Opinion
Santa Barbara County Super. Ct. No. 1129903, Denise de Bellfeuille, Judge.
Law Offices of Ian Herzog, Evan D. Marshall, Ian Herzog and Thomas F. Yuhas, Attorneys for Plaintiffs and Appellants.
Avila & Peros, LLP, Michael F. Avila and John P. Kristensen, Attorneys for Defendant and Respondent.
OPINION
COFFEE, J.
Plaintiff and appellant Dana Cummings rear-ended the vehicle of Brooke Bartholomay in the fast lane of Highway 101 at Gaviota Beach Road. Cummings, individually and in his capacity as guardian ad litem for his three minor children, sued Granite Construction Company. We affirm summary judgment in favor of Granite Construction Company because Granite had no duty to regulate traffic at the accident site and did not, as a matter of law, create a public nuisance there.
PROCEDURAL AND FACTUAL BACKGROUND
In the summer of 2002, Granite performed paving work at the interchange between State Route 1 and Highway 101 under state contract. The work involved onramp and offramp closures. Brooke Bartholomay lived near Highway 1, and normally used the northbound 101 to travel to her job at the YMCA in Santa Ynez.
Bartholomay testified that a week or two before the accident while Bartholomay was a passenger in her mother's car, a person in work clothes at the interchange told her mother that if she encountered a closure of the northbound onramp she should go south to Gaviota and turn around. The worker did not specify that she should make a "U-turn," but this is what Bartholomay assumed he meant. He has not been identified, and Bartholomay does not recall whether he wore a uniform, vest or hard hat, or whether he had any company name on his clothing. Gaviota Beach Road is about two miles south of the interchange where Granite was working.
On the day of the accident, the northbound 101 onramp was closed for Granite's work. To get to work in Santa Ynez, Bartholomay planned to travel south on 101 to Gaviota Beach Road and then make a U-turn at a break in the highway median. She had done this one or two days before the accident without any problem. Just before the accident, she slowed in the fast lane and prepared to make the U-turn.
Behind Bartholomay, Dana Cummings was driving his Volkswagen bus between 55 and 65 miles per hour with his three minor children aboard. When Cummings first saw Bartholomay's Saab it was one to five car lengths ahead of him with its brake lights on. Cummings was unable to stop.
Witness Jerry Ray Wilson testified that just before the accident he was traveling between Bartholomay and Cummings in the fast lane. The three vehicles were maintaining roughly the same speed as they approached Gaviota Beach Road. When Bartholomay's Saab slowed rapidly (to execute the U-turn) Wilson swerved out of the fast lane and around the Saab, leaving Cummings' bus directly behind the Saab. Wilson looked back in his rear view mirror and watched Cummings' vehicle strike the Saab.
It is undisputed that it was legal for Bartholomay to make a U-turn at the Gaviota Beach Road median break. It is also undisputed that she had two other options. She could have exited at Gaviota Beach Road, negotiated a U-turn in its parking area, and then made a left turn to reenter Highway 101 northbound. She also could have continued one mile further south on Highway 101 and used the Mariposa Reina overpass to reenter Highway 101. These two options would not have required a U-turn from the fast lane.
Cummings sued Bartholomay, Volskwagen, the State of California and Granite Construction on behalf of himself and his children. Bartholomay filed her own lawsuit, and the two actions were apparently consolidated. We are concerned here only with Cummings' claims against Granite. The trial court granted Granite's motion for summary judgment, and denied Cummings' motion for new trial.
DISCUSSION
We review the trial court's order granting summary judgment de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "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.) First, we identify the issues raised by the pleadings. Next we determine whether the moving party's showing has established facts which negate the opponent's claims. If the moving party does make such a showing, we then determine whether the opposition demonstrates the existence of a triable issue of material fact. (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 601-602.)
The Pleadings
Cummings asserts negligence and nuisance causes of action against Granite. In his first cause of action for negligence, Cummings contends that Granite "created a dangerous condition" at the intersection by instructing Bartholomay to turn around there, and by failing to adequately sign a detour route. Cummings alleges that Granite had a contractual duty to erect detour signs, and that it also undertook a duty of due care when it directed Bartholomay. Cummings alleges that the state's contract required Granite to "comply with and effectuate traffic detours" in compliance with the State of California Traffic Manual and the Manual of Uniformed Traffic Devices, that Chapter 5 of the State of California Traffic Manual required Granite "to erect detour signs" for the northbound onramp closure, that Granite advised Bartholomay to go south on Highway 101 and turn around at Gaviota Beach Road, and that "[i]f Granite Construction employees intended for traffic to execute a U-turn at Gaviota as part of the detour, cones, signs, lines, and a temporary extra turn lane should have been erected" there.
In his fifth cause of action for nuisance, Cummings claims that the condition Granite created on Highway 101 interfered with safe public use and travel through the intersection at Gaviota Beach Road and constituted a public nuisance within the meaning of section 3479 of the Civil Code.
The allegations of the complaint admit that the state, not Granite, designed the Gaviota Beach Road intersection. Cummings alleges that Highway 101 is "public property" and that the state "owned, designed, maintained, controlled . . . warned, advised, signed and striped U.S. 101" including the onramps and offramps, overpasses and the Gaviota Beach Road intersection.
Granite's Showing Negates Cummings' Claims
An essential element of negligence is duty. Granite established by admissible evidence that it did not owe Cummings a duty as a matter of law. The accident occurred two miles outside the construction area. The state's traffic engineer (Art Infante) and traffic engineer technician (Jack Clymer) each testified that Granite was not required by contract, plans, specifications or special provisions to maintain any control over the accident site or to do any type of traffic control at the accident location. It is undisputed that the plans and specifications for the repaving project were created by the State of California. Granite complied with the plans, standard specifications and special provisions. The plans did not call for any detour and Granite was not required to set up any detour. Plaintiff's own expert testified that Granite was not permitted to deviate from the contract, plans or specifications without consent of the State of California. Granite points out that if any Granite worker did instruct Bartholomay to turn around at Gaviota Beach Road, he did not tell her to make a U-turn.
Unlawful obstruction of a public highway is a nuisance (Civ. Code, § 3479), but Granite did not design the Gaviota Beach Road intersection. Essential to a nuisance claim is conduct of the defendant creating a risk of harm and likely to lead to invasion of a public right. (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988.) Granite presented evidence that it did not create the conditions at the Gaviota Beach Road intersection. The state designed the intersection and did not prohibit U-turns, as Cummings alleged in his third cause of action. Granite demonstrates an absence of any evidence of unlawful conduct on its part, and offers evidence that its conduct in connection with the project was specifically approved by the state. "[C]onduct that is fully authorized by statute, ordinance or administrative regulation does not subject the actor to tort liability." (Rest. 2d Torts, § 821B, com. F, p. 91; In re Firearm Cases, at 988, fn. 22.)
Granite also demonstrates that its activities did not substantially increase the risks to drivers traveling southbound on Highway 101. Officer Durham testified that traffic was flowing normally in the area of the accident and was light to moderate. Neither Wilson nor Cummings had been diverted from their intended southbound route. They had each traveled from points north of the construction area.
Cummings' Evidence Does Not Demonstrate A Triable Issue of Material Fact
To oppose the motion, Cummings relied primarily upon the declaration of his retained civil engineer, Harry J. Kreuper, Jr., P.E. The trial court sustained thirty-one written objections to Kreuper's declaration on the grounds that portions of it lacked foundation, contained hearsay, were based upon facts not in evidence and upon speculation, offered opinions he was unqualified to give, misstated testimony, and contained improper expert opinion invading the province of the jury. These rulings were within the trial court's discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) The evidentiary rulings eliminated all of Kreuper's substantive opinions.
Aside from Kreuper's declaration, Cummings also relied on testimony of various lay witnesses to show that Bartholomay's decision to make a U-turn was foreseeable and that Granite should have directed her to use an overpass rather than a U-turn. This evidence included Bartholomay's testimony that a week or two before the accident Bartholomay's mother asked the unidentified worker, "if the offramp is closed to go to our house, how will we get to our house." According to Bartholomay, the worker responded "that she and her mother should go up to Gaviota and turn around and take the northbound offramp to go over the bridge and get home." Bartholomay testified that "[h]e didn't say go south until you get to Gaviota Beach Road. He just said, Go south to Gaviota, [and] turn around."
Cummings also offered the testimony of California Highway Patrol (CHP) Officer Louis DeWitte, who was at the construction site twice in the two weeks before the accident. DeWitte testified that "virtually 100 percent of the time that I worked COZEEP (Construction Zone Enforcement Enhancement Program) even prior to the closures being made, it was understood that we would always direct traffic to the nearest over-crossing which southbound would be Santa Rosa Road in Buelton. But of course, we cannot watch the entirety of 101 since there are turn-throughs. So--but anybody that we turned north, we always directed them to Santa Rosa or to Mariposa Reina." DeWitte could not recall a particular conversation on the subject with the state's engineer or with a driver.
State traffic engineer technician Jack Clymer testified that he was at the project every working day and personally instructed people what to do in case of ramp closures. When the northbound onramp was closed he told a couple of dozen people to go southbound to the Mariposa Reina overcrossing. He testified that "[u]nder orders from the C.H.P., we were told to tell these people to use the two ramps in the north and the south direction and to not direct the public where to turn around. [¶] If the public said, 'But I know there are these median turnarounds; can I use them,' we would say, 'You may turn around where it is safe.'" Clymer testified that he told Granite's foreman, Jeff Venegas, "that's what we would do."
Granite's foreman Jeff Venegas testified that he told his crew, "If anybody stops and asks you which way we go . . . [tell] them, [y]ou have to go south and find a safe place to come back north." He told them this so that "they [would] need to find a safe area at their discretion." He testified he did not want his crew to tell drivers a specific place to turn around, because that could cause Granite some liability.
CHP Officer Schmidt testified that he and other officers had made U-turns southbound at the Gaviota Beach Road turn through. It is the southernmost tip of the CHP's Buelton area. Schmidt testified there was no southbound left turn pocket at the Gaviota Beach Road turn through. He testified that he would not cite anyone for making a U-turn there unless it was done unsafely in front of oncoming traffic in the opposite direction.
CHP Officer Durham, primary investigator of this accident, also testified that it was not illegal to make a U-turn at the location Bartholomay used. Durham offered the opinion that Bartholomay should have exited onto Gaviota Beach Road from the number two lane, and then turned around on the roadway or on the dirt turnaround area before reentering Highway 101 northbound. Durham found that Cummings was the primary factor in the collision because he was driving at an unsafe speed for conditions. Durham testified that he may also have found that Bartholomay committed an unsafe stopping violation if there were evidence that she broke sharply and that Wilson had been traveling at a safe distance behind her but was forced to swerve around her. The undisputed evidence is that Bartholomay slowed but had not come to a complete stop before the collision.
Cummings agrees that the accident did not occur within the project plan map area, but argues that the duty owed by a highway contractor is not limited to the construction site. In each of the cases cited by Cummings the accident occurred in, or immediately adjacent to, the highway contractor's project area. (Breslin v. Fredrickson (1957) 152 Cal.App.2d 780 [6 inch drop between surface repaved by contractor and adjacent shoulder]; Ray v. Silverado Contractors (2002) 98 Cal.App.4th 1120 [materials blown from bridge onto roadway below within contractor's 25 mile roadway project area]; Thirion v. Fredrickson & Watson Constr. Co. (1961) 193 Cal.App.2d 299 [loose gravel deposited by contractor in area within project zone where work had not yet commenced]; Bouse v. Madonna Construction Co. (1962) 201 Cal.App.2d 26 [tapering hazard within contractor's project area]; Hansen v. Matich Corporation (1965) 234 Cal.App.2d 129 [rough section of roadway that had been repaved by contractor].)
Cummings is not helped by Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 or Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292. Both cases involved public entity liability for dangerous conditions of adjacent property pursuant to Government Code sections 830 and 835. In both cases the properties were immediately adjacent to the public entity's property, and the entity had prior knowledge of the dangers posed by the intersection. Here, Cummings does not assert a section 835 cause of action against Granite (a private entity), and Granite did not have control of property adjacent to the accident site. Also, there is no evidence of any prior accident involving a U-turn at this accident site.
Cummings relies on two Vehicle Code sections to impose upon Granite a duty to regulate traffic, but those sections impose no duty upon a contractor unless there is authorization or direction from the state. Section 21363 of the Vehicle Code, read together with section 21350, imposes upon the state's Department of Transportation a duty to erect detour signs at the nearest points of detour from that portion of a highway, which is closed to traffic while under construction or repair. Section 21367, subdivision (a), permits a highway construction contractor "with the approval of the department" of transportation to regulate traffic during highway repair. There is no evidence of departmental approval here. There is no competent evidence that the state called upon Granite to regulate traffic at the accident site and each of the state's representatives testified it did not.
A change order did give Granite additional funds to regulate traffic, but that was specifically for public traffic "through the work zone." Granite's foreman, Venegas, declared that the change order involved the use of flaggers within the job limits for an eight day period at the request and direction of the state. The change order did not authorize or require Granite to post any detour signs or a no U-turn sign at the Gaviota Beach Road intersection. No competent evidence contradicts his statement.
The state's senior traffic engineer, Steven Michael Wyatt, testified that the contractor does have a duty, if it sees something unsafe, to bring it to the attention of the state engineers. However, there is no evidence that Granite saw anything unsafe with respect to the northbound onramp closure or resulting turnarounds.
Cummings draws our attention to the terms of the contract between the state and Granite, and the standard specifications and special provisions that are incorporated therein. In particular, he cites section 7-1.09 of the standard specifications which provides, "It is the Contractors responsibility to provide for the safety of traffic and the public during construction. [¶] . . . [¶] Whenever the Contractor's operations create a condition hazardous to traffic or to the public, the Contractor shall, at the Contractor's expense and without cost to the State, furnish, erect and maintain . . . signs and other devices and take such other protective measures that are necessary to prevent accidents or damage or injury to the public." In Gibbons v. City of San Bernardino (1951) 108 Cal.App.2d 33, the court found that a similar clause did not impose a duty upon the contractor to warn of dangers in areas where it was not performing work.
In Gibbons, the contract provided, "'The contractor shall furnish, erect, and maintain such fences, barriers, lights, and signs as are necessary to give adequate warning to the public at all times that the road or street is under construction and of any dangerous conditions to be encountered as a result thereof and he shall also erect and maintain such warning and directional signs as may be furnished by the City.'" (Gibbons v. City of San Bernardino, supra, 108 Cal.App.2d at p. 35) The Gibbons court held the clause required only "that defendant give adequate warning to the public of any dangerous condition to be encountered as a result of such construction." (Id. at p. 36.) "It does not require defendant to give warning of obstructions or dangers created by the city on a portion of the street under its control and upon which no construction had been commenced." (Ibid.) Here too, Granite did not have a duty to warn of any dangerous created by the state on a portion of 101 under state control where Granite had not performed any work.
Cummings refers to the California Department of Transportation Safety Manual, which provides in Chapter 5 at section 5-02.4 that "[a]t detours, traffic is directed onto another roadway to bypass the temporary traffic control zone. Detours should be signed clearly over their entire length so that motorists can easily determine how to return to the original roadway." Cummings also draws our attention to the state's standard specifications which provide at section 4-1.04 that "[t]he Contractor shall construct and remove detours and detour bridges for the use of public traffic as provided in the special provisions, or as shown on the plans, or as directed by the Engineer." Neither the state's contract, its special provisions, its plan nor its engineer provided for Granite to construct a detour and the cited provisions do not apply.
None of the authorities or evidence presented by Cummings can overcome the showing made by Granite that it did not, as a matter of law, owe a duty to erect detour signs, erect a no U-turn sign, or direct Bartholomay not to make a U-turn from the fast lane at Gaviota Beach Road. Granite has also established that it did not, as a matter of law, create a nuisance at the intersection of Gaviota Beach Road and Highway 101. Cummings has not presented evidence demonstrating the existence of any triable issue of material fact, and Granite is entitled to judgment as a matter of law.
DISPOSITION
The judgment in favor of Granite is affirmed. Costs are awarded to respondent.
We concur: YEGAN, Acting P.J., PERREN, J.