Opinion
E051221 Super.Ct.No. RIC495559
12-02-2011
CITY OF MURRIETTA, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; MICHELLE HOOKS et al., Real Parties in Interest.
Graves & King, Dennis J. Mahoney, Harvey W. Wimer III; Wheatley Bingham & Baker, Roger P. Bingham and William G. Wheatley, Jr., for Petitioner. No appearance for respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. John D. Malloy, Judge. Petition granted.
Graves & King, Dennis J. Mahoney, Harvey W. Wimer III; Wheatley Bingham & Baker, Roger P. Bingham and William G. Wheatley, Jr., for Petitioner.
No appearance for respondent.
Callahan, Thompson, Sherman & Caudill, Lee A. Sherman and Peter M. Callahan for Real Parties in Interest Michelle Hooks and Anthony Hooks.
Horvitz & Levy, H. Thomas Watson, Katherine Perkins Ross; Gates, O'Doherty, Gonter & Guy, Peter J. Gates; Cullins & Grandy and Douglas D. Cullins for Real Parties in Interest Joan Marie Forcier and LCG Inland, Inc.
The underlying action is a personal injury case arising from a traffic accident that occurred at the intersection of Kalmia and Jefferson streets in the City of Murrieta (the City). The City moved for summary judgment on the ground that a dangerous condition did not exist at the intersection. The trial court denied the motion, and the City filed this petition for writ relief.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michelle Hooks (Hooks) was driving westbound on Kalmia and entered the intersection on a green light. She was broadsided by a car driven by Joan Forcier (Forcier), who ran a red light while traveling northbound on Jefferson.
Hooks has sued the City for dangerous condition of public property. She alleges that City permitted trees and shrubs to grow on the southeast corner of the intersection which obstructed the view of westbound motorists on Kalmia (Hooks) and northbound motorists on Jefferson (Forcier). She also sues all defendants for negligent infliction of emotional distress; her husband sues for loss of consortium.
City moved for summary judgment on the ground that no dangerous condition existed. It relies principally on the undisputed fact that Forcier ran a red light, asserting that Hooks's failure to observe Forcier's vehicle is irrelevant because the obstruction of her vision did not contribute to Forcier running the light. In addition, City contends that the absence of similar accidents at the intersection proves the lack of a dangerous condition. Finally, it argues it had no notice of any dangerous condition.
Hooks pointed out in opposition that City employees believed the intersection was dangerous because of the obscured sight lines. The City requires the setback and trimming of bushes and trees to 24 inches at intersections. After the accident, the bushes were trimmed with visibility increasing. Hooks submits the declaration of an expert, Harry Krueper, opining that the condition was dangerous.
Krueper noted that the State Design Manual, which was adopted by the City, indicates that "wherever possible" sight line distances at signalized intersections should be the same as unsignalized intersections, which in this case would be 440 feet. If there had been such sight lines at this intersection, Hooks would have been able to see Forcier's car in time to stop.
The trial court denied summary judgment. It noted that the cases in this area are contradictory, but concluded that Forcier's running the red light was foreseeable; therefore, there was a dangerous condition because Hooks could not see her coming. It relied on Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789.
DISCUSSION
For purposes of an action against a public entity under Government Code section 835, a "dangerous condition," as defined in section 830, is "a condition of property that creates a substantial . . . risk of injury when such property or adjacent property is used with due care" in a reasonably foreseeable manner. (§ 830, subd. (a).)
All further statutory references are to the Government Code unless otherwise indicated.
"The existence of a dangerous condition is ordinarily a question of fact; however, it can be decided as a matter of law if reasonable minds can come to only one conclusion concerning the issue." (City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 28; see also § 830.2.) With respect to public streets, courts have observed "any property can be dangerous if used in a sufficiently improper manner. For this reason, a public entity is only required to provide roads that are safe for reasonably foreseeable careful use. [Citation.] 'If [] 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)." ' " (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 (Chowdhury).)
Obstructions to drivers' vision are a well-established "dangerous condition." Typical is an obstruction that leads one driver or the other into a risky situation: obstructed stop sign, driver sails into intersection and is struck by another vehicle (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739) or which compels a driver to enter an intersection without being able to see cross traffic. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830 (Carson))
On the other hand, public property (such as an intersection) does not become "dangerous" if the injury occurs solely due to the negligence or law violation of a third party. (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177.)
Our analysis must begin by noting certain facts that are essentially undisputed. Forcier did enter the intersection against a red light. Although Forcier filed a response to the petition asserting that this fact was never proven, Hooks alleged this fact in her pleading and neither she nor Forcier disputed this fact in the summary judgment motion. Certainly, Forcier has never asserted she did not.
Forcier and Hooks have since reached a settlement so that Forcier is not participating further in these proceedings.
We must also note that the presence of the trees and bushes did obscure the sight lines of drivers to some extent. However, it was a controlled intersection. It is undisputed that the lights were working properly and were not obscured. "A blind intersection may be dangerous; however, the dangerous nature of such an intersection may be obviated by the placement of a stop sign on one of the streets requiring travelers to stop and not enter the intersection until it is safe." (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 6-7.)
Hooks argued that a stop sign might have negated a dangerous condition because she would have slowed before entering the intersection, but a traffic light did not. This distinction is not persuasive, and certainly not supported by Mittenhuber. Because the City did install traffic control devices, we reject the suggestion raised by Hooks's argument that the City can be liable because it did not install suitable devices. Public entities enjoy certain limited immunities regarding installation of traffic control devices.An ingenious counsel would almost invariably argue that a better, or at least more suitable device, would have prevented any particular accident in question. Adoption of Hooks's reasoning would undermine these immunities by leading to protracted litigation over the "best" traffic control device; something that the statutes are clearly designed to avoid.
"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." (§ 830.4.)
"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." (§ 830.8.)
We recognize that Bakity v. County of Riverside (1970) 12 Cal.App.3d 24 does support a proposition that a dangerous condition may still be found as a contributing cause even when a third party driver negligently runs a stop sign. In Bakity the defendant driver's failure to stop at stop sign is not "superseding cause" where (1) stop sign was in a "surprise" location and (2) a long row of trees prevented either driver from seeing the other. Bakity noted that the negligence of a third person does not as a matter of law exonerate the public entity. (Id. at p. 32.)
In Carson, supra, 36 Cal.3d 830, overgrown vegetation compelled the plaintiff to creep out into the intersection past the limit line to see if any cross traffic was coming and, thus, in a sense forced her to enter a zone of danger with uncontrolled cross traffic.
In contrast here, the traffic signals were not in a surprise location and there was no evidence that they were obscured. Hooks has never stated that she was looking in that direction. Even assuming clear sight lines, it is mere speculation that Hooks would have noticed Forcier's vehicle or, having noticed it, she could have known that Forcier would have proceeded into the intersection against a red light. It is also rank speculation to believe that Forcier, who did not even notice she was entering the intersection against a red light, might have seen Hooks's vehicle at some point in time to take evasive action.
The trial court concluded that it was reasonably foreseeable that a driver might not stop at a red signal. A logical extension of the trial court's reasoning would result in public entities becoming the insurers of motorists using public streets, but the law is quite to the contrary. (Mittenhuber v. City of Redondo Beach, supra, 142 Cal.App.3d at p. 6.) Having installed four-way traffic lights at this intersection, the City was entitled to assume that drivers will obey the driving laws. (Chowdhury, supra, 38 Cal.App.4th at p. 119.)
Petitioner argues that there must be a causal connection between the dangerous condition and the third party's conduct—not merely the dangerous condition and the injury. In other words, petitioner argues that in determining whether a dangerous condition exists it must be assumed all persons were using due care. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1134; City of San Diego v. Superior Court, supra, 137 Cal.App.4th at p. 30.) In the latter case, the plaintiffs' decedents were killed when their car was struck trying to make a left turn in front of automobiles engaged in an illegal street race. The appellate court held that the trial court should grant the city's motion for summary judgment because there was no dangerous condition. Plaintiffs had argued that the presence of lights would have helped their driver see the approaching street racers. However, the appellate court questioned whether more lighting or, how much lighting, would have protected motorists from street racers. Moreover, even if it concluded a defective physical condition existed for failure to install lighting, "there is no evidence the racers were influenced by the absence of street lights. [¶] We conclude there was no physical defect in the roadway and in any event there is no evidence connecting the absence of lighting to the third party conduct." (City of San Diego, at p. 31.) We believe that these principles are appropriately applied to the present case where there is no showing that Forcier entering the intersection against the red light was connected to impaired sight lines.
Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, the case relied upon by the trial court, does not compel a different result. The court there found the plaintiffs, who were injured when run over on a public beach at night, had successfully alleged a nexus between the condition of the public beach property (where illegal auto racing was known to take place) and the third party (racers') activity, since access to the beach was allowed through an unfenced public area. The court decided plaintiffs had successfully alleged the foreseeability of the negligent third party conduct and concluded such foreseeable third party negligence may make public property dangerous when combined with a particular physical feature of the property—in that case, the absence of barriers. In Swaner, there was a link between the third party's conduct (driving onto the beach) and the alleged dangerous condition (absence of barriers).
" 'If the risk of injury from third parties is in no way increased or intensified by any condition of the public property . . . courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property. In other words, there is no liability for injuries caused solely by acts of third parties. [Citations.] Such liability can arise only when third party conduct is coupled with a defective condition of property.' " (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1137.)
For the reasons stated, we must conclude that the City cannot be held liable because no dangerous condition of its property led to Hook's injuries. In light of this conclusion, we find it unnecessary to reach the issue of whether the City established that no similar accidents had taken place at this location.
In addition, it follows from our conclusion that no dangerous condition existed that Hooks cannot recover on any theory of liability against City, and certainly cannot maintain a separate cause of action for negligent infliction of emotional distress as alleged in the fifth case of action. We agree that Hooks has failed to allege a basis to recover on a theory of "bystander" liability under Dillon v. Legg (1968) 68 Cal.2d 728.
DISPOSITION
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to vacate its order denying the City's motion for summary judgment, and to enter a new order granting the motion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Costs, if any, are awarded to the prevailing party.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
I concur:
RICHLI
J.
King, J., Dissenting.
In granting the petition, the majority wholly fails to address the respective parties' burden of production upon a motion for summary judgment. I believe it misapplies the substantive law in regards to a cause of action for a dangerous condition of public property. Further, it ignores the evidence submitted on the present motion.
Real party in interest, Michelle Hooks (Hooks), sued petitioner City of Murrietta (the City) and other parties for damages arising from an automobile collision with a third party. The City moved for summary judgment or, in the alternative, summary adjudication of the causes of action asserted against it. The trial court denied the motion in its entirety. The City now petitions this court for a writ of mandate directing the superior court to grant the motion.
I believe the trial court properly denied the City's motion for summary adjudication as it relates to Hooks's third cause of action for a dangerous condition of public property.
As to Hooks's fifth cause of action for negligent infliction of emotional distress, the motion for summary adjudication should have been granted. Hooks is a "direct victim" of the City's alleged wrongful conduct, not a "bystander." As such, she may not assert a cause of action for negligent infliction of emotional distress. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.)
I. FACTS
Hooks was involved in an intersection collision with real party in interest, Joan Forcier (Forcier). Immediately prior to the collision, Hooks was driving westbound on Kalmia Street and Forcier was traveling northbound on Jefferson Avenue. The record strongly suggests that Hooks entered the intersection on a green light and Forcier entered the intersection against a red light.
Forcier testified that at the time of the accident she was looking for a job site. She had been traveling on Jefferson Avenue for several miles and, as she approached the intersection, was scanning the area. She was driving below the speed limit and does not know if the light was green, yellow, or red when she entered the intersection. Prior to impact, she recalls seeing a flash of white out of her peripheral vision. Witness Arthur Durbin, who was stopped at the intersection, observed the Forcier vehicle as it approached the intersection. He testified that what attracted his attention to Forcier's truck was that he sensed it was not going to stop before entering the intersection. As a result of the collision, Hooks suffered injuries.
Hooks instituted the present action against Forcier, Forcier's employer, and the City. As to the City, Hooks alleges that a dangerous condition of public property was a contributing cause of her injuries. Specifically, she contends the City permitted trees and shrubs to grow on the southeast corner of the intersection, thereby obstructing motorists' views of each other as they approached the intersection.
The City moved for summary judgment on two basic grounds. It contends the alleged defect in the property was not a proximate cause of the accident because it did not "cause or facilitate Forcier's running of the red light." It further argues that because the intersection was signalized, the alleged obstruction of view caused by the trees and shrubs was of no consequence.
Hooks countered the motion with various expert declarations and portions of relevant deposition testimony. The essence of the evidence was that the City follows the California Highway Design Manual in the maintenance and design of its roadways. Under the guidelines of the Design Manual, 440 feet of corner sight distance "wherever possible" should be provided at signalized intersections. At the subject intersection it was possible to provide 298 feet of corner sight distance. Because of the foliage on the corner, there was less than 227 feet of corner sight distance. Hooks further relied upon provisions of the Murrieta Municipal Code dealing with safe sight lines at intersections. Under this Code, the maximum allowable height of foliage within roadway setbacks is two feet. At the time of the accident, the foliage we are concerned with ranged from three and one-half to four and one-half feet in height. Lastly, Hooks submitted evidence that if there had been appropriate sight lines, she could have seen the Forcier vehicle in time to avoid the collision, and that the failure to provide appropriate sight lines was a contributing cause of Hooks' injuries.
II. ANALYSIS
A. Summary Judgment
"'The purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute.' [Citation.]" (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172.) A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The moving party bears the initial burden of production to make a prima facie showing that there is no triable issue of material fact. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Id. at p. 850.)
"In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted . . . . [Citations.] The court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]" (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)
Summary judgment is a "drastic remedy." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17.) As stated in Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289 and 290: "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied." (Italics added.)
On appeal, "our review is de novo, and we independently review the record before the trial court." (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) B. Overview of Law on Dangerous Condition of Public Property
A governmental entity is liable for an injury caused by its property if at the time of the injury: (1) the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition. (Gov. Code, § 835.)
All further statutory references are to the Government Code unless otherwise indicated.
For the property to be considered in a "dangerous condition," it must create "a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such 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 "property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury." (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 830, p. 299; Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)
'"Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used. [Citations.]' [Citation.]" (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)
Although the City touches upon each of the elements of a cause of action arising under section 835, its primary argument is that there is no triable issue of fact as it relates to causation. Specifically, the City contends there can be no liability because the alleged dangerous condition did not cause or facilitate Forcier's running of the red light.
As discussed hereafter, both the City's and the majority's view of causation is simply not the law, and triable issues of fact do exist as to causation. Furthermore, the evidence demonstrates that triable issues are present as to each of the remaining elements. C. On Summary Judgment the City's Separate Statement Must Set Forth the Issues That Dispose of the Case
As explained in Teselle: "The purpose [of summary judgment] is carried out in [Code of Civil Procedure] section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed . . . [together with] a reference to the supporting evidence.' 'The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action' [citation], hence the moving party's separate statement must address the material facts set forth in the complaint." (Teselle v. McLoughlin, supra, 173 Cal.App.4th at p. 168, italics added.) If the statement of undisputed facts (with supporting evidence), does not set to rest a challenged element of the plaintiff's cause of action, then the defendant has failed to meet its initial burden of production as to that element. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851.) The logic behind such a rule is clear. It is the separate statement that "afford[s] due process to opposing parties . . . ." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) "Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail." (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) D. The City Failed to Meet Its Initial Burden of Production as to the Element of Causation
Both at the trial level and in its petition for a writ of mandate, the City has framed its central issue of "causation" based on a misreading and misapplication of two cases, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 (Zelig)and City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21 (City of San Diego).
In its separate statement of undisputed facts, the City framed Hooks's basic contention in the following fashion: "The basis for [Hooks's] action against the City is [her] allegation that the intersection was dangerous because foliage on private property on the southeast corner of the intersection prevented [Hooks] from seeing Forcier 'heading toward the intersection against a red traffic signal at a high rate of speed' as [Hooks] approached the intersection on a green traffic signal."
In addressing this contention as it relates to causation, the City submitted undisputed material fact No. 15, which stated: "Nothing about the foliage (or any other aspect of the intersection or adjacent private property) caused or otherwise contributed to Forcier running the red light, and [Hooks does] not contend otherwise." (Italics added.) While such undisputed material fact may be true, it does not, for purposes of summary judgment, lay the issue of causation to rest; and, as such, the City failed in its initial burden of production.
In its present petition, the City reasserts the same position by arguing: "The undisputed and dispositive fact in this case is that there was nothing about the alleged dangerous condition which caused Forcier to enter the intersection against an unobstructed red light. Therefore, based on the rule announced in Zelig, and followed by this Court in City of San Diego, [the trial court] should have granted [the City's] Motion for Summary Judgment." It further asserts: "Writ review in this case involves pure questions of law: Namely, application of the Zelig/City of San Diego causation rule to undisputed facts . . . ." And, under the heading, "Basis for Relief," the City avers: "The Trial Court erroneously denied the City's Motion for Summary Judgment/Adjudication because it made an error of law. The Trial Court ignored this Court's holding in City of San Diego, supra, and the Supreme Court's holding in Zelig, supra. These cases establish that when a claim of dangerous condition of public property is based on an injury caused by third-party negligence, the alleged dangerous condition must have caused or at least facilitated the third-party conduct." Because the City misapprehends the law as it relates to causation, it failed to carry its burden of production on this element. The majority equally misapprehends the law in stating: "[T]here is no showing that Forcier entering the intersection against the red light was connected to impaired sight lines." (Maj. opn., ante, at p. 8.)
Nothing in section 835 or its construing case law states that when dealing with third party negligence the alleged dangerous condition must cause or facilitate the third party conduct. Section 835 merely states that the plaintiff must show "that the injury was proximately caused by the dangerous condition . . . ." The defendant's argument that the dangerous condition must facilitate or cause the third party negligence is simply not the law when dealing with causation and the interface between third party negligence and an alleged dangerous condition of public property. For example, in Harland v. State of California (1977) 75 Cal.App.3d 475, a motorist struck a bridge guard rail and thereafter crossed the center median, colliding with a vehicle proceeding in the opposite direction. The state contended there was no substantial evidence to support the conclusion that the dangerous condition of the bridge was a proximate cause of the injury. In addressing this argument, the court stated: "[T]he fact that a third person may negligently have used the highway would not necessarily exonerate the state. [Citations.] The state may be held liable if its negligence in maintaining dangerous property and the negligence of another party concur as proximate causes of the injury. [Citations.] This was a question of fact for the jury." (Id. at p. 485.)
More recently, in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, the court, in addressing an argument identical to the one submitted by the City herein, stated: "[T]he city asserted plaintiffs could not establish the requisite causal connection because '[t]he center divider did not cause [the third party] to swerve or move to the left.' [The] argument, however, misapprehends the nature of the required causal connection. Under the governing statute, the pertinent question is not whether the divider caused [the third party] to swerve or move to the left; rather, the pertinent question is whether plaintiffs' 'injury was proximately caused by the dangerous condition.' (§ 835.)" (Id. at p. 1348.)
Similarly, in Baldwin v. State of California (1972) 6 Cal.3d 424, the plaintiff stopped to make a left-hand turn and was negligently struck from the rear by another driver. While not the focus of the opinion, there was nothing about the absence of a left turn lane (the alleged dangerous condition) which caused or facilitated the third party to negligently rear end plaintiff's vehicle. And in Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707 (Ducey),the absence of a center dividing barrier did not cause or facilitate the third party driver to negligently cross the center median and strike the plaintiff's vehicle. Without belaboring the point, the case books are replete with dangerous condition of public property cases wherein the dangerous condition did not cause or facilitate the third party's negligence. (See, e.g., Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th 139 [the location of the bus stop did not cause or facilitate the third party to negligently rear end a vehicle which then hit the pedestrian plaintiff]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 [Fourth Dist., Div. Two] [the lack of sufficient visibility at the intersection did not cause or facilitate the negligent third party to drive at an excessive rate of speed as he approached the intersection].)
As the cases make clear, the issue is not, as the City argues and the majority agrees, that the dangerous condition must cause the third party to be negligent; rather, the issue is whether the dangerous condition was a concurring cause with the third party negligence in bringing about the plaintiff's injury.
Contrary to the City's argument, neither Zelig nor City of San Diego supports its position. In Zelig, supra, 27 Cal.4th 1112, the minor plaintiffs' mother was shot to death by her former husband inside a Los Angeles courthouse. One of plaintiffs' theories of recovery was that the failure to screen individuals coming into the public courthouse for weapons constituted a dangerous condition of public property. The court's entire discussion on whether there was a dangerous condition of public property dealt not with the negligent conduct of third parties, but rather with criminal conduct and its interrelationship with conditions of the property. (Id. at pp. 1133-1140.) The cases discussed by the court dealt almost exclusively with forseeable criminal attacks in unlit parking lots, rest stops, and college campuses. As stated: "Plaintiffs' decedent was killed by the criminal act of a third party, and we have pointed out that 'third party conduct by itself, unrelated to the condition of the property, does not constitute a "dangerous condition" for which a public entity may be held liable.' [Citation.] [¶] . . . [H]owever, . . . a public entity may be liable if it 'maintained the property in such a way so as to increase the risk of criminal activity' or in such a way as to 'create[] a reasonably forseeable risk of . . . criminal conduct.' [Citation.]" (Id. at pp. 1134-1135, italics added.) In summarizing its discussion of the relationship between criminal activity and a condition of public property, the court stated: "'If the risk of injury from third parties is in no way increased or intensified by any condition of the public property . . . courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property. In other words, there is no liability for injuries caused solely by acts of third parties. [Citations.] Such liability can arise only when third party conduct is coupled with a defective condition of property.' [Citation.]" (Id. at p. 1137.)
As is evident under the facts and discussion in Zelig, a condition of property may be deemed dangerous only when it increases or intensifies the risk of injury to plaintiff; under the facts of Zelig, that meant that it had to increase the risk of criminal conduct. The Zelig court found there was simply no condition of property that increased the risk of third party criminal conduct. As indicated: "In the present case, the risk of injury was not increased or intensified by the condition of the property . . . . Indeed, the risk of injury to [the decedent] at the hands of her ex-husband was at least as great outside the courthouse. . . . Further, in the context of applying Government Code section 835, we do not believe that screening members of the public for weapons is comparable to trimming trees or providing brighter lighting, because the screening is a police function that has little or nothing to do with the physical condition of the property. . . . We conclude that the allegations of the complaint, even if proved, fail to demonstrate that the injury was 'caused by a dangerous condition of [the] property,' as required by Government Code section 835." (Zelig, supra, 27 Cal.4th at p. 1137.)
Likewise, in City of San Diego, supra, 137 Cal.App.4th 21, an illegal street race resulted in the death of two nonrace participants and serious injury to another. The accident occurred during the nighttime. While the plaintiffs were making a left-hand turn, their vehicle was struck by one of the racers, who was driving with his headlights turned off. Plaintiffs' basic allegation was that the city knew that street racing occurred on the relevant street and there was inadequate street lighting in the area of the accident. (Id. at p. 24.) The trial court denied the city's motion for summary judgment. (Ibid.)
In granting the city's petition for writ of mandate and directing the trial court to grant the city's summary judgment motion, the appellate court relied almost exclusively on Zelig and its analysis of the interrelationship between criminal conduct and conditions of public property. As stated by the City of San Diego court: "[W]e find instructive the Zelig court's final analysis of the facts before it. The court states: 'In the present case, the risk of injury was not increased or intensified by the condition of the property, and the necessary causal connection between the condition of the property and [the] crime was not present.' [Citations.]" (City of San Diego, supra, 137 Cal.App.4th at p. 30, italics added.)
The law as to the interrelationship between third party conduct and an alleged dangerous condition of public property is perhaps best summed up in Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th 139, wherein the court stated: "[A] physical condition of the public property that increases the risk of injury from third party conduct may be a 'dangerous condition' under the statutes." (Id. at p. 154.) Here, Hooks contends that the foliage immediately adjacent to the intersection was a dangerous physical condition of property which prevented her from seeing the Forcier vehicle as both vehicles approached the intersection. She further contends this obstruction to her line of sight increased her risk of injury from Forcier's third party conduct.
As such, the City's separate statement of undisputed facts, which states that "[n]othing about the foliage (or any other aspect of the intersection or adjacent private property) caused or otherwise contributed to Forcier running the red light, and [Hooks does] not contend otherwise," missed the mark. The question is not whether the foliage caused Forcier to run the red light; rather, the pertinent question is whether the presence of the foliage immediately adjacent to the intersection increased the risk of injury to Hooks from third party negligence. (See Lane v. City of Sacramento, supra, 183 Cal.App.4th at p. 1348.) If so, it may be deemed a concurring cause of Hooks's injury. The City failed to meet its burden of production on the issue of causation.
Lastly, and while not argued by the City, before either the lower court or here, the majority references that Hooks "never stated she was looking in [the] direction [of the Forcier vehicle.]" (Maj. opn., ante, at p. 7.) This comment, while perhaps correct, is not a basis for overturning the trial court's denial of summary judgment.
First, in its separate statement of undisputed facts, the City's basis for summary judgment on the issue of causation was that the condition of property did not cause Forcier to run the red light. In that we are concerned with the contentions raised by the separate statement, whether Hooks actually looked in the direction of the Forcier vehicle is not relevant for our present purposes. (See United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 335 [it is the separate statement that "afford[s] due process to opposing parties"]; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849-851 [if the moving party fails in its initial burden of production, the burden does not shift to the responding party to demonstrate the existence of a triable issue of material fact].) Second, the majority's comment disregards the quantum of evidence required for purposes of creating a triable issue of fact on causation. "The question of causation is one of fact; it becomes a question of law only where reasonable people do not dispute the absence of causation." (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235.) Here, it cannot be said that as a matter of law there is an absence of evidence demonstrating causation. Hooks's human factors expert, Dr. Frank A. Perez, stated the following: "The subject bushes presented a significant visual field obstruction and prevented Ms. Hooks from observing Ms. Forcier's pickup truck approach the intersection. [¶] Had the bushes been maintained at the required 24-inch height, Ms. Hooks [could] have noticed Ms. Forcier's vehicle above the bushes and [could] have been able to see the entire right side of Ms. Forcier's black pickup truck moving toward the intersection. [¶] . . . [¶] . . . [I]t is my professional opinion that Ms. Hooks [could] have taken action in a timely manner to avoid the collision if she had been able to see Ms. Forcier's vehicle and that Ms. Hooks would not have sustained the injuries she suffered in the subject collision if the bushes had not obstructed her view of Ms. Forcier's vehicle." Additional expert opinions were admitted into evidence that: (1) "A person driving a car and scanning the area as he or she approached the subject intersection westbound on Kalmia Street would not have noticed the top of Ms. Forcier's pickup truck over the bushes and would not have seen any vehicle the height of which was lower than 60 inches at that position on the roadway. The subject bushes presented a significant visual field obstruction and prevented Ms. Hooks from observing Ms. Forcier's pickup truck approach the intersection"; and (2) "the visual obstruction caused by overgrown bushes and trees impaired Michelle Hooks'[s] line of sight and were substantial factor causes of this collision and of the severe injuries that did occur." E. The City Failed to Meet Its Burden of Production That the Property Does Not Create a Substantial Risk of Injury "When Such Property is Used with Due Care"
I begin again by emphasizing that on a defense motion for summary judgment, it is the defendant that bears the initial burden of production, not the plaintiff. Furthermore, due process dictates that the "statement of undisputed material facts" must set forth the issues to which the plaintiff must respond. Here, the City's "statement of undisputed material facts" fails to address the issue of whether the condition of public property created a substantial risk of injury when such property is used with due care.
In evaluating the "used with due care" requirement, we are not concerned with the due care of the individuals involved in the accident. Rather, we are concerned with whether in the abstract the alleged dangerous condition can create a substantial risk of injury when used with due care by members of the general public.
"The qualification that the property is dangerous only when used with due care does not require the plaintiff to prove due care on the part of the third party . . . involved in the plaintiff's injury. Rather, the statute means that the condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as concurrent tortfeasor." (Murrell v. State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 267, fn. omitted.) "[I]f the condition of the property was such that it created a substantial risk of injury to a person using the property with due care, an injured plaintiff is not required to prove that the driver of the third party vehicle . . . was exercising due care at the time of the injury. That is, the third party's negligent use does not negate the existence of a dangerous condition. . . . What we must determine therefore is whether in the abstract the factual situation in the case at bench could be found by the finder of fact to have created a dangerous condition without regard to the specific conduct of [the third party driver] or the plaintiff on this particular occasion." (Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 121.)
Although the parties agree that the due care inquiry involves the use of the property in the abstract, they disagree as to whether the inquiry is limited to users in Hooks's position. In its points and authorities, the City relies on Murrell for the proposition that, in evaluating whether a substantial risk of injury is created by the condition, we must hypothetically assume that all persons involved in the accident are using due care. Hooks, relying primarily on Alexander v. State of California ex rel. Dept. of Transportation (1984) 159 Cal.App.3d 890, 899 through 902, argues that we are not concerned with "due care" as it relates to all participants in the accident, but rather only whether a hypothetical person in plaintiff's shoes is using "due care." While the issue was discussed in Ducey, supra, 25 Cal.3d at pages 718 through 720, it has never been squarely resolved by the Supreme Court.
For our purposes, resolution of this issue is not necessary. Even if the City is correct and Hooks must ultimately prove that the property constitutes a dangerous condition if all members of the public use due care, it is still the City's burden in its motion for summary judgment to demonstrate that Hooks's action is not viable as a matter of law. Thus, in order to negate this element, the City must demonstrate that the property does not create a substantial risk of injury when used with due care by all hypothetical, reasonably foreseeable actors. The City failed to do so; none of its "undisputed material facts" address the element of whether the property creates a substantial risk of injury when used with due care.
In Ducey, a negligent motorist crossed an unguarded freeway center median striking a motorist going in the opposite direction. The state argued that because cross-median accidents usually result from the negligence of the victim or a third party, the absence of a median did not create a substantial risk of injury when used with due care. (Ducey, supra, 25 Cal.3d at pp. 718-719.) The court rejected the argument: "Although it may well be that many, perhaps even most, cross-median accidents result from the negligence of one or more drivers, the evidence in the instant case was clearly sufficient for the jury to conclude that the lack of a median barrier created a substantial risk of injury even in the absence of negligent conduct." (Id. at p. 719.) Such evidence included the testimony of "numerous expert witnesses [who] identified various situations in which cross-median accidents might occur in the absence of negligence, as when accidents result, for example, from mechanical failure, sudden illness, or animals in the road." (Ibid.)
Just as motorists might cross a freeway median without acting negligently, so too one may violate a traffic control while still using general due care. (See, e.g., Mathews v State of California ex rel. Dept. of Transportation, supra, 82 Cal.App.3d 116 [driver entering intersection against red light which was stuck in the red mode]; Hammontree v. Jenner (1971) 20 Cal.App.3d 528, 530-531 [losing control of car during epileptic seizure]; Waters v. Pacific Coast Dairy, Inc. (1942) 55 Cal.App.2d 789, 792-793 [driver rendered unconscious from sharp pain in left arm and shoulder]; Ford v. Carew & English (1948) 89 Cal.App.2d 199, 203-204 [fainting spells from strained heart muscle]; Zabunoff v. Walker (1961) 192 Cal.App.2d 8, 11 [sudden sneeze prevented driver from seeing victim's car]; Tannyhill v. Pacific Motor Trans. Co. (1964) 227 Cal.App.2d 512, 520-521 [heart attack].)
Here, the City wholly failed to address the issue of "due care" and, as a result, did not meet its initial burden of production as to this element. F. A Triable Issue of Material Fact Exists as to Whether the Presence of Traffic Control Signals Obviated the Need for Line of Sight for Cross Traffic
Relying exclusively on Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1 (Mittenhuber), the City submits that the presence of signal lights at the intersection obviates any dangerous condition created as a result of the adjacent foliage. I disagree that Mittenhuber is dispositive. In Mittenhuber, a westbound bicyclist was struck in an intersection by a southbound motorist. The intersection was controlled by a stop sign for the westbound bicyclist. There were no traffic controls for the southbound motorist. On the northeast corner of the intersection there was a wall that obscured the line of sight for both parties. While not totally clear from the opinion, it appears that the bicyclist did not stop at the stop sign.
The Mittenhuber court separately discussed each of the 10 factual circumstances that plaintiff alleged made the intersection dangerous. Four of the circumstances involved a line of sight problem at the intersection. In dismissing two of them, the court relied on sections 830.4 and 830.8. (Mittenhuber, supra, 142 Cal.App.3d at pp. 5-6.) The upshot of this discussion was that the governmental entity was immune for its failure to put a stop sign at the intersection for purposes of controlling southbound traffic and had no duty to warn southbound motorists of an impending blind intersection. In its discussion of the remaining two line of sight problems, the court observed that: "[T]he present complaint . . . alleges no specific facts which would support the conclusion that motorists could not see each other until after they were committed to the intersection." (Id. at p. 12.) One example of such an allegation, the court noted, would be an allegation that a bicyclist stopped at the stop sign could not see the oncoming southbound motorist. (Ibid.)
Section 830.4 provides: "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."
Section 830.8 provides, in part: "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."
Initially, it must be noted that the Mittenhuber court does not discuss the issue of "due care" under section 830 by examining whether the intersection created a risk of injury when used with due care by the public generally; instead, it focused solely on the circumstances alleged in the complaint and the conduct of the involved participants. (But see Ducey, supra, 25 Cal.3d at p. 719 [evidence regarding due care included expert witness descriptions of accidents that "might occur in the absence of negligence"]; Murrell v. State of California ex rel. Dept. Pub. Wks., supra, 47 Cal.App.3d at p. 267 [§ 830 is concerned with due care by the public generally].) Nor does Mittenhuber discuss the law that third party conduct or comparative negligence does not negate an action under section 835. (See Mathews v. State of California ex rel. Dept. of Transportation, supra, 82 Cal.App.3d at p. 121 [intersection collision where third party ran red light].)
The above aside, in contrast to the insufficient allegations in Mittenhuber, Hooks here submitted evidence from the State of California Highway Design Manual that "[a]t signalized intersections corner sight distances given in Table 405.1A should . . . be applied wherever possible." Given approach speeds of 40 miles per hour, the corner sight distance should have been at least 440 feet. From declarations and other evidence, it was possible at this particular intersection to provide a 298-foot line of sight. As a result of the foliage, however, the sight distance for people in Hooks's position was significantly less. Declarations submitted support a finding that even if there had been an available sight distance of 227 feet, the accident could have been avoided. Furthermore, evidence submitted by Hooks indicates that the City recognized that line of sight problems at intersections could be present when adjacent foliage was of a height greater than two feet. Further, when viewing the forseeability of accidents at signalized intersections, the reason for requiring adequate corner sight distance at signalized intersections is explained in the Highway Design Manual: "'Even though traffic flows are designed to move at separate times, unanticipated vehicle conflicts can occur due to violation of signal, right turns on red, malfunction of the signal, or use of flashing red/yellow mode.'"
Clearly, the evidence submitted at the present motion for summary judgment distinguishes it from the insufficient allegations contained in the plaintiff's complaint in Mittenhuber. Such evidence reveals triable issues of material fact as to whether the presence of traffic signals obviated the need for appropriate sight lines at the subject intersection.
Obviously, a jury could reject Hooks's claim and find that no dangerous condition was present or that the condition of property was not a contributing cause of plaintiff's injury. However, based on what is presently before the court, triable issues of material fact exist. Accordingly, the motion for summary adjudication as to the third cause of action for dangerous condition of public property was properly denied.
KING
J.