THOMAS METCALF v. COUNTY OF SAN JOAQUIN

Filed 5/23/06

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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     APPEAL from a judgment of the Superior Court of San Joaquin County, Elizabeth Humphreys, Judge.  Affirmed.

     Law Offices of Tony J. Tanke and Tony J. Tanke; Tabak Law Firm and Stewart M. Tabak; Law Offices of Lawrence Knapp and Lawrence M. Knapp, for Plaintiffs and Appellants.

     Law Offices of Brunn & Flynn, Charles K. Brunn and Andrew N. Eshoo, for Defendant and Respondent.

     This case was brought under the Tort Claims Act (Gov. Code,^[1] § 810 et seq.) for injuries suffered by plaintiff Thomas Metcalf^[2] in an automobile collision that took place in an intersection controlled by defendant County of San Joaquin (the County).

     We hold that to establish liability of a public entity for injury caused by a dangerous condition of its property, a plaintiff must prove that the public entity acted negligently or wrongfully even though the public entity created the dangerous condition.  Because there was substantial evidence to support the jury's findings that there was no negligent or wrongful conduct on the part of the public entity and that the public entity did not have notice of the dangerous condition for a long enough time to have protected against it, we will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

     On the evening of October 6, 2001, plaintiff Thomas Metcalf was dropping off his classmate, Raquel Rodriguez, at her home in French Camp in his parents' Toyota Corolla.  Rodriguez directed Metcalf to take the Arch Road exit off State Route 99 and drive westbound on Sperry Road. 

     Sperry Road ends at McKinley Avenue, forming a T-intersection that requires westbound motorists on Sperry Road to turn right or left.  There are railroad tracks that run parallel to McKinley Avenue.  Before the intersection, Sperry Road rises in elevation to the railroad tracks.  The road then descends from the railroad tracks into the intersection with McKinley Avenue.  On the east side of Sperry Road prior to the railroad tracks, there is a stop ahead sign, a railroad crossing sign, cross bucks (a post with X's), a stop sign, and a stop bar (two white lines on the pavement where motorists are required to stop for the train).  On the west side of the tracks before McKinley Avenue, there is a stop legend (the word STOP on the pavement) and a stop limit line (a white line on the pavement where motorists are required to stop).  Also facing westbound motorists is a yellow sign at the end of the T-intersection with a black directional arrow informing motorists they must turn right or left onto McKinley Avenue. 

     As Metcalf approached the T-intersection, Rodriguez told him to stop before the railroad tracks and then make a left turn onto McKinley Avenue.  Metcalf brought the Corolla to a complete stop before the two lines near the railroad tracks.  As Metcalf attempted to make a left turn onto McKinley Avenue, the Corolla collided with a truck proceeding northbound on McKinley Avenue. The Corolla hit the truck's refrigeration unit fuel tank and one of the truck's axles.  Rodriguez did not remember whether Metcalf stopped at the intersection or whether she had told him he needed to stop.^[3] 

     The County controls the intersection.  Sukhminder Chahal was the County's senior civil engineer in charge of the traffic division for 20 years.  After his retirement in 2002, Chahal became a temporary employee assisting in the traffic division.  According to Chahal, in 1941, the railroad gave the County the right to extend Sperry Road approximately 50 feet across the railroad tracks to connect with McKinley Avenue.  The County was responsible for constructing the connector and the stop controls.  There were various conditions imposed upon the County by the railroad, the state Public Utilities Commission, and the federal railroad safety branch.  One of the conditions was that the connector would not exceed a 4 percent grade.  The grade as built has a 9 percent slope to the stop legend and 6 percent slope to the stop limit line.  The railroad or the Public Utilities Commission inspected the connector and â€