and driving on the
gravel area. Another witness reported
seeing cars execute U-turns using the gravel area. (Cole,
supra, 205 Cal.App.4th at pp. 759-760).
Under the circumstances, the Court of Appeal found sufficient evidence
to present a question of fact to the jury:
“The foregoing
evidence would seem to amply support a finding that a danger existed at the
site of the accident of just the kind of injury plaintiff sustained. It would also support the attribution of this
danger to the physical characteristics
of the property. At least three such
characteristics could be found to constitute an inducement or temptation for
drivers to act as Rodriguez did: the
presence of driveways across the street from the graveled area, which provided
an occasion for some drivers to turn left, which in turn required them to stop
and wait for oncoming traffic to clear; the absence of a second eastbound lane,
which resulted in the formation of obstructions or stalls behind left-turning
drivers; and the narrowness of the pavement, which made it impossible to pass
such an obstruction on the right without entering the graveled area.â€
(
The
driver’s intoxication was not a bar to a finding of liability on the part of
the town. The court specified: “The status of a condition as ‘dangerous’ for
purposes of the statutory definition does not
depend on whether the plaintiff or other persons were actually exercising
due care but on whether the condition of the property posed a substantial risk
of injury to persons who were exercising
due care. [Citation.]†(Cole,
supra, 205 Cal.App.4th at p. 768.)
Thus, in Cole, the court was persuaded
that the conditions of the road and parking area at issue induced even careful
drivers to swerve off the road into the parking area, thus creating substantial
risk to pedestrians.
Here, unlike in
that the condition of the property posed a substantial risk of injury where
drivers are exercising due care.
Instead, the flashing amber light, the pedestrian crossing signs, and
the painted crosswalk would induce a careful driver to slow down and watch for
pedestrians. Unlike the circumstances in
Cole, no characteristic of the
property would induce a safe driver to engage in any action that would put a
pedestrian at risk.
In sum, we find
that the cases cited by appellant do not suggest that a reasonable juror could
find a dangerous condition of public property existed at the intersection of
Valley Boulevard and Meeker Avenue on the evening of the accident. Instead, no physical condition of the
property would lead to a substantial risk of injury as a matter of law. In particular, there is a painted pedestrian
crosswalk; a pedestrian crosswalk sign and signal in each direction; and a
large, amber light which flashes in each direction when activated. Unlike the cases cited by appellant, no
physical characteristic of the intersection would induce drivers to act in a
way that created risk, or lull pedestrians or drivers into a false sense of
safety. Under the circumstances, the
malfunctioning embedded lights are trivial defects as a
VI. Section 830.8 immunity
Having
determined that the defect at issue was trivial as a matter of law pursuant to
section 830.2, we need not consider the question of whether the defect at issue
falls into the categories of immunity provided by sections 830.4 and
830.8. However, we briefly discuss these
statutes and related case law in order to fully address appellant’s argument
that the City’s failure to maintain the embedded lights created a trap for
unwary members of the public.
Section
830.4 specifies that a condition is not dangerous “merely because of the
failure to provide regulatory traffic control signals, stop signs, yield
right-of-way signs, or speed restriction signs, as described by the Vehicle
Code, or distinctive roadway markings as described in Section 21460 of the
Vehicle Code.†(§ 830.4.) The City takes the position that the absence
of flashing lights in the crosswalk is a failure to provide such signals as set
forth in section 830.4, and thus is not dangerous as a matter of law.
For
those traffic signals not specifically referenced in section 830.4, section
830.8 provides immunity. Section 830.8
provides that a public entity is not liable for an injury caused by any traffic
or warning signals, signs, markings or devices described in the Vehicle
Code. However, the statute specifies
that “Nothing in this section exonerates a public entity or public employee
from liability for injury proximately caused by such failure if a signal, sign,
marking or device (other than one described in Section 830.4) was necessary to
warn of a dangerous condition which endangered the safe movement of traffic and
which would not be reasonably apparent to, and would not have been anticipated
by, a person exercising due care.†(§
830.8.)
Relying
on section 830.8, appellant argues that a reasonable person could conclude that
the City’s actions in failing to maintain the embedded lights, and failing to
warn the public that the lights were not functioning, created a trap for pedestrians
such as appellant who acted in reliance upon such lights.
Appellant
cites several cases in support of this theory.
(See Bakity v. County of Riverside
(1970) 12 Cal.App.3d 24 [stop sign placed about 36 feet east of the east edge
of the street and near trees could be considered a dangerous condition of
public property because trees obstructed the view of approaching vehicles, and
because the sign was placed 36 feet beyond where the oncoming vehicle was
supposed to stop, which is not where such signs are normally placed];
Cal.App.3d 489 [creation of a dangerous condition was an issue of fact for the
jury where property was unstable and sign warning of mudslide danger was not
very visible and could not be read by the driver of a car traveling between 45
and 55 miles per hour]; Hilts v. County
of Solano (1968) 265 Cal.App.2d 161 [jury could find dangerous condition of
public property where the intersection was dangerous not only because of a
failure to provide warning or regulatory signs but also because of the presence
of trees, the differences in elevation between the roadway grades and adjoining
fields, and the method of striping the intersection].)
The
cases cited by appellant do not suggest that the nonfunctional embedded lights
created a trap under the circumstances of this case. The lights were not necessary to warn
motorists of a dangerous condition.
Instead, they were additional safety measures provided to pedestrians
using a well-marked crosswalk. Cars
approaching the intersection had several other sources available to warn them
when a pedestrian was in the crosswalk.
There were no trees or other obstructions blocking oncoming vehicles
from seeing the pedestrian warning signs or the flashing amber light. Nothing impaired a motorist driving with due
care from seeing the warning signs, and nothing lulled a careful motorist into
a dangerous situation.
Further,
we note that nonfunctioning lights, in general, do not give rise to liability
on the part of a public entity. In
issue. There, the deceased was traveling
through an intersection during a power outage.
In discussing the issue of whether a dangerous condition existed at the
intersection, the Chowdhury court
acknowledged that where the government creates a trap and thereby causes an
accident to occur, it may be held liable.
However, no liability attaches where the lights in question are not
functioning at all:
“‘When the [traffic]
lights were turned off, their defective condition could no longer mislead or
misdirect the injured party.’
[Citations.] The same result
obtains whether the traffic signals are extinguished by design or by accident.â€
(
The
Chowdhury court explained that “when
the signals were extinguished during the power outage, the City did not invite
the public to rely on the signals as a means of controlling the right-of-way at
the intersection.†(Chowdhury, supra, 38 Cal.App.4th at p. 1195.) Similarly, the City did not invite
pedestrians to rely on the malfunctioning embedded lights at the intersection
of Valley Boulevard and Meeker Avenue.
Instead, those lights “gave no indication at all, and did not mislead or
misdirect†anyone. (Ibid.)
In
light of the law discussed above, we must reject appellant’s argument that the
conditions at the intersection in question created a trap for pedestrians.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
______________________________,
J.
CHAVEZ
We concur:
______________________________, P. J.
BOREN
______________________________, J.*
FERNS
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
name="_ftn1" title="">[1] All further statutory references are to
the Government Code unless otherwise indicated.
name="_ftn2" title="">[2] The City has included in its
respondent’s brief several arguments surrounding the trial court’s alleged
error in admitting appellant’s expert’s report into evidence. Under California Rules of Court, rule
8.108(g), respondent was required to file a cross-appeal within 20 days after
the superior court served notice of the first appeal. No such cross-appeal is contained in the
record of this case, therefore we have no jurisdiction to consider respondent’s
claims of error. (Cal. Rules of Court,
rule 8.108(g)(1) [must file notice of cross-appeal within 20 days of clerk’s
service of notice of appeal from same judgment]; Green Tree Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967)
66 Cal.2d 782 [the timely filing of a notice of appeal, or cross-appeal, is a
jurisdictional matter].)
