Velazquez v. City of Santa Paula

Filed 1/17/07  Velazquez v. City of Santa Paula CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        Appellants Eberto Velazquez and Mrs. Velazquez appeal from a judgment of dismissal with prejudice of the City of Santa Paula (the City) after an order sustaining a demurrer without leave to amend.[1]  Appellants named the City, among other defendants, after a vehicle hit appellant in a marked crosswalk in the City.  Appellants allege that the City negligently owned, maintained and operated public property on which a dangerous condition existed, and that by installing but failing to properly maintain a crosswalk warning light system, the City caused appellant's injuries.  The trial court sustained the City's demurrer to appellants' first amended complaint without leave to amend and dismissed the City with prejudice.  We reverse the judgment.

FACTS

                        Some time before February 2005, the City purchased and arranged for the installation of a warning light system in the marked crosswalk that crosses Harvard Boulevard, an east-west road, at its intersection with Fifth Street, in the City.  (It is unclear whether the crosswalk lies on the east or west side of Fifth.)  This intersection forms a T, with a short segment of Fifth ending at the south side of Harvard, which has two lanes in each direction and a center divider turning lane.  The crosswalk warning light system consists of high intensity, bidirectional lights on either side of the crosswalk in the pavement.  When the system is functioning, a pedestrian can push a button that causes the in‑ pavement lights to flash and emit highly visible yellow lights along the crosswalk.  The system is designed to alert motorists that there is a pedestrian in the crosswalk and therefore make the crosswalk safer for pedestrians.  Motorists driving on Harvard relied on the warning light system to alert them that pedestrians were in the crosswalk at Harvard and Fifth.  With the exception of the crosswalk warning light system, there are no traffic control devices at the intersection of Harvard and Fifth.  The City knew of prior pedestrian accidents and near misses at this intersection.

                        Appellants' complaint alleges that due to the City's improper maintenance and inspection, the crosswalk warning light system at Harvard and Fifth malfunctioned and stopped working some time prior to February 18, 2005.  On February 18, in the evening, when it was dark, appellant was struck by defendant Lemons as he crossed Harvard at Fifth, when the warning light system was not working.  Lemons did not see appellant until immediately prior to impact.

                        The City demurred to appellants' complaint, claiming that municipal governments have no legal duty to light their streets.  During the hearing on the demurrer, the court below expressed confusion about whether the case involved " a defective pedestrian walk/don't walk light," or " defective overhead light," or a " defective signal," and stated the " complaint [did not explain].  .  . what [was] wrong with [the] intersection."   Appellants' attorney explained that the malfunctioning crosswalk warning light system created a dangerous condition which was " an entirely different animal than .  .  . a regular streetlight."   On two occasions during the hearing on the demurrer, the court indicated that appellants " might get to amend" the complaint.  The court nonetheless issued its ruling without providing appellants an opportunity to amend the complaint.  The court ruled that " the crosswalk lights were not a traffic control device, that they provide illumination only," and the City had no " legal duty to provide illumination."   Nonetheless, the court sustained the City's demurrer and dismissed the complaint against the City with prejudice.

DISCUSSION

                        On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, we accept the factual allegations of the complaint as true and review the pleading de novo to determine whether the facts as pleaded state a cause of action.  (Medina v. Hillshore Partners (1995) 40 Cal.App.4th 477, 481; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)  " If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.  [Citation.]  The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended."   (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  The plaintiff " can make this showing to the appellate court whether or not he made it to the trial court."   (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 748; Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 867.)

                        Liability against a public entity may only be established as provided by statute.  (Gov. Code, §  815; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809; Williams v. Horvath (1976) 16 Cal.3d 834, 838; Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1471-1472.)[2]  Section 835 of the Tort Claims Act (§§  830-840.6) states, in pertinent part:  " 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 .  .  . [¶]  .  .  .  [¶]  (b)  The public entity had actual or constructive notice of the dangerous condition  .  .  .  ."

                        Section 830, subdivision (a) defines " dangerous condition" to mean " 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, subdivision (b) defines " protect against" to include " repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition."

                        Appellants allege that the City negligently installed and maintained a crosswalk warning light system that constituted a dangerous condition of public property under section 835 and caused appellant's injuries.  They further allege that the crosswalk warning light system had been in a state of disrepair before appellant suffered injuries and that the City had actual and constructive notice of this dangerous condition.

                        The City argues that the trial court correctly sustained the demurrer because municipalities have no duty to illuminate streets or otherwise protect pedestrians on a straight, level road.  Appellants argue that the trial court abused its discretion in sustaining the City's demurrer without granting appellants leave to amend their complaint.  We conclude that if appellants are permitted to amend their complaint, it would state a cause of action for dangerous condition of public property.  " '[W]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.'"   (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p.  810; Constantinescu v. Conejo Valley Unified School Dist., supra, 16 Cal.App.4th at p.  1472.)

                        " 'Public property is in a dangerous or defective condition when it " involves an unreasonable risk of injury to the public." '"   (Feingold v. Los Angeles County (1967) 254 Cal.App.2d 622, 625.)  Measured by this definition, appellants' complaint, as they propose to amend it, can state a dangerous condition of public property cause of action.  They would allege that motorists came to rely on the crosswalk warning light system to alert them when pedestrians crossed Harvard at Fifth, and that the City had actual or constructive notice that the crosswalk warning light system was not functioning.  They would further allege that when a driver approaches Fifth on Harvard (as defendant Lemons did), while a pedestrian is in the crosswalk after dark (as appellant was), and the crosswalk warning light system is not functioning, the driver has no reason to expect that a pedestrian is in the crosswalk until it is too late to stop the vehicle.  Because of the alleged inability of the driver to see the pedestrian until after such driver is committed to the intersection, the malfunctioning crosswalk warning light system could constitute a dangerous condition of public property which proximately contributed to appellant's injury.  (See ibid.)

                        Relying on Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, and other cases, the City argues that appellants' " theory is that governments must provide more light," and that the City has no liability because " [m]unicipalities do not owe a duty to the .  .  . public to light streets or intersections in the absence of some independently dangerous physical condition of the property."   We disagree.  In Plattner, the plaintiff argued that " by providing a crosswalk and thereby encouraging pedestrians to cross the street at that location the city invited the public to rely on the streetlight and thus created a duty to maintain the light."   (Id. at p.  1445.)  In rejecting that argument, the court noted that " unlike traffic lights and stop signs which are the only means by which traffic is controlled, streetlights are not the only or even the primary means by which streets are illuminated for vehicular traffic."   (Id. at p. 1446.)  In our view, the crosswalk warning light system functions more like a traffic control device than a lighting system.  For example, the primary function of a traffic signal is to alert drivers which direction of traffic has the right of way; the light cast by the signal is secondary.  Similarly, the primary function of the crosswalk warning light system at Harvard and Fifth is to alert drivers that pedestrians are in the crosswalk.

                        The facts appellants alleged and propose to allege resemble the cases where municipalities have been held liable for a failure to maintain traffic signs, lights or markings which the municipalities have decided to provide.  For example, in Irvin v. Padelford (1954) 127 Cal.App.2d 135, the court affirmed a judgment against a city where its failure to maintain a stop sign created a dangerous condition of public property.  In Irvin, the city had removed a stop sign for repair purposes without replacing it, and an accident occurred before the city replaced the sign.  (Id. at pp. 137-138, 141.)  The Irwin court cited several cases, including a Washington case involving a " wigwag" warning system which is particularly relevant to this case:  " '" Even though the City might have been under no duty to install a wigwag system, having installed it and taught the public to rely upon it, the failure to operate it in a particular instance would create a trap and constitute negligence." '"   (Id. at pp. 141-142.)  Similarly, here, if the City " taught" motorists to rely upon the crosswalk warning light system to alert them when a pedestrian is in the crosswalk, it could create an unreasonable risk of injury to pedestrians using the crosswalk, particularly at night, if the City failed to maintain the system or alert motorists that the system was not functioning.

            It remains to be seen whether the facts and circumstances appellants alleged and propose to allege created a dangerous condition of public property.  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p.  810; Constantinescu v. Conejo Valley Unified School Dist., supra, 16 Cal.App.4th at p.  1472.)  The trial court abused its discretion when it sustained the City's demurrer without leave to amend and dismissed the complaint against the City with prejudice.  (Hendy v. Losse, supra, 54 Cal.3d at p.  742.)

                        The judgment is reversed insofar as it dismisses the dangerous condition of public property cause of action against the City.  We remand to the trial court with instructions to allow appellants to amend their complaint and to reinstate that cause of action.  Costs on appeal are awarded to appellants.

                        NOT TO BE PUBLISHED.

                                                                        COFFEE, J.

We concur:

                        GILBERT, P.J.

                        PERREN, J.

Jeanne A. Flaherty, Temporary Judge*

Steven E. Hintz, Judge

Superior Court County of Ventura

______________________________

                        Schurmer & Drane, Earl S. Schurmer for Plaintiffs and Appellants.

                        Law Offices of Alan E. Wisotsky, Jeffrey Held for Defendant and Respondent.

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            [1] Eberto Velazquez seeks damages for loss of wages and medical expenses, and Mrs. Velazquez seeks injuries for loss of consortium.  In this discussion, we refer to " appellant" (to indicate Eberto Velazquez) or " appellants" (to indicate Eberto and Mrs. Velazquez), as appropriate.  The record does not include Mrs. Velazquez's first name.

            [2] All statutory references are to the Government Code.

            *(Pursuant to Cal. Const., art. VI, §  21.)