Teng v. State California (Caltrans)

Filed 3/6/07 Teng v. State California (Caltrans) CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Dan Oki, Judge. Judgment is affirmed.

Law Offices of Stephen J Ringhoff, Stephen J. Ringhoff; Law Offices of Eric G. Young, Eric G. Young; Law Offices of Frank J. Christy, Jr., and Frank J. Christy, Jr., for Plaintiffs and Appellants.

Bruce A. Behrens, Chief Counsel, Linda Cohen Harrel, Deputy Chief Counsel, Carol Quan, Assistant Chief Counsel, Charles M. Belenky and Robert W. Vidor for Defendant and Respondent.

_______________________________________

In this appeal, the minor plaintiffs, Janeille Teng and Brenda Teng, through their guardian ad litem Pros Charlie Ouk, and their grandmother, Chrin Ming (plaintiffs), challenge a summary judgment granted to the State of California (defendant). The case stems from a vehicular accident on State Route 60 (the Pomona Freeway). The vehicle in which plaintiffs were riding left the freeway, went down an embankment, and hit a tree. The plaintiffs were severely injured in the accident, and the parents of the two minor plaintiffs (their mother, Seang Teng, and their father, Tong Vann), who were also in the vehicle, died at the scene.

After filing a tort claim with defendant, plaintiffs sued defendant for premises liability.[1] In ruling on defendants motion for summary judgment, the trial court determined that based on (1) the number of accidents in which a vehicle went over the embankment at or near the accident site in the three years preceding the accident, and (2) the number of vehicles using Route 60 at or near the accident site during those three years, defendant established a prima facie case that the condition of the freeway that plaintiffs contend caused their own injuries and their parents deaths (hereinafter, plaintiffs injuries) does not constitute a dangerous condition. The trial court further ruled that because plaintiffs did not demonstrate that the number of prior accidents in that three-year period exceeds ordinary statistical probabilities for the number of vehicles traveling along that portion of the freeway, plaintiffs did not present a triable issue of fact concerning whether that portion of the freeway constitutes a dangerous condition.

Our examination of the record convinces us the summary judgment should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The subject accident occurred on September 21, 2003, at approximately 11:00 a.m., just west of the Crossroads Parkway off-ramp of the Pomona Freeway/Route 60 in the County of Los Angeles. Immediately prior to the accident, the vehicle in which plaintiffs were riding, an SUV (Toyota 4-Runner), was traveling westbound on the freeway. There are five 12-foot wide westbound lanes. The roadbed is elevated. In his report, a California Highway Patrol officer listed the paved shoulder to the right of the westbound lanes as 11 feet wide in one place in the report, and 9 feet wide in another place in the report. To the right of the paved shoulder is an unpaved gore area, and then to the right of that are the Crossroads Parkway on-ramp to the freeway, a paved shoulder outside of the on-ramp, an asphalt dike, and the slope of an embankment that has trees.

The decedent Seang Teng was driving the Toyota 4-Runner (hereinafter plaintiffs vehicle) at the time of the accident. She decided to change lanes, moving to the right. She noticed that a vehicle behind hers was also moving into that same new lane and so she swerved back into her original lane. At that point she lost control of the vehicle and veered abruptly to the right across several freeway lanes, continuing across the paved shoulder, and across the unpaved gore point area, the on-ramp, and the shoulder outside the on-ramp. Then plaintiffs vehicle went down the embankment and struck a tree. It sustained major rollover damage.

The defendants guidance documents which are used to determine when it may be appropriate to place guardrails recommend consideration of guardrails in situations where the embankment is as high and as steep as those present at the location of the accident. A guardrail at the top of the embankment would itself be a fixed object within 25 feet of the on-ramp and as such it presents a hazard and should not be placed unless there is need for it.[2]

Plaintiffs filed this action on August 27, 2004 and their operative complaint (complaint) was filed on February 2, 2005. The defendant filed its motion for summary judgment on September 6, 2005.

1. Defendants Factual Presentation

The tree that plaintiffs vehicle struck when it went down the embankment was more than 30 feet from the edge of the traveled way of the freeway. There is no drop‑off/pavement discontinuity along the path that plaintiffs vehicle took until the outside of the paved shoulder that borders the Crossroads Parkway on-ramp.

Defendant presented, in support of its motion for summary judgment, the declaration of David Royer, a civil engineer and traffic engineer holding California licenses in those areas. Royer stated he has 40 years of experience practicing in all aspects of highway and traffic engineering, including highway design, traffic operations, construction, maintenance, and public works management. He retired in 1996 from the City of Los Angeles Department of Transportation, holding the position of Principal Engineer. He has performed or approved over 20,000 traffic engineering design plans, and he qualified to testify in court as a civil and traffic engineer approximately 80 times. He reviewed the traffic collision report for the subject accident, computer generated lists of accidents and traffic volumes on Route 60 in the vicinity of the accident, survey data for the embankment that plaintiffs vehicle traversed, the approved plans for the construction of Route 60 at the site of the accident, and the abovementioned traffic manual for guardrails, median barriers and crash cushions.

Royer stated in his declaration that the top of an embankment is known as the hinge point and the bottom as the toe of the slope. Here, the total height of the subject embankment is 16.5 feet, and the lateral distance from the hinge point to the toe of the slope where plaintiffs vehicle left the road is 30 feet, and therefore the steepness of the slope (the run over the rise) is 1.80:1. The States plans called for a steepness of 2:1, and because there are often minor variances when building earthen embankments, in the opinion of Royer, a slope of 1.80:1 is within engineering tolerances.

Royer addressed the States guidelines for when guardrails should be installed, including embankment guardrails and guardrails at fixed objects, and concluded, based on his analysis of the defendants own factors, that use of a guardrail where the accident occurred was not required. He noted that just east of the accident site, a guardrail was placed because the embankment is higher there.

Royer also addressed the accident history of the location where the subject accident occurred, looking at statistics for three years prior to that accident. He stated that in the three-year period, there were 284.7 million westbound motorists that drove past the site of the subject accident, and seven instances of vehicles going off the highway and down the embankment. Based on those two statistics, he calculated that the incidence of accidents was less than 1 in 35 million.[3] Of those seven accidents, only two resulted in injuries, and none resulted in deaths. He stated that if the eight vehicles that went over the embankment (including plaintiffs) had struck a guardrail, there is a substantial likelihood that many of them would have been projected back into traffic, which could have resulted in more vehicles being involved, and more injuries.

Royer opined that defendants engineers who approved the plan for the on-ramp and embankment at the accident site used sound and reasonable engineering judgment in both design and construction, including the height and slope of the embankment and the decision to not install a guardrail there. He further opined that the accident site is not a dangerous condition because the risk posed to careful users of the highway at that location is not substantial. He based his opinions on his background, education and experience in roadway design, construction and traffic operations, his review of the available records regarding the design and construction of the accident location and traffic volumes, and his field investigation.

George Olguin also submitted a declaration in support of defendants motion for summary judgment. Olguin has a bachelors degree in landscape architecture, has been a licensed landscape architect since 1998, and is employed by Californias Department of Transportation in Los Angeles. He has designed or supervised the design of over 75 landscaping projects for freeway embankments, the majority of which use trees in the landscaping. He inspected the site of the accident in December 2004, and the tree that plaintiffs vehicle hit was still there, in its fallen state. The landscaping at that site was planted in 1982 after being approved by the Permits Branch of the Department of Transportation that same year. Engineers and other licensed professionals in the Permits Branch review permit applications to ensure they conform to guidelines and standards promulgated by the Department of Transportation. The landscape plan for the accident site would not have been approved unless the trees were far enough from the traveled lanes of Route 60 to be outside of the appropriate clear zone. The tree that plaintiffs vehicle hit was part of that approved landscaping.

Olguin opined that the landscaping in place at the time of the accident conformed to the permitted landscape and approved standards, and the plans set out in that permit were reasonably approved by the Permits Branch. (He testified at his deposition that he saw nothing in archives to indicate the landscaping division itself approved the plan.) He is of the further opinion that Route 60 at that location is safe for drivers using due care and the presence of the trees on the embankment does not present a substantial risks to such users of Route 60.

2. Plaintiffs Factual Presentation

As noted, plaintiffs presented the declaration of William Neuman in support of their opposition to the summary judgment motion. Neuman has a masters in engineering, was a full professor of engineering at California State University, Sacramento, from 1971 until he retired in 1997, and is a professor emeritus there. He has qualified to testify as an expert on traffic engineering issues, including traffic engineering and accident reconstruction, in federal courts and in courts of several states.

Among other things, the opinions he expressed in his declaration were based on his assumptions that the on and off ramps at Crossroads Parkway were added to Route 60 in or about 1982 when it had four westbound lanes; sometime between 1982 and 2003 another westbound lane was added; the federally mandated and posted speed in 1982 was 55 mpg and it was raised to 65 mpg prior to the accident and was so posted; traffic volumes for Route 60 doubled between 1985 and 2000; since 1982 there are more SUVs being used, and those vehicles are known to be relatively unstable because they have a high center of gravity, and loss of control in SUVs is much more common.

He stated that based on his experience, he would expect that consideration was given to using a guardrail when the defendant built the on-ramp, and he observed that Mr. Royer twice calculated the slope severity curve and both times Royer noted that the slope severity requires consideration of a guardrail. He stated he has not seen any document indicating that the on-ramp and landscaping plans were reviewed in combination, especially regarding installation of a guardrail. He opined that if both of the plans are viewed together (the plans for the on-ramp and the landscaping), no reasonable engineer would reject the use of a guardrail for a slope having the severity of the subject slope when such slope also has solid objects such as trees on or at the bottom of the embankment. He opined that a guardrail for the embankment would cost a few thousand dollars and removing the trees from the embankment would cost a few hundred dollars but would probably not be necessary if there were a guardrail. Merely removing the trees would not be sufficient because the slope of the embankment is severe.

Neuman stated the concept of a recovery zone assumes there is a possibility of a motorist recovering control of a vehicle, and whereas a recoverable slope is generally defined as one that is 4:1 or flatter, and a nonrecoverable slope is one between 4:1 and 3:1, and a critical slope is one steeper than 3:1, the subject slope is approximately 2:1, which means a vehicle will likely overturn if it goes down the slope and would contact any fixed object on the slope or on any run-out area beyond the slope. He stated that a vehicle going down the subject embankment would likely overturn, and therefore any impact it would have with a fixed object there would likely not be with its front or side, which would make air bags and side impact beams useless. The expected result is that the roof of a vehicle will be crushed to the floor. He opined the risk to motorists is real and it is not minor or trivial.

He stated the 1982 as built plans submitted with defendants moving papers show a freeway that is different from the freeway as it existed when the accident occurred in that at the latter point in time there were five westbound lanes and in 1982 there were four. The change occurred by widening the freeway, re-striping it, or a combination of both. The significance is that having more lanes results in more lane changes by motorists, which in turn results in more lane change conflicts, such as caused the accident here. Without seeing the plans for the change from four to five lanes, it is difficult to determine if the change decreased the recovery area for such conflicts. Also, the change from a 55 to 65 speed limit is material in that a vehicle going out of control at 65 miles per hour goes farther than if it had been going 55 miles per hour, with the stopping distance being increased from 450-550 feet to 550-725 feet.

Neuman stated the traffic volume has doubled since Route 60 went from four to five westbound lanes, and SUVs, with their high center of gravity, are prone to losing control at freeway speeds in emergency or evasive maneuvers. Indeed, this loss of control resulted in a federal mandate that SUVs manufactured in the United States come with warnings concerning that matter. The combination of more lanes, increased speed, increased traffic volume and SUV use leads to more vehicles going out of control and being exposed to the critical slope and trees which plaintiffs encountered in the accident. This constitutes a dangerous condition of public property, and when the number of lanes increased, the use of a guardrail should have been examined or re‑examined to meet the reasonable engineering standard of care.

Neuman stated he reviewed three CalTrans documents (TASAS [Traffic Accident Surveillance and Analysis System] reports) for the area of Route 60 in which the accident occurred. He stated one shows 18 accidents from July 1996 to July 1999, and only one of those was an over the embankment accident. (Plaintiffs exhibit D.)[4] The other two reports each cover mid-September 2000 to mid-September 2003, and while one shows 15 over the embankment accidents (plaintiffs exhibit E),[5] the other shows eight such accidents (plaintiffs exhibit F),[6] including the subject accident. Neuman stated he cannot explain the discrepancy between those two reports. He noted a significant increase in the number of over the embankment accidents from the first three-year reporting period (plaintiffs exhibit D) to the second one (plaintiffs exhibits E and F).[7] He opined that the increase in such accidents may be due to the increase in westbound traffic lanes, and that defendant should have known of the frequency of over the embankment accidents since defendants own agency generated the statistics.

Neuman also weighed in on the issue of driver due care. He opined that because the driver of plaintiffs vehicle moved back into the lane from which she had come when she realized that another vehicle was simultaneously attempting to move into the new lane, this demonstrates she was not negligent. He stated a witness to the accident testified the other vehicle was in plaintiffs drivers blind spot.[8][9] Neuman opined there was not adequate recovery room for her because her freeway speed makes it likely she would go over the embankment. He opined that once a driver goes over the embankment he will encounter the trees since even if he only went over a few feet, gravity would pull his vehicle down the slope and the vehicles speed could increase. He also opined that guardrails do not push vehicles back into traffic because the guardrails are designed to give on impact, if properly installed, resulting in the vehicle remaining in the lane next to the guardrail. He stated the key is to stop vehicles from going over the embankment.

3. Defendants Reply

In a supplemental declaration, which defendant included with its reply papers, defendants expert, Mr. Royer, addressed the changes in the accident site that plaintiffs Mr. Neuman stated had occurred since the on-ramp was added at Crossroads Parkway. Royer stated that an aerial photograph the accident site shows that the paved width of the freeway was increased by 12 feet when the Crossroads Parkway ramps were installed and this resulted in the westbound side being 60 feet wide. He stated that lanes are typically 12 feet wide, and therefore in his opinion, the existence of the fifth westbound lane was considered at the time guardrails were placed in some locations and not placed in others, including the accident site. Also, although the speed limit was increased from 55 to 65 miles per hour on Route 60, the freeway was actually designed for a speed of 70 miles per hour.

Royer opined that the change in the posted speed limit had little effect on the actual speeds of the drivers using the freeway at the time of the accident, a Sunday morning, in that the drivers typically drove, both then and now, around 60 miles an hour, and studies have shown there is no consistent pattern of increased speed as a result of an increase in posted speed limit, and thus changing the posted speed limit without an actual increase in driving speed is not a changed circumstance. Further, while an increase in traffic volume could be considered a changed circumstance, the traffic volume at the time of the accident was well below the capacity of the freeway and within the volume that the design engineers considered. Royer reiterated that the 40 feet of recovery area/clear zone to the right of the freeway lanes makes having a guardrail unnecessary and shows it was reasonable to not have a guardrail. A 30‑food recovery area/clear zone has been standard for over 30 years. The standard was developed taking into consideration that a percentage of the vehicles using the freeway are pickup trucks. The handling characteristics of a pickup truck is similar to that of SUVs, and for all classes of vehicles, the models currently on the road handle better than vehicles in use in the 1970s.

As noted in footnote 4 ante, included with defendants reply papers was a declaration from Joel Fonseca, a transportation engineer who is employed by defendants Department of Transportation, and who works in the office of traffic investigations and legal support. Fonseca stated he has specific knowledge of the highway and accident database and program from which the accident print outs are derived. As noted in footnotes 5, 6 and 7, he addressed certain of the documents upon which plaintiffs relied in their opposition papers.

Also as described in footnote 6 ante, Fonseca submitted a report (defendants exhibit G), to substitute for the exhibit eight defendant submitted with its moving papers. Exhibit eight is the report to which plaintiffs objected because it missed the location of the subject accident by .01 miles. Fonseca stated this new report/exhibit G is a new list of accidents with the same criteria as Exhibit 8 but shifted so that the subject accident is at the midpoint. It thus lists over embankment accidents from [milepost] 12.74 to 12.94. This meets the criteria set forth in plaintiffs opposition, page 11, lines 6-8. Exhibit G is for the period mid-September 2000 to mid-September 2003, as is defendants exhibit eight, but unlike exhibit eight, which listed eight over the embankment accidents, exhibit G lists six over the embankment accidents, including the two where the vehicles were traveling on the ramp before they left the highway.[10][11]

After reviewing these competing presentations, the trial court concluded that there was no triable issue of fact with respect to the existence of a dangerous condition. It therefore granted defendants motion for summary judgment and it was entered on February 8, 2006. Plaintiffs thereafter filed this timely appeal.

CONTENTIONS

Plaintiffs contend the trial court erred in granting summary judgment because (1) there is a triable issue whether Route 60 was in a dangerous condition at the accident site, (2) defendant did not establish two of the elements of design immunity and therefore defendant cannot claim such immunity in its motion for summary judgment, and (3) the trial court improperly weighed the expert testimony submitted by defendant against the expert testimony submitted by plaintiffs.

We have already discussed the latter of these contentions, and we need not address the second of them because we can decide this appeal on the issue whether the accident site is a dangerous condition.

DISCUSSION

1. Standard of Review

We review, on a de novo basis, the order granting defendants motion for summary judgment. (Price v.Wells Fargo Bank (1989) 213 Cal.App.3d 465, 474.) In doing so, we apply the same rules the trial court was required to apply in deciding the motion. When the defendant is the moving party, it has the burden of demonstrating as a matter of law, with respect to each of the plaintiffs causes of action, that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc.,  437c, subd. (p)(2).)

If a defendants presentation in its moving papers will support a finding in its favor on one or more elements of the cause of action, or on a defense thereto, the burden shifts to the plaintiff to present evidence showing that contrary to the defendants presentation, a triable issue of material fact actually exists as to those elements or the defense. (Code Civ. Proc.,  437c, subd. (p)(2).) That is, the plaintiff must present evidence that has the effect of disputing the evidence proffered by the defendant on some material fact. Thus, section 437c, subdivision (c), states that summary judgment is properly granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Because a summary judgment denies the adversary party a trial, it should be granted with caution. (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 865.) Declarations of the moving party are strictly construed, those of the opposing party are liberally construed, and doubts as to whether a summary judgment should be granted must be resolved in favor of the opposing party. The court focuses on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact. (Id. at pp. 865‑866.) If, in deciding this appeal, we find there is no issue of material fact, we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court, or first addressed on appeal. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481.) If, on the other hand, we find that one or more triable issues of material fact exist, we must reverse the summary judgment.

2. Relevant General Principles Applicable To Public Liability Based on
Dangerous Condition

As a California public entity, defendants liability to plaintiffs, if any, is based on statute. Section 815 of the Government Code states that except as otherwise provided by statute, public entities are not liable for injuries caused by the acts or omissions of the public entities, their employees or any other persons; and a public entitys statutory liability is subject to its statutory immunity and to any defenses the public entity would have if it were a private person.[12]

Section 835 sets out conditions under which a public entity may be determined to be liable for an injury caused by the condition of its property. Section 835 states: Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] 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. Section 835.2 sets out conditions for finding that a public entity had actual notice or constructive notice of a dangerous condition.

Section 830, subdivision (a), defines dangerous condition as a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Section 830.2 states that [a] condition is not a dangerous condition . . . 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. Thus, although whether a dangerous condition exists is usually a question of fact, the issue may be resolved as a question of law when reasonable minds can only draw one conclusion from the facts. (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1194.)

When 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). (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.)  The dangerous condition of the property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care in recognition that any property can be dangerous if used in a sufficiently abnormal manner. . . .  [For example], a public entity should not be liable for injuries resulting from the use of a highwaysafe for use at 65at 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. [Citation.] (Fuller v. State of California (1975) 51 Cal.App.3d 926, 939-940, italics omitted.)

The Fredette court observed that under the doctrine of comparative negligence, proof of a plaintiffs negligence would not necessarily exonerate a public entity from all liability. Instead, it might serve only to reduce the public entitys liability exposure in proportion to the negligence of the plaintiff. (Fredette v. City of Long Beach, supra, 187 Cal.App.3d at p. 131, fn. 6.) The negligence of a plaintiff-user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a dangerous condition in the first instance. [Citations.] So long as a plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his personal lack of due care. (Id. at p. 131, italics omitted.)

In the instant case, these rules translate into the question whether it can be said as a matter of law, as the trial court did, that when viewing the evidence in a light most favorable to plaintiffs, the risk created by the condition of the portion of Route 60 at which the subject accident occurred, 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 that portion of Route 60 was used by drivers with due care. ( 830.2.) As already noted, the issue is not whether the deceased driver of the subject vehicle was using due care.

3. Application to Facts of This Case

Like the trial court, we find that the accident statistics associated with the accident site cause us to find as a matter of law that the risk of harm presented by the accident is minor. As noted in footnote 9, the records show there was essentially one over the embankment accident for every 24 million vehicles that passed that site over a three-year period. Plaintiffs have not presented evidence to raise a triable issue of material fact regarding that statistic. That is, they have not presented evidence showing that the statistic of one over the embankment accident in every 24 million vehicles passing the accident site should have put defendant on notice that the condition of Route 60 at the accident site really is a dangerous condition. They have not presented evidence showing that one over the embankment accident in every 24 million vehicles constitutes an excessive number of accidents because it is sufficiently beyond ordinary statistical probabilities to alert [defendant] of the dangerous nature of the [site]. (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 599-600.)

In Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, the court stated the evidence in that case showed that over a period of four and one-half years there was one accident per 685,000 vehicles that traveled at a T intersection that the plaintiff claimed was a dangerous condition. The street on which plaintiff had been traveling dead ended at the top of the T where the two streets forming the T intersection came together. Beyond the dead end was a parking lot, a three-foot high fence, and then an embankment dropping into a lake. The street at the top of the intersection is 76 feet wide and the parking lot is 114 feet wide. The person driving the car in which plaintiff was riding drove his car over the embankment into the lake. There was fog at the point of the intersection, and the plaintiff asserted there was not adequate warning devices for foggy conditions to warn a driver that the street ended abruptly with an embankment that dropped into a lake. The records showed that despite frequent foggy conditions there, no similar accidents had occurred in the preceding four and one-half years. The court stated the accident statistics indicated the intersection condition was not a dangerous condition and it affirmed the summary judgment granted to the defendant.

We reject plaintiffs assertion that factors such as the additional lane on westbound Route 60, the increased speed on that highway, the increased traffic volume, or the increased use of vehicles prone to rolling over (SUVs), or any combination of those factors, leads to more vehicles going out of control and being exposed to the critical slope and trees which plaintiffs encountered in the accident. Plaintiffs have not presented statistics to show that the 1982 addition of the on-ramp and fifth lane, and the increase in permitted speed from 55 to 65 miles per hour on a highway designed for a speed of 70 miles per hour, have caused accidents where vehicles veer off the right side of the freeway, proceed across the freeway shoulder, and keep going across the on-ramp and its shoulder, up to where plaintiffs assert a guardrail should have been installed, and then over the embankment, where plaintiffs assert that alternatively, the trees should have not been planted or should have been removed. The same can be said regarding the increased use of vehicles that are more prone to roll over, and the increase in the volume of traffic since the 1982 modifications to the westbound side of Route 60 at the Crossroads Parkway. Nor is there evidence indicating that any other factor has resulted in the numbers of over the embankment accidents at the site.

Thus, while plaintiffs accident shows it is possible for a vehicle to go over the embankment and hit a tree, that accident is not a recurring incident at the site. Moreover, the fact that plaintiffs injuries might have been prevented or lessened by having a guardrail or not having the trees is not a basis for imposing liability on defendant since the condition of the freeway at the accident site was not dangerous to begin with. (Dole Citrus v. State of California (1997) 60 Cal.App.4th 486, 494.)

The bottom line is that this case is governed by section 830.2, which requires us to find that the risk of harm created by the condition of Route 60 at the accident site is minor when that portion of the freeway is used with due care in a manner in which it was reasonably foreseeable that it would be used.

Because we find that the evidence demonstrates the risk of harm created by the condition of the freeway at the accident site is minor, we need not, and we do not, address defendants alternative ground for its summary judgment motion, to wit, that defendant has a complete defense of design immunity because the freeway projects received the necessary approvals ( 830.6).

DISPOSITION

The summary judgment is affirmed. Costs on appeal to defendant.

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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[1] Plaintiffs also sued Toyota Motor Corporation and Toyota of Fresno for products liability, however those defendants are not parties to this appeal.

[2] The guidance documents are part of the California Department of Transportation Traffic Manual, section 7-01.3.

[3] Plaintiffs expert, William Neuman, debated Royers calculations. He used one of defendants exhibits (exhibit nine), which showed that in the year 2000, the average daily traffic on Route 60 at the Crossroads Parkway was 262,000. Because the exhibit does not indicate that such number is for westbound traffic only, Neuman halved that number, and then multiplied it by 365 days per year and again by three years (2000‑2003), producing a westbound volume for the three years of 143,445,000. Using the seven over the embankment accidents, he stated the ratio of accidents to driven vehicles is 1:20,000,000, not the 1:35,000,000 stated by Mr. Royer. However, he also stated there was another report that listed 15 accidents, and using that figure, he calculated an accident ratio of 1:9,500,000.

The trial court stated in its tentative ruling (which became its written ruling/minute order on the summary judgment motion), that plaintiffs admitted that the ratio of accidents to drivers traveling westbound at the accident site in a three year period was 1 in 20,000,000. However, at the hearing on the motion for summary judgment, plaintiffs attorney corrected the trial court by observing that when Neuman recalculated the ratio, it was only because Neuman disputed the annual number of drivers going westbound by the accident site, and Neuman was not agreeing with other aspects of Royers calculations, such as the actual number of accidents at the accident site in that three-year period, since Neuman stated there were two different figures for the number of accidents in the three-year period15 and 7.

The trial court responded that it understood that plaintiffs were debating Mr. Royers figures, but the court stated that even if it accepted a ratio of 1 to 9 million, the difficulty is that your expert does not distinguish any of those ratios from the just the statistical probability of there being an accident. The court cited Compton v. City of Santee (1993) 12 Cal.App.4th 591, 599, regarding the need of a plaintiff to demonstrate that the ratio of accidents to vehicles at a site in a period of time is sufficiently beyond statistical probabilities to make that site a dangerous condition.

[4] Defendant addressed this report (plaintiffs exhibit D) in its reply papers. Defendant submitted a declaration from a Joel Fonseca, a transportation engineer employed by defendants Department of Transportation, who works in the office of traffic investigations and legal support. Fonseca stated plaintiffs exhibit D is a report for wet weather accidents only, and this is demonstrated by the fact that all 18 accidents have the letter B in the environmental condition, surface column. (The point of his remark is apparently that there were, or may have been, more over the embankment accidents during that period (July 1996 to July 1999), and they occurred in dry weather.)

[5] Mr. Fonseca stated in his declaration that the title of the report showing 15 accidents (plaintiffs exhibit E) is all accidents over embankment, and he stated this title is a misnomer because it is actually a list of accidents where any object struck was located beyond the shoulder on the drivers right, and this is demonstrated by the fact that all 15 accidents have the letter H in one or more of the location columns. Fonseca stated this report was prepared from criteria he requested.

[6] Fonseca stated this report (plaintiffs exhibit F) is the same as defendants exhibit number eight, and is an accurate list of accidents over the embankment because the eight accidents listed in it have a 24 in the object struck column. Additionally, in two of the eight accidents, the vehicles were traveling on the ramp before they went off the highway, which is indicated by an R in the facility type column.

In their trial court points and authorities, plaintiffs asserted that defendants exhibit eight has no factual basis because it covers milepost distance 12.86 to 12.66, whereas the California Highway Patrol accident report states the accident location is .22 miles east of milepost 12.65, and the CHP states you add the two numbers together to obtain the location of the accident. When you do, the sum is 12.87. Thus, plaintiffs asserted defendants exhibit eight misses the location of the subject accident by .01 miles. Plaintiffs contended that a proper survey would include accidents occurring within .10 miles east and west of where plaintiffs were injured.

As discussed infra, defendant submitted, with its reply papers, an over embankment survey to substitute for its exhibit eight, and in the new survey, the subject accident is midpoint between the east and west ends of the .20 miles surveyed. Defendant refers to this new over the embankment survey as its Exhibit G.

[7] As noted in footnote 4 ante, defendants Mr. Fonseca stated plaintiffs exhibit D only addressed wet weather accidents.

[8] A witness to the accident stated plaintiffs driver was moving from lane two to lane three and the other vehicle was moving from lane four to lane three, and the other vehicle was nearly in lane three when plaintiffs driver began her move into lane three and was honked at by the other driver.

[9] The issue in these types of cases is not whether a plaintiff was negligent; the issue is whether the condition of public property was safe for people using it with due care. The negligence of the plaintiff, if any, is a matter for apportionment of liability if the condition of the property is found to be dangerous.

[10] The reduction in the number of accidents listed in exhibit G presents a different ratio of over the embankment accidents to traffic volume passing the accident site over a three year period. Using plaintiffs own calculation of the number of vehicles traveled westbound on a daily basis over a three-year period, the ratio of 6 over the embankment accidents to that number of vehicles is 1:23,907,500, not the 1:20,000,000 and 1:9,500,000 ratios that plaintiffs calculated but did not rely on. (See fn. 4, ante.) Essentially then, the new ratio is nearly 1 over the embankment accident for every 24 million vehicles passing the subject site over a three-year period.

[11] After defendant submitted its reply papers, plaintiff submitted supplemental points and authorities and another declaration from Mr. Neuman. The trial court ruled it would not consider such papers as they are not authorized by the summary judgment statute. At the hearing on the motion, plaintiffs attorney stated the supplemental papers were filed to meet the introduction of new matter by way of reply that includes the declaration of Mr. Fonseca and exhibits and different calculations by Mr. Royer.

Given that our decision to affirm the summary judgment is based on the issue whether the accident site constitutes a dangerous condition, and not on the issue whether the defendant has a complete defense under the theory of design immunity, we do not find that defendants reply papers necessitated a response from plaintiffs. As set out in footnotes 4 through 6 ante, Mr. Fonsecas declaration gave an explanation to some of plaintiffs exhibits, and it added defendants G, to meet plaintiffs contention that defendants exhibit 8 did not relate to the location of the accident site. Mr. Royers supplemental declaration merely addressed plaintiffs contention that significant conditions (addition of a travel lane, increased permitted speed, increased traffic volume, and SUV usage) had changed since the 1980s when the freeway was modified at the accident site, and it added an analysis of the recovery area for the on-ramp.

Lastly, we find no cause to reverse the summary judgment based on the trial courts rulings on defendants objections to Mr. Neumans original declaration. In one instance, the court sustained an objection to Neumans characterization of plaintiffs exhibit E. Among other grounds, defendant objected that Neuman was misstating the evidence when he stated plaintiffs exhibit E shows there were eight accidents in slightly over six months and then stated it is generally accepted that five similar accidents in the same general location in a year are a red flag that necessitates an investigation. We note that in two other portions of plaintiffs opposition papers, they characterize their exhibit E as addressing a three-year period, not a six-month period, and in one of those two characterizations, plaintiffs state the exhibit shows there were 15, not eight accidents.

The other portion of Neumans declaration to which the court sustained an objection was his statement that while the standards of defendants Department of Transportation require giving consideration to using a guardrail for a slope having the severity curve of the subject embankment, [u]nder federal standards, a barrier is clearly warranted. Defendant objected to the mention of federal standards on grounds the statement is hearsay, and is vague and lacks foundation because no particular federal standard is mentioned and the standard is not provided by plaintiff. In sustaining the objection, the trial court stated: That a guardrail is warranted does [not] mean that it is necessarily required, nor that the location is necessarily dangerous.

On appeal, plaintiffs argue these two rulings against their evidence amount to the trial court weighing defendants experts testimony against plaintiffs experts testimony because the trial court overruled all of plaintiffs 18 objections to Mr. Royers and Mr. Olguins declarations (most of which were on hearsay and lack of foundation grounds).

In overruling plaintiffs objections, the court stated Royer and Olguin were giving opinions as experts and [e]xperts may base their opinions upon hearsay and other inadmissible evidence that is of a type that reasonably may be relied upon by experts. (See Evidence Code Section 801 (b).) If plaintiffs can demonstrate that the bases of [Royer and Olguins] opinions are not true or authentic, it may affect the weight of [their] opinions, but not their admissibility.

Whether the trial courts evidentiary rulings amount to weighing evidence is not relevant in this appeal because we are affirming the summary judgment on the basis of defendants prima facie evidence that the ratio of accidents involving vehicles going over the embankment to the volume of traffic supports a conclusion that the accident site is not dangerous.

[12] Unless otherwise indicated, all references herein to statutes are to the Government Code.