Gurican v. County of San Luis Obispo

Filed 8/20/07 Gurican v. County of San Luis Obispo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

Plaintiff Aaron Gurican appeals a summary judgment entered in favor of defendant County of San Luis Obispo (County) in his personal injury action. He alleged that the County maintained a negligently designed intersection which was a substantial factor in his accident with a motorist. We conclude, among other things, that Gurican met his burden to show triable issues of fact on negligence and causation. From the evidence he presented a trier of fact could reasonably infer that the County maintained a dangerous road condition which substantially increased the risk that Gurican would be injured. We reverse.

FACTS

At 11:00 p.m. on April 9, 2002, Gurican was riding a motorcycle northbound on Los Ranchos Road heading towards the intersection with Highway 227 in San Luis Obispo County. The motorcycle did not have a working headlight. Gurican therefore tied a flashlight to the fender as a substitute. As he approached the intersection the flashlight was on.

Matthew Wenz was driving an automobile southbound on Highway 227 approaching the same intersection and was intending to make a right turn onto Los Ranchos Road to ultimately proceed in a southbound direction. Wenz made the right turn onto Los Ranchos Road.

The road at that point curves sharply to the left and is "banked" with a substantial elevation. This requires drivers to make a "sharp left-hand turn" and they often "drop down to the inside of the curve." The design of this curve increases a motorist's "propensity to cross the double yellow [center] line while executing the left handturn." Highway experts call this maneuver "cut[ting] the corner" and it is a common occurrence on this curve. In making his turn Wenz cut the corner, drove to the left of the center line and collided with Gurican.

Before the collision Wenz looked down the road but did not see any oncoming vehicles. There were bushes and vegetation on the inside radius of the curve on Los Ranchos Road at the time of the accident. The County is responsible for the design, maintenance and inspection of that area.

Gurican sued Wenz and the County for negligence. He alleged that the County negligently designed the intersection, there were "[sight] obstructions" and the County's negligence "caused or contributed to the occurrence of this accident."

Motion for Summary Judgment

The County moved for summary judgment. In his declaration David Flynn, a County traffic engineer, said the design and alterations to Los Ranchos Road were "conducted at the direction and . . .  supervision of licensed engineers employed and/or retained by the County." He said, "[t]here are four (4) signs warning of the roadway curve" and "[t]here are no vision obstructions for a driver proceeding west, southwest, and/or south in the right lane on Los Ranchos Road." Gurican filed declarations in opposition. The trial court denied the motion.

The County filed a renewed motion for summary judgment based on Wenz's deposition. It claimed his testimony showed that the only reasonable inference was that there were no visual obstructions preventing Wenz from seeing traffic coming from the opposite direction. In answer to one question Wenz said he did not blame "the bushes on the side of the road in any way for this accident." The County claimed that because Wenz testified that he looked, could see no oncoming traffic and then decided to "cut the corner," he caused the accident. It claimed the curve and the "condition of the roadway" were therefore irrelevant.

In opposing summary judgment Gurican cited other parts of the deposition where Wenz said there were "blind spots" and "places" where "you're not able to see as you turn." Wenz testified that had he seen lights or oncoming vehicles he would not have cut the corner. Gurican also attached the depositions of Flynn, Raider Birtcher, and Jacqueline Diaz. Flynn testified that in 1997 the County had changed the configuration of the Los Ranchos Road curve from a 60 foot radius to a 50 foot radius. This meant that drivers would have to make "a shaper turn" around the curve.

Birtcher said that drivers routinely "cut the corner," the way Wenz did, on that curve. Diaz, a California Highway Patrol Officer, testified that while conducting an accident investigation she saw another driver cut the corner on that curve.

Gurican attached declarations of four experts. David Yoshida, a vehicle safety consultant, said there were bushes on the inside radius of the curve creating "a line of sight obstruction obscuring the vision of [Wenz] of the oncoming motorcycle." It also blocked Gurican's view of Wenz's car. He said this obstruction was "a substantial factor in the occurrence of the accident."

Edward Ruzak, an expert in transportation and traffic engineering, stated that the sharp left hand turn design "increases the propensity of vehicular traffic" to "cross the double yellow lines.'' He said the County should have installed "channelizers." They are "vertical reflectorized plastic posts . . . typically 28 to 36 inches high" to prevent "vehicles from entering opposing lanes of travel." He concluded that the design deficiencies of the curve "were a substantial factor contributing to the dangerous condition of the roadway."

Peter Francis, an expert in biomechanics, said the design of "Los Ranchos Road in the area of the accident is dangerous," it forces drivers to be "confronted with a sharp, elevated/banked left-hand turn." The "sharp curves . . . force drivers to focus their visual attention on navigating the curves, and as a result, visual attention is taken away from . . . oncoming traffic." He said the "small radius of curvature" encourages drivers to "cut the corner."

Charles Plemons, a motor vehicle safety consultant, said that the design of the curve with its "super elevation [banking]" and sharp left hand turn "was a substantial factor in causing this accident." He also noted that there was "a sight obstruction" for "both northbound and southbound vehicles" because of "vegetation" on the "inside radius of the curve of Los Ranchos Road."

Wenz also filed an opposition to summary judgment. In his declaration he said, "I have seen a lot of vehicles, prior to the night of this accident, 'cut the corner' as I did on the night in question." "Had I seen any other vehicle or motorcycle traveling closer to me, I would have made an effort not to cut the corner . . . . '" He stated that had there been barriers or other "roadway devices" between the north and southbound lanes there would have been no accident. He noted that at his deposition, "I was asked by an attorney if I was 'physically compelled' to go to the wrong lane of travel. I responded: 'It's the curve.'"

The trial court denied the motion for summary judgment. The County filed a motion for reconsideration. It claimed that a recent decision, City of San Diego v. SuperiorCourt (Hanson) (2006) 137 Cal.App.4th 21, demonstrated that summary judgment should be granted. The trial court granted reconsideration, determined that its prior rulings were erroneous and granted summary judgment for the County.

DISCUSSION

I. Granting The Motion For Reconsideration

Gurican contends that the trial court erred by granting the County's motion for reconsideration. He claims the motion did not comply with the requirements of Code of Civil Procedure section 1008 because it was not based on a change in the law or new facts.

But the trial court ruled that the alleged deficiencies in the County's motion were irrelevant. It said that it had the "inherent authority to reconsider its own rulings." The trial court was correct in ruling that it had the power to reconsider its prior rulings sua sponte. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.) But, as shown below, the court was right the first time and erred by granting summary judgment.

II. Triable Issues Of Fact

Gurican contends that he met his burden to defeat summary judgment by presenting evidence showing there were triable issues of fact. We agree.

"Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers . . . .'" (Ibid.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Ibid.)

"A public entity may be liable for injuries caused by a dangerous condition of its property." (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 233.) Local governments have a duty to maintain their streets and roads to protect the public from conditions which could lead to "a substantial risk of injury." (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149.) "[A] dangerous condition exists when public property is . . . defective in such a way as to foreseeably endanger those using" it. (Id., at p. 148.) "But public property has also been considered to be in a dangerous condition 'because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.'" (Id., at p. 149.) "Whether property is in a dangerous condition often presents a question of fact . . . ." (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1382.) "[B]ut it can be decided as a matter of law if reasonable minds can come to only one conclusion." (Bonanno, supra, at p. 148.)

Gurican contends he presented evidence from qualified experts showing reasonable inferences that: 1) the County negligently designed the intersection, 2) there were visual obstructions on the curve making it a dangerous road condition, 3) the design defects and visual obstructions substantially increased the risks for motorists and 4) these defects and the County's failure to take preventive measures were substantial factors which caused or contributed to the accident. We agree.

Plemons said, "the super elevation [banking] of the curvature of Los Ranchos Road in conjunction with the sharp left-hand turn" cause drivers to "drop down to the inside of the curve." This causes them to "cut the corner" by temporarily moving across the double yellow lines into the path of oncoming traffic. Several witnesses confirmed that it was common to see motorists cut the corner. Brian Simas did a survey of the curve. During a two-hour period he counted 27 vehicles which had cut the corner and crossed the double yellow lines. Plemons said the banking, the curvature and the sharp turn were substantial factors in the cause of this driving pattern and of this accident.

Ruzak said the negligent curve design increased a motorist's "propensity to cross the double yellow line while executing the lefthand turn." Francis said the design distracted the motorist's attention away from the approaching traffic. A trier of fact from this evidence could reasonably infer that the curve was negligently designed and dangerous.

Gurican also presented evidence showing that the County had not taken steps which could have prevented this accident. Ruzak said the County was negligent for not installing "channelizers" to prevent cars from crossing the center lane. Wenz said he would not have crossed the center line if there had been a "barrier or other object located between the north and southbound lanes." Francis said channelizers "should have been used" and such "a measure would have, more probably than not, prevented . . . this accident." (City of San Diego v. Superior Court(Hanson), supra, 137 Cal.App.4th at p. 30; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 804 [public entity failed to place barriers at access location].)

There were also triable issues of fact as to whether there were sight obstructions. Flynn said that there were no visual obstructions to interfere with the line of sight between Wenz and Gurican. But Gurican presented evidence from experts who disagreed. Yoshida and Plemons said that there were bushes on the curve that blocked the sight of both drivers. Francis said, "bushes . . . created a vision obstruction" which was "a substantial factor" in causing the accident. He concluded that Wenz's vision was blocked "for 4 seconds" during which time he travelled 206 feet. Moreover, Flynn's statement about there being no current visual obstructions has limited probative value. Yoshida said someone cut down the overgrown bushes and vegetation after the accident, but there are photographs taken near the time of the accident which show the visual obstructions.

The County contends Gurican's experts do not assist him. It notes that Wenz said he looked down the road, was able to see no lights and no oncoming traffic and therefore he decided to cut the corner. It claims the factors mentioned by Gurican's experts are irrelevant. We disagree.

The County focuses on portions of Wenz's deposition, where he, for example, was asked, "Have you ever . . . blamed the bushes on the side of the road in any way for this accident?" Wenz said, "No." But Wenz also said there were "blind spots" which prevented him from seeing lights of oncoming traffic. By blind spots he meant "places that you're not able to see as you turn." (Italics added.) That is consistent with the facts stated by Gurican's experts. Wenz also said that had he seen lights or an oncoming vehicle he would not have crossed the center line. These facts raise reasonable inferences supporting Gurican's position on negligence and causation. The conflicts in Wenz's testimony present triable issues of fact. The County treats one portion of Wenz's testimony as the equivalent of an admission by Gurican. But Wenz is a codefendant with the County. His statements do not bind Gurican or prevent him from relying on other evidence to show a different version of events.

Moreover, in his declaration Wenz said on the night of the accident, and for two years prior to it, "the sharp left-hand turn . . . enabled" him "to consistently travel across the two solid yellow lines." He noted that when asked if he was "physically compelled" to go to the wrong lane he said, "It's the curve." If believed by the trier of fact, this shows the curve was a factor in the collision.

The County contends it is totally insulated from liability even if it created a dangerous condition because of the conduct of Gurican and Wenz. We disagree. The County claims Gurican was negligent by driving without a proper head light and Wenz was negligent by driving over the center line.

But where, as here, there is evidence of a dangerous condition which poses "a substantial risk of injury to the ordinary foreseeable user exercising due care, the fact the particular plaintiff may not have used due care is relevant only to his comparative fault." (Huffman v. City ofPoway (2000) 84 Cal.App.4th 975, 992.) "[I]f the third party's negligence . . . is foreseeable, such third party conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property, viz., the lack of a . . . barrier . . . ." (Swaner v. City ofSanta Monica, supra, 150 Cal.App.3d at p. 804.)

The County claims that this case is similar to City of San Diego v. SuperiorCourt (Hanson), supra, 137 Cal.App.4th 21. We disagree. There plaintiffs were injured in a traffic collision with illegal street racers near a poorly lit intersection. The Court of Appeal held that the plaintiffs did not meet their burden to show that the poor lighting was a dangerous condition or causally connected to the illegal actions of the street racers. The court stated, "We cannot conclude the roadway was inherently defective at the time of the accident . . . .' It was undisputed the road is straight and level, has few intersections and no sight lineobstructions." (Id., at pp. 31-32, italics added.) By contrast here there is evidence that there was a dangerous road condition, the intersection is curved,

negligently designed, banked with sight line obstructions and these factors are causally connected to this accident.

The County claims that summary judgment is properly granted on another ground, that Gurican did not prove that the County had notice of the dangerous condition. But the County's renewed motion for summary judgment was based on the ground that there was no proof of causation. That is a different issue. The issue of notice should be addressed at trial. Moreover, a reasonable inference from the evidence presented by Gurican's experts is that the County knew or should have known about the dangerous nature of the curve and the propensity for drivers to cut the corner. Flynn said the "phenomenon" of cutting the corner is a well-recognized concept in traffic engineering. He acknowledged that sometimes engineers are required to change lane configurations to address that problem. That is an issue over which reasonable minds may differ and should be resolved at trial.

Because there are triable issues of fact the court erred by granting summary judgment.

The judgment is reversed. Costs on appeal awarded to appellant.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Roger Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

Cumberland, Coates & Duenow and Greg A. Coates; James R. Murphy, Jr. and Tana L. Coates for Plaintiff and Appellant.

Hall, Hieatt & Connely, Clayton U. Hall, Mark B. Connely and Molly E. Thurmond for Defendant and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.