Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV150687
McAdams, J.
Plaintiff Eric Lindsley sued the Union Pacific Railroad Company (the Railroad), the Santa Cruz Seaside Company (Seaside), and the City of Santa Cruz (the City; hereafter jointly “Defendants”) for personal injuries he sustained while bicycling across the San Lorenzo Trestle Bridge (Bridge) in Santa Cruz. Lindsley alleged a single cause of action against Defendants for premises liability based upon a dangerous condition of the Bridge. The trial court granted Defendants summary judgment.
On appeal, Lindsley argues that the court erred in granting summary judgment to Seaside because Seaside owns the property where his accident occurred or exercised control over the property. He also contends there are triable issues whether the accident occurred on Seaside’s property and whether Seaside maintained or controlled the Bridge and was therefore liable for his injuries. Lindsley asserts that the court erred in granting summary judgment to the City because there were triable issues of fact whether the walkway on the Bridge was the proximate cause of his accident and whether the walkway was a dangerous condition under Government Code section 830. Finally, Lindsley argues that the court erred in granting summary judgment to the Railroad because he produced substantial evidence of reasonable safety measures that should have been taken by the Railroad prior to his accident. We find no error and affirm the summary judgment for all three defendants.
All further statutory references are to the Government Code, unless otherwise stated.
Facts
I. Description of Trestle Bridge
The Bridge was built around 1904. It spans the San Lorenzo River at its terminus into Monterey Bay. It connects the Seabright neighborhood in Santa Cruz, which is located east of the Bridge and the river, to the Santa Cruz Beach Boardwalk area, which lies west of the Bridge. Seaside owns the Santa Cruz Beach Boardwalk amusement park (Boardwalk), other properties in the area, and some of the land under the Bridge. In 1992, the Railroad sold Seaside a strip of land that ran across the northern edge of the Boardwalk property. That strip of land included the land under the Bridge to about the middle of the river. The Railroad’s tracks run the entire length of the parcel. As part of the sale, the Railroad reserved an easement in the railroad equipment existing at the time of the sale. The grant deed provides that the railroad equipment will remain the personal property of the Railroad.
The Bridge is made of steel girders and cross bars that rest on two large concrete piers and the land masses at both ends of the bridge. The Bridge contains two separate components: the train trestle (trestle) and a wooden walkway (walkway).
The trestle supports a single set of railroad tracks over a bed of wooden railroad ties. The ties are typically nine inches wide by 10 inches deep, and 10 feet long. The space between the rails is five feet wide. The railroad ties are uneven, with gaps between them. Lindsley estimated that the gaps between the ties are eight inches wide. Lindsley’s accident reconstruction expert measured the gaps between the ties in the area where the accident occurred and reported that the gaps vary in width from four to seven inches. There are no side rails or protective fences on either side of the trestle portion of the Bridge. The horizontal cross piece of the metal truss on the south (ocean-facing) side of the trestle extends “about 34 inches out and 48 inches down from the top of the south end of the wood ties.” Thus, there is a gap between the ends of the wooden railroad ties and the metal trusses on the trestle.
On the up-river side of the Bridge, outside the metal trusses, is a wooden walkway that is used by pedestrians and bicyclists. It runs parallel to the tracks, the full length of the bridge. The walkway has a four-foot wide, wooden plank surface. At the time of the accident there were railings composed of three rows of wire cables on both sides of the walkway. The first row of wire cabling was 16 inches from the wooden surface of the walkway. The remaining rows of wire cable were 12 inches apart.
The walkway has been used by the public as a recreational pedestrian and bicycle trail, connecting the east and west sides of Santa Cruz and linking pedestrian and bicycle trails, including the Monterey Bay Sanctuary Scenic Trail and the California Coastal Trail. The walkway also provides coastal access to Main Beach, the San Lorenzo River estuary, and the Boardwalk. In August 2003, an average 1,100 bicyclists used the walkway each day.
In the fall of 2003, the Railroad advised the City that it intended to close and barricade the walkway. The City and the Railroad then entered into an agreement in which the Railroad agreed the walkway could remain open for public use if the City agreed to take the lead in improving and maintaining the walkway.
At the time of the accident, there were large signs at the tops of both ends of the trestle that said “DANGER” and “LIVE TRACK - NO TRESPASSING.” There were four small signs on the trestle uprights on the east end of the Bridge that contained the words “No Trespassing.” In addition, there were at least two signs on poles stating “DANGER - LIVE TRACK - NO TRESPASSING.” It is not clear from the record where these signs were located. According to the parties’ separate statements it was undisputed that these signs were “mounted on poles approximately 20 yards on either side of the tracks.” A “Walk Your Bike” sign was posted at the entrance to the pedestrian ramp to the walkway at Murray Street.
II. Evidence Regarding Ownership of Bridge
Curt Dunbar, a licensed surveyor retained by Seaside reviewed a 1992 grant deed between Southern Pacific Transportation Company (the Railroad’s predecessor in interest; hereafter SP) and Seaside and opined that the deed transferred the land under the western half of the Bridge to the middle of the river to Seaside and that SP retained the land underlying the eastern half of the bridge. He also opined that the Railroad owned the entire Bridge, including the wooden walkway. In answers to interrogatories, the Railroad confirmed that it owned the entire Bridge and that it was responsible for the inspection, repair, and maintenance of the trestle portion of the Bridge.
III. Accident Facts
On January 18, 2004, 26-year-old Lindsley and his girlfriend, Victoria Cussen, were doing some work at Lindsley’s workplace, Santa Cruz Bicycles. Between 6:30 p.m. and 10:00 p.m. Lindsley consumed two and one-half 12-ounce beers. Shortly after 10:00 p.m., Lindsley and Cussen left for home, on their bicycles. They were headed westbound on the Bridge when the accident occurred.
Lindsley, an avid mountain biker and former competitive mountain bike racer, was riding a full-suspension mountain bike designed for “freeriding.” Upon reaching the Bridge, Lindsley decided to cross on the trestle portion of the Bridge rather than the walkway. Lindsley had used the Bridge to travel back and forth to work twice a day, five or six days a week, for about seven months prior to the accident. In the beginning, he used the walkway; but after 10 or 12 crossings, he began crossing at the trestle portion almost exclusively. He used the trestle because the walkway was too narrow to fit a person walking and another person pushing a bicycle. According to Lindsley, there was a danger of pushing someone over the “short” handrail. At the time of the incident, Lindsley was riding his bike between the two rails on the trestle portion of the Bridge, closer to the rail on the south (ocean-facing) side of the trestle.
Cussen decided to use the walkway because she was a “less accomplished rider” than Lindsley and was “more comfortable” on the walkway. When Lindsley was about halfway across the trestle, Cussen, who was at the entrance to the walkway, called out to him for help with her bicycle. Lindsley does not recall what happened next. He knows only that he fell from the Bridge.
Eyewitness Michael Orick was riding his bicycle eastbound on the walkway, in the opposite direction from Lindsley and Cussen. He was parallel to Lindsley, about 10 feet away from him when the accident occurred. Orick saw Lindsley simultaneously stop his bike and turn his head to look back at Cussen. He saw Lindsley take his left foot off his bicycle pedal and try to place it on the southernmost rail of the track. Lindsley’s left foot slipped on the rail and hit the tie, causing Lindsley to lose his balance and fall off the south (ocean-facing) side of the trestle. Orick testified that it was conceivable that Lindsley slipped on the tie and not the rail. At the time of the accident, the front wheel of Lindsley’s bicycle was perpendicular to the railroad ties. Lindsley landed on the easternmost concrete support pier under the Bridge. Lindsley was not using a bike light or flashlight; he was not wearing a helmet.
Santa Cruz Police Officer Aaron Case investigated the accident. He walked across the walkway on the night of the accident and did not notice anything unusual or unsafe about the walkway.
As a result of the incident, Lindsley sustained “a spinal fracture dislocation at T11 and T12, which resulted in paraplegia.” He also sustained “a skull fracture and closed head injury with residual cognitive deficits, including headaches and short term memory loss.”
Procedural History
I. Pleadings
In January 2005, Lindsley filed a complaint against Defendants for personal injuries on a premises liability theory. He alleged that his injuries were due to the following dangerous conditions: (1) unsafe surfaces for walking or biking on the walkway and the trestle; (2) “lack of adequate guarding structure on the sides of the walkway and trestle”; (3) lack of adequate lighting; (4) “inadequate width” of the walkway; (5) lack of warning signs; and (6) lack of a safe alternative bike path in close proximity to the Bridge. The Defendants answered the complaint.
II. Seaside’s Motion for Summary Judgment
Seaside moved for summary judgment, arguing that it was not liable for Lindsley’s injuries because it did not own, possess, or control any portion of the Bridge. Seaside acknowledged that it owned the property under the western half of the Bridge, but asserted that there was no causal connection between its property and Lindsley’s accident. It argued that it had not displayed the requisite open and notorious control over the Bridge and that mere knowledge that the adjoining property was dangerous was insufficient to create liability for Seaside.
In opposition, Lindsley argued that Seaside had assumed responsibility to maintain the Bridge in the contract to purchase the property under the Bridge. He asserted that Seaside exercised control over the Bridge when it repaired the walkway and the trestle and when it asked the Railroad to make repairs. Lindsley also argued that there was a triable issue of fact regarding the location of the dangerous condition that had caused his fall.
In reply, Seaside argued that Lindsley could not rely on its activities in 1997 when it was incorrectly advised and mistakenly believed it had a duty to maintain the Bridge and took action in accordance with that belief, since the accident occurred seven years after it stopped such activity. It also responded to Lindsley’s other arguments.
The court granted Seaside’s summary judgment motion on the grounds that Seaside did not own or maintain any part of the Bridge and that Lindsley fell onto the eastern pier of the Bridge, which was not on Seaside’s property.
III. The City’s Motion for Summary Judgment
The City moved for summary judgment on several grounds. It argued that Lindsley could not establish the existence of a dangerous condition of public property because the City never owned, controlled, or maintained the trestle where the accident occurred and the Railroad had confirmed that it had sole ownership, possession, and control of the trestle. The City argued that, even assuming it owned or controlled the walkway, it was not liable because there was no evidence that any of the alleged dangerous conditions of the walkway caused Lindsley’s injuries and the only substantial factor causing Lindsley’s injuries was his own unsafe conduct. It contended that the danger posed by crossing over the trestle was apparent to any person exercising due care. The City argued that it was not liable because it had no control over the allegedly narrow and unsafe width of the walkway and had no duty to provide an alternative bike path. The City argued it had no duty to post warning signs, barricade the trestle, or take other action to prevent Lindsley from trespassing on the trestle under the immunity for failing to enforce any law (§ 818.2). Finally, the City contended it was immune from liability pursuant to the recreational trail immunity (§ 831.4, sub. (b)) and the recreational activity immunity (§ 831.7).
In opposition to the City’s motion, Lindsley argued that the City admitted that, several months before the accident, it had assumed control over the walkway to repair the walkway and to discourage pedestrians and cyclists from using the trestle. Lindsley contended that the conditions that the City undertook to repair were the same hazards that he sought to avoid when he decided to ride his bike over the trestle rather than use the walkway. He argued that the City had recognized that the walkway was unsafe and that the conditions that made the walkway unsafe caused people to use the trestle. He argued that the trestle was a slipping hazard and that alternative routes over the river were unsafe for bicyclists. He contended that these facts created a triable issue whether the City’s conduct was a substantial factor causing his injuries. Lindsley argued that there was a triable issue regarding the adequacy of the warning signs and that he was not engaging in dangerous conduct when he took what appeared to him to be the safest route home. He asserted that if the City had upgraded the walkway surface and guardrails, the walkway would have been safe regardless of its width and cyclists would not have been tempted to use the trestle. He contended the City knew of the hazards of the walkway for years, but delayed the process of getting it repaired. Lindsley asserted that the recreational trail immunity and the recreational activity immunity did not apply because he was using his bike for transportation, not recreation, and he fell from the trestle, which was not part of a trail.
The court granted the City’s motion for summary judgment. It concluded there was no triable issue because the walkway had nothing to do with the accident and the City did not exercise control over the trestle and was not responsible for the trestle.
IV. Railroad’s Motion for Summary Judgment
The Railroad also moved for summary judgment, arguing (1) that the Federal Railway Safety Act and the Interstate Commerce Termination Act preempted Lindsley’s civil action based on the alleged dangerous condition of the railway; (2) that under Civil Code section 846, the Railroad was immune from suit based on Lindsley’s recreational use of the property; (3) that the Railroad had no legal duty to fence or block access to the railroad tracks; (4) that Lindsley could not state a cause of action for negligence because he could not say what caused his fall and he was the proximate cause of the accident; and (5) that the action was barred by the primary assumption of the risk doctrine.
In opposition, Lindsley argued that federal preemption did not apply for a variety of reasons. He contended the recreational activity immunity did not apply because he was not riding his bicycle for a recreational purpose and there was no evidence that the Bridge was held open to the public for recreational activity. He also argued there was a triable issue regarding the purpose of his ride on the date of the accident and that the primary assumption of risk doctrine does not apply to a person riding a bicycle home from work. Lindsley argued that the Railroad had a duty in this case. He asserted that his injury was foreseeable because pedestrians and bicyclists had used the Bridge for decades and the Railroad had acquiesced in that use. He contended the Railroad knew that people would cross over the trestle to avoid the narrow unsafe walkway, knew that people had been injured on the trestle, and knew that it needed to repair the walkway to avoid further injury. Lindsley argued that the Railroad should have placed gates at the ends of the tracks and that it would have been practical and inexpensive to install fall protection under the ties and along the sides of the trestle. He also contended the dangers in this case were not open and obvious and the adequacy of the warnings given was a question for the jury.
The trial court granted the Railroad’s motion for summary judgment finding that “whatever duty the [Railroad] owes was not violated in this particular situation, that it’s unreasonable to require the [Railroad] to either fence off the bridge, which would be a violation of State law, or to put gates on either end of the bridge, which would not be feasible, nor to place a net under the bridge itself, which … would also be an attractive nuisance to people.” The court declined to rule that the federal regulations preempted state tort law. The court felt there was a triable issue whether Lindsley’s use of the Bridge was recreational, which precluded application of the recreational use immunity and the primary assumption of the risk doctrine.
Lindley appeals the summary judgments in favor of Defendants.
Discussion
I. Standard of Review
We review an order granting summary judgment de novo, considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In undertaking our independent review of the present case, we apply the same three-step analysis used by the trial court. First, we identify the issues framed by the pleadings. Second, we determine whether the moving party has established facts justifying judgment in its favor. Finally, in most cases, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.)
A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) To be granted summary judgment, a defendant must show that one of the required elements of the plaintiff’s case cannot be established, or that there is “an affirmative defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (o)(2).) To show a complete defense, the defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a genuine issue of material fact exists as to that cause of action, element, or defense. (Code Civ. Proc., § 437c, subd. (o)(2).) There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 845.)
II. General Principles Regarding Premises Liability
Actionable negligence requires proof of the following elements: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 405 (Sakiyama).) The question here is whether Defendants owed Lindsley a duty of care. “The determination of duty is primarily a question of law. [Citations.] It is the court’s ‘expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ (Prosser, Law of Torts (4th ed. 1971) pp. 325-326.) Any number of considerations may justify the imposition of duty in particular circumstances, including the guidance of history, our continually refined concepts of morals and justice, the convenience of the rule, and social judgment as to where the loss should fall. [Citation.] While the question whether one owes a duty to another must be decided on a case-by-case basis, every case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct.” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, fn. omitted (Weirum).)
Since the existence of a duty is a question of law for the court, we determine de novo the existence and scope of the duty owed by each of the defendants to Lindsley. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.), superseded by statute on another point as stated in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768.)
The general principles that follow apply to private-party defendants like Seaside and the Railroad. Distinct rules that govern the tort liability of public entity defendants like the City are set forth under our discussion of the City’s motion for summary judgment.
In Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland), the Supreme Court set forth the well-known factors courts consider in ascertaining whether a legal duty exists: “[1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant’s conduct and the injury suffered, [4] the moral blame attached to the defendant’s conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.”
“Since Rowland v. Christian …, the liability of landowners for injuries to people on their property has been governed by general negligence principles.” (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407.) The general rules governing premises liability are set forth in Specher v. Adamson (1981) 30 Cal.3d 358, 368 (Specher), which states that a landowner has a “duty to take affirmative action for the protection of individuals coming upon the land….” This duty arises because the ownership of land includes the right to control and manage the premises. The landowner’s “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” (Id. at p. 370.) In premises liability actions, the right to control the premises lies at “ ‘the very heart of the ascription of tortious responsibility.’ ” (Id. at p. 369.)
“It is now well established that California law requires landowners to maintain land in their possession and control in a reasonably safe condition.” (Ann M., supra, 6 Cal.4th at p. 674, citing Civ. Code, § 1714 & Rowland v. Christian, supra, 69 Cal.2d 108.) The proper test to be applied is whether the possessor of land has acted as a reasonable person in the management of his or her property in view of the probability of injury to others. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156 (Alcaraz).)
III. Seaside’s Motion for Summary Judgment
A. Contentions Regarding Seaside’s Motion
Lindsley contends Seaside is liable for his injuries because “Seaside is the owner of the land on which the dangerous condition, the trestle bridge, is located” and Lindsley fell from the part of the Bridge on Seaside’s property. Alternatively, he argues that even if Seaside did not own the property, it exercised control over the property. Lindsley argues that the court erred in granting Seaside summary judgment because there are triable issues regarding: (1) whether the accident occurred on Seaside’s property; (2) whether Seaside maintained the Bridge; and (3) whether Seaside demonstrated “ ‘assertive, controlling conduct’ ” with respect to the Bridge.
B. Problems With Lindsley’s Briefs
Before we address these contentions, we shall discuss a problem with Lindsley’s appellate brief. At pages 28 through 31 of his opening brief, Lindsley sets forth 20 facts that purportedly demonstrate that Seaside exercised control over the bridge. None of the 20 facts are supported by citations to evidence in the record. Each and every statement in a brief regarding matters that are in the record on appeal, whether factual or procedural, must be supported by a citation to the record. This rule applies regardless of where the reference occurs in the brief. (Cal. Rules of Court, rule 8.204(a)(1)(C); In re S.C. (2006) 138 Cal.App.4th 396, 406 [“When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly being made”]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [record citations in statement of facts at the beginning of a brief do not cure failure to include pertinent record citations in argument portion of brief].) When a brief fails to make appropriate references to the record to support the points urged on appeal, the appellate court may treat those points as waived or disregard the offending portion or the brief. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 827.)
Just before listing his 20 facts, Lindsley cited four pages from his separate statement of additional undisputed facts in opposition to of the motion. Assertions of fact in a summary judgment appeal are not supported by citations to the record when the brief cites only the separate statement. In an appellate brief, an assertion of fact should be followed by a citation to the page(s) of the record containing the evidence that supports that fact. A separate statement is not evidence; it merely refers to evidence submitted in support of or in opposition to a summary judgment motion. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) In this case, each of the 20 facts on Lindsley’s list should have been supported by a record citation to the evidence that supported that fact.
Similarly, at pages 21 to 23 of his opening brief, Lindsley makes a fact-intensive argument that he fell from a portion of the Bridge that was over land owned by Seaside. His argument contains only two citations to the record, both of which are to his separate statement and not to the evidence that supports his additional facts.
Given the state of Lindsley’s brief, it is within our discretion to ignore his argument that Seaside exercised control over the Bridge. However, Seaside has responded to each of Lindsley’s 20 facts in detail with appropriate citations to the record. We shall therefore proceed to consider the merits of the argument, but we caution counsel with regard to the risks associated with a failure to properly cite to the record.
C. There Was No Triable Issue With Respect to Whether the Accident Occurred on Seaside’s Property
Ordinarily, “[a] defendant cannot be held liable for the defective or dangerous condition of property which it does not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) But “a defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz, supra, 14 Cal.4th at p. 1162.)
In our view, Seaside met its burden of showing that it did not own the property where the accident occurred. In 1992, Seaside purchased the property where the western portion of the Bridge is located from SP, the Railroad’s predecessor in interest. In the grant deed, SP reserved for itself and its successors a “perpetual easement” for “railroad operating purposes … over, across, under and through a strip of land 20 feet in width lying ten feet on each side of the center of an existing railroad track.” The grant deed provided that the railroad “shall have the right to own, … maintain, operate, use and/or remove existing and/or future railroad, rail and rail-related equipment” and that all improvements existing in the easement “shall remain the personal property of” the railroad. The deed also stated that Seaside had “previously paved and landscaped portions of the Railroad Easement area” and that Seaside “shall continue to be fully responsible for the maintenance of all improvements in the easement area, except for those installed by [SP] (e.g. rail, signal equipment, railroad equipment, communication lines). If improvements by [Seaside] (such as paving between the rails) causes additional maintenance expense to [SP], [Seaside] agrees to reimburse [SP]” such expense. (Italics added.)
Lindsley asserts that Seaside assumed responsibility to maintain the trestle and the walkway when it bought the land where the western portion of the Bridge is located. To the contrary, the grant deed provides that the existing railroad equipment, including the Bridge, is the property of the Railroad and that Seaside was not responsible for maintaining the railroad property installed by SP. In our view, the grant deed supports Seaside’s claim that it neither owned nor had a duty to maintain the Bridge.
Lindsley also contends that “Seaside failed to establish on its motion … that [Lindsley] fell from a part of the trestle bridge that was not on Seaside’s property” and argues there “was a triable issue of fact as to where [Lindsley] fell from the walkway.”
In its motion, Seaside relied on the results of a land survey done by Curt Dunbar of Dunbar and Craig in 1997, several years prior to the subject accident. The record includes Dunbar’s deposition testimony, as well as drawings and declarations prepared by Dunbar. Dunbar testified that the survey was based on his review of the 1992 grant deed, 25 other deeds relating to the property, maps of record, and maps not of record. At the time of Dunbar’s deposition, Seaside intended to file the record of Dunbar’s survey.
The record on appeal includes an aerial photo with the boundary lines established by Dunbar’s survey superimposed over the photo. The photo demonstrates that: (1) the entire east pier where Lindsley landed and (2) almost four feet of the rail that Lindsley slipped on west of the pier were outside Seaside’s property line. This was consistent with Dunbar’s supplemental declaration and a drawing he prepared in support of the motion, wherein he stated that the property line veers off at an angle in the area near the east pier. At its closest point, which is near the northernmost rail, the property line is 2.4 feet west of the pier. Orick testified that Lindsley slipped near the southernmost rail. The intersection of the property line and the southernmost rail is approximately 3.75 feet west of the pier. The intersection of the property line and the southern edge of the ties over which Lindsley fell is 6.4 feet west of the pier, and the intersection of the property line and the outside steel support is 8.5 feet from the pier. These facts establish that the entire east pier was outside of Seaside’s property and that the part of the pier where Lindsley landed (south of the ties) was at least 6.4 feet from the property line.
Lindsley attempted to dispute these facts and create a triable issue on the question of the location of Lindsley’s fall. He submitted a declaration and photographs taken by his attorney regarding a marker nail that Dunbar had placed in one of the railroad ties in 1997, marking the edge of Seaside’s property. The marker nail was driven into the tie near the northernmost rail, at the point where the property line is closest to the pier. Lindsey submitted a photograph of the southern end of the same tie and relied on that photograph to demonstrate that the property line is directly over the western side of the east pier. However, the photographs and the analysis prepared by Lindsley’s counsel did not account for the fact that the property line veers off at an angle toward the west in the area of the marker nail and does not continue in a straight line to the end of the 10-foot-long tie where the nail had been placed.
In opposition to the City’s summary judgment motion, Lindsley submitted a declaration from Robert Lindskog, a registered civil engineer. Lindskog stated that he dropped a plumb line from the marker nail and determined that the marker nail, and hence the property line, was located one foot west of the pier. As with Lindsley’s photographs, Lindskog’s declaration does not account for the fact that the property line veers off at an angle to the west at the marker nail. None of the evidence submitted by Lindsley created a triable issue regarding the fact that the area where Lindsley landed on the east pier was at least 6.4 feet outside of Seaside’s property line.
In addition to demonstrating that the area where Lindsley landed after the fall was outside its property, Seaside also established that Lindsley could not show that the allegedly slippery condition that caused the fall was on Seaside’s property. To prevail on the issue of ownership at trial, Lindsley had the burden to prove that Seaside owned the property where the dangerous condition that caused him to fall was located. One way a defendant can show that an essential element of the plaintiff’s cause of action cannot be established is to present evidence that the plaintiff “does not possess and cannot reasonably obtain, evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) Seaside met that burden in this case. When the plaintiff has had adequate opportunity for discovery, his or her factually void discovery responses may show that one or more elements of the claim cannot be established. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) In answers to interrogatories, Lindsley repeatedly stated that he had received a severe head injury in the incident and did not recall the events immediately before and after the fall. He was unable to describe his exact location on the Bridge at the time of the accident or describe the condition that caused him to lose his balance and fall off the Bridge. In deposition, Lindsley testified that he did not even recall crossing over the trestle on the date of the accident. According to Orick, Lindsley was closer to the south rail than the north rail when he stopped. He attempted to put his foot down, lost his footing, slipped on the south rail or a railroad tie, and fell over the side of the trestle. There was no evidence indicating where the accident occurred along the south rail in relation to Seaside’s property line.
Lindsley entered the Bridge from the east side, not from Seaside’s property at the west end of the Bridge. There is no evidence he crossed over the property line, onto the portion of the Bridge over Seaside’s property, before he fell. He landed on the concrete pier that was outside the property owned by Seaside. Based on our review of the evidence, we conclude that Seaside met its burden of showing that the accident did not occur on its property and that, despite his arguments to the contrary, Lindsley has not presented any evidence that creates a triable issue of fact whether the accident occurred on Seaside’s property.
D. There was No Triable Issue With Respect to Whether Seaside Maintained the Bridge or Demonstrated Controlling Conduct with Regard to the Bridge
Lindsley contends that Seaside contractually agreed, in its 1992 offer to purchase the property, to maintain both the trestle and the walkway. Lindsley relies on the following passage from the offer to purchase: “[Seaside] hereby agrees, after Close of Escrow, to be responsible for maintenance of all improvements (e.g. pavement, landscaping, etc.) on/in the Railroad Easement area except for [the Railroad’s] tracks and [the Railroad’s] railroad and/or communication equipment.” The language of the grant deed, which is quoted above, is more precise than the language of the offer to purchase. Where several contracts “relate to the same matters” and are parts of one transaction, they “are to be taken together.” (Civ. Code, § 1642.) When read together, the provisions in the offer to purchase and the grant deed provide that the preexisting railroad equipment, including the Bridge, is the property of SP and its successor, the Railroad, and that Seaside is not responsible for maintaining the railroad property installed by SP. We therefore conclude (1) that there is no merit to Lindsley’s contention that Seaside was contractually obligated to maintain the Bridge and (2) that the offer to purchase does not create a triable issue with regard to this question.
Lindsley contends that even if Seaside did not own the property where the accident occurred, it is liable for Lindsley’s injuries because it demonstrated “assertive, controlling conduct” with respect to the entire Bridge. Lindsley cites Alcaraz, supra, 14 Cal.4th 1149. In Alcaraz, a tenant sued his landlords for injuries he sustained when he stepped into a broken or uncovered utility meter box embedded in a narrow strip of city-owned land between the sidewalk and the landlord’s property. (Id. at p. 1153.) The defendants moved for summary judgment, arguing that they did not own the meter box or the land upon which it was located. (Ibid.) In opposition to the motion, the plaintiff argued that the landlords were liable because they maintained and controlled the subject premises. The plaintiff submitted evidence that the defendants cut the entire lawn in front of their building, including the city’s property where the meter box was located; that after the accident, the defendants built a fence that enclosed the entire lawn, including the city’s land and the meter box; and that the defendants had actual notice of the defective condition of the utility box. (Id. at p. 1154.) The Supreme Court affirmed the Court of Appeal’s order reversing summary judgment for the defendants.
The court explained: “Th[e] duty to maintain land in one’s possession in a reasonably safe condition exists even where the dangerous condition on the land is caused by an instrumentality that the landowner does not own or control. For example, in Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233 …, [the Supreme Court] held that the owner of land could be held liable for failing to warn its tenant of the danger posed by use of a crane near overhead electrical lines, even though the landowner neither owned nor maintained the electrical lines. The Court of Appeal reached the same conclusion on similar facts in Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393. Accordingly, in the present case, if the condition of the meter box created a dangerous condition on land that was in defendants’ possession or control, defendants owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not defendants owned, or exercised control over, the meter box itself. In other words, if the presence of the broken meter box made it dangerous to walk across land in defendants’ possession or control, defendants had a duty to place a warning or barrier near the box to protect persons on the land from that danger.” (Alcaraz, supra, 14 Cal.4th at p. 1156.) Although it was undisputed that the defendants did not own the land where the meter box was located, the court concluded that there was a triable issue of fact whether the defendants exercised control over the land and thus had a duty to protect or warn the plaintiff. The court explained: “ ‘ “[T]he duties owed in connection with the condition of land are not invariably placed on the person [holding title] but, rather, are owed by the person in possession of the land [citations] because [of the possessor’s] supervisory control over the activities conducted upon, and the condition of, the land.” ’ ” (Alcaraz, supra, 14 Cal.4th at pp. 1157-1158, citing Sprecher, supra, 30 Cal.3d at p. 368.)
Lindsley contends that he submitted much more evidence than the plaintiff in Alcaraz supporting the conclusion that Seaside exercised control over both the trestle and the walkway and that there is a triable issue whether Seaside exercised control over the trestle and the walkway. As we noted previously, Lindsley relies on 20 facts to demonstrate that Seaside exercised control over the Bridge. His facts can be divided into three groups: (1) facts relating to purchase of property where Bridge is located; (2) facts relating to Seaside’s activities between May 1997 and December 1997; and (3) facts relating to Seaside’s activities after 1997.
1. Evidence Relating to Property Purchase
The first “fact” Lindsley relies on is his assertion that Seaside agreed to be responsible for maintenance of the trestle and the walkway in its offer to purchase the property under the western portion of the Bridge. We have already disposed of this contention and interpreted the offer to purchase and the grant deed as providing that the Railroad, not Seaside, is responsible for the maintenance of the Bridge.
2. Evidence Relating to Activities in 1997
Lindley’s second through 12th facts allege that Seaside exercised control over the trestle and the walkway in a variety of ways between May 16, 1997, and December 2, 1997. Lindsley presented evidence that Seaside had its maintenance department do some work on the walkway in May 1997, which included hammering down nails, replacing some worn boards, and replacing a screen with expanded metal. The evidence does not indicate the exact location on the walkway where this work was done. In June 1997, Seaside asked its security department to monitor the behavior of people on the western half of the Bridge and to “intercede with those whose actions are unsafe and may be a precursor to injury.”
On July 11, 1997, Seaside asked the Railroad to repair two rail ties that presented “a hazard to the public passing beneath the trestle both in the water and on the land.” One tie was missing and the other was “hanging precariously by one end.” A Seaside internal memorandum dated August 4, 1997, confirmed that the Railroad repaired the ties.
In that same memo, Seaside employee Ian Mindling expressed concern that spikes in a track area west of the Bridge were coming up and were not keeping the rails secure. Mindling also noted that a couple of the boards on the walkway had started to warp and curve “so that they do not lie flat” and questioned who was responsible for renailing them. On August 13, 1997, Seaside sent a letter to the Railroad advising the Railroad that several spikes were loose, that trains were traveling through Seaside’s property in excess of the “proper speed,” and that some of the rails in the tracks west of the Bridge had metal slivers and chips that presented a hazard to Seaside’s barefoot patrons. Seaside asked the Railroad to resolve these issues.
We are not convinced that these facts are relevant or material since they involve areas of railroad track on Seaside’s property west of the Bridge. We include them nonetheless in our recitation of the facts that Lindsley relies on to show Seaside exercised control over the area where the accident occurred.
On September 4, 1997, Seaside asked the Railroad to provide it with the material safety data sheets on products and fuel that the Railroad carried on the rail line that ran through Seaside’s property so that it could respond to County Health Department inquiries regarding its Emergency Action Plan. In October 1997, Seaside asked its maintenance department to renail nails that were coming up and to secure a couple of loose boards on the western half of the walkway. In November 1997, Dunbar had his surveying crew set a spike in one of the ties, marking the edge of Seaside’s property line. Seaside asked its security staff to be aware of the property line marker and indicate in its reports whether incidents that occur on the Bridge are on or off Seaside’s property. On December 15, 1997, Seaside’s attorney sent a letter to the City public works department, advising the City that, contrary to the City’s assertion that Seaside owned the entire Bridge, Seaside’s “grant extends only to the center of the train trestle” and that the City owned the remainder of the Bridge. The letter stated that Seaside was interested in discussing “a cooperative means” of maintaining the walkway.
In support of its motion, Seaside presented evidence that there was some confusion between May 1997 and April 1998 regarding Seaside’s duties with regard to the Bridge. Seaside alleged that during that time it was “incorrectly advised by its counsel and mistakenly believed that it had some responsibility to maintain the Bridge” and undertook minor maintenance and repairs. On December 1, 1997, surveyor Dunbar advised Seaside that it owned fee title to the ground “to the approximate center of the river,” but that “ownership of the trestle structure would certainly depend upon the structure of any easements or leases by Southern Pacific.” Seaside clarified its obligations with regard to the Bridge in April 1998 when Dunbar completed his survey and confirmed that the Railroad (not the City) owned the property under the eastern half of the Bridge, that the Railroad owned the trestle and the walkway, and that the Railroad remained responsible for Bridge maintenance.
3. Evidence Relating to Activities After 1997
Lindsley’s facts numbers 13 through 20 relate to Seaside’s activities after 1997. Lindsley contends the following facts show that Seaside exercised control over the Bridge and should therefore be held liable for the dangerous conditions of the walkway and trestle that caused his accident.
On May 10, 1999, Seaside sent a letter to the Railroad inquiring on the status of the Railroad’s proposed repairs to the walkway. Seaside stated it hoped the repairs would be done before the start of its summer season on May 28, 1999. Seaside also provided the Railroad with copies it had received of letters between the Railroad and the City regarding “the status of the installation of the wire mesh guardrails” on the walkway.
On July 5, 2001, Seaside sent a letter to the City public works department expressing Seaside’s “strong support” for the City’s efforts to work cooperatively with the Railroad to improve safety conditions on the walkway. In the letter, Seaside suggested that the City’s maintenance personnel examine the walkway for loose boards and holes in the walkway surface and asked that such conditions “be corrected as soon as can be arranged.”
On July 19, 2001, Seaside sent a letter to the Railroad advising the Railroad that an individual had “fallen through the tracks by virtue of a missing tie.” In the letter, Seaside stated that Seaside “has no ownership interest” and “no maintenance obligation … with respect to the track or trestle” and advised the Railroad that there were other ties that were “spongy and/or weak in the same general area.”
On October 14, 2002, Seaside’s attorney sent a letter to the Railroad complaining of the Railroad’s lack of response to Seaside’s “numerous communications” regarding the “very poor condition” of the walkway and the fact “that it is continuing to deteriorate.” Seaside’s counsel asked to discuss the matter with the Railroad at the first opportunity.
On July 24, 2003, Seaside’s counsel sent a letter to the Railroad advising it of three incidents involving injuries on the Bridge that month. On July 10, 2003, a 12-year-old girl fell off her bike while riding on the walkway and fell into the river through the space between the walkway surface and the lowest part of the cable railing. On July 18, 2003, a woman fell twice and struck her ankle while walking over the railroad ties on the trestle. Fifteen minutes later, a boy was injured while walking over the trestle; his foot got caught between the ties and he fell down to his hip level. In the letter, Seaside’s counsel asked the Railroad to “immediately” repair the walkway and the ties.
In September 2003, the Railroad threatened to close the walkway. It argued it had “no operating need for the walkway” and “no duty … to maintain it for the sole use and benefit of” the City and Seaside. Thereafter, the Railroad met with the City and Seaside to develop a plan to repair and improve the walkway. The Railroad agreed to contribute $50,000 toward the cost of upgrading the walkway; the City agreed to submit a grant request to the State and contribute in-kind services in the amount of $35,000 for environmental review, design, inspection, and contract administration; Seaside agreed to provide an easement over its property for the construction of a ramp at the west end of the Bridge.
4. Analysis
We are not persuaded that these facts demonstrate control over the area where Lindsley’s accident occurred at the time of the accident. The court in Contreras v. Anderson (1997) 59 Cal.App.4th 188, 199-200 discussed the evidence required to support a finding of control over adjacent property. The court explained: “The Alcaraz court’s discussion of two ‘analogous’ federal circuit court cases also makes clear that evidence beyond ‘neighborly maintenance’ is required to support a finding of control. In Husovsky v. United States (D.C. Cir. 1978) 590 F.2d 944 … (Husovsky), the plaintiff was injured by a fallen tree which had stood on land the defendant maintained but did not own. [Citation.] But the evidence of control in that case went well beyond mere maintenance; it included an agreement between the defendant and the landowner regarding the use of the land, and the placement and maintenance of markings bearing the defendant’s insignia on that land. [Citation.] Indeed, the landowner had agreed to preserve the ‘ “ ‘natural, park-like character,’ ” ’ of its land such that it would be maintained in a ‘ “wooded state indistinguishable from contiguous ... parkland ...’ ” owned by the defendant. (Alcaraz, supra, 14 Cal.4th at pp. 1160-1161, quoting Husovsky, supra, 590 F.2d at p. 949.) The Husovsky court held that such evidence constituted a ‘notorious and open public display of control’ by the defendant. [Citation.] [¶] In Orthmann v. Apple River Campground, Inc. (7th Cir. 1985) 757 F.2d 909 (Orthmann), the plaintiff was injured when he dove into a river from land not owned by the defendants. [Citation.] In addition to evidence of maintenance of the adjoining property, an affidavit stated that subsequent to the incident the defendants, without permission from the landowner, cut down a tree on the land from which the plaintiff dove. [Citation.] The Orthmann court concluded: ‘It is possible to infer that the defendants, though they did not own the ... property, treated it as if they did – the cutting down of the tree after the accident being a dramatic assertion of a right normally associated with ownership or at least ... possession.’ ” (Contreras, at pp. 199-200.) “What Alcaraz, Husovsky, and Orthmann share … is evidence that the defendant took affirmative action to preclude or limit the adjoining landowner’s control of, or ability to control, its own property such that it is fair and reasonable to hold the defendant (whether solely or jointly with the neighbor) responsible for injuries that may occur on the adjacent property. The conduct of the defendant landowners in each of those cases was also a ‘notorious and open public display of control’ over adjacent property, such that members of the general public might reasonably rely on the apparent owner to warn or protect them from known hazards thereon.” (Id. at p. 200.)
We need not decide whether the maintenance activity that Seaside undertook with regard to the walkway in May and October of 1997 was sufficient to sustain a finding that it exercised control over the walkway at that time. Even if we assume Seaside exercised control over the walkway in 1997, it does not follow that it exercised control over the trestle or the walkway at the time of Lindsley’s accident in January 2004. There is no evidence that Seaside did any maintenance on the walkway after October 1997. Once the survey was completed in April 1998, Seaside took the position that the Railroad was responsible for maintenance of the walkway and ceased any maintenance activity in that area. In our view, sufficient time had passed prior to Lindsley’s accident to relieve Seaside of any duty that might have been created as a result of its activities on the walkway in 1997.
Moreover, there was no evidence that Seaside ever exercised control over the trestle. Each time it observed problems with the ties, tracks, spikes, or other railroad equipment, Seaside gave notice of the deficiency to the Railroad and asked the Railroad to repair it. In addition, some of the facts Lindsley relies on involve areas of the Railroad’s property that are outside the Bridge, on the tracks that run adjacent to the Boardwalk. As with the trestle, Seaside did not exercise control over those areas. It merely asked the property owner, the Railroad, to make repairs. Seaside’s requests for information about the cargo and fuel that traveled through its property so that it could respond to the local health department, its efforts to determine the location of its property line, and its efforts to educate its staff to be aware of the property line in investigating accidents did not amount to an exercise of control over the area where the accident occurred. Finally, Seaside’s agreement to provide an easement over its property for the construction of an access ramp for the walkway did not demonstrate control of the trestle area where the accident occurred. None of the evidence Lindsley relies on constituted a “notorious and open public display of control” or a dramatic assertion of a right normally associated with ownership or possession of the property that supported a finding of control. None of this evidence creates a triable issue of fact with regard to the issue of control.
Seaside met its burden of showing that it did not own, possess, or control the property where Lindsley’s accident occurred. Lindsley has failed to create a triable issue of fact with regard to Seaside’s ownership or control of the Bridge. We therefore conclude that Seaside has met its burden of showing that Lindsley cannot establish that Seaside had a duty to correct the condition or warn Lindsley of the allegedly dangerous condition of the trestle and that the trial court did not err when it granted Seaside summary judgment.
IV. City’s Motion for Summary Judgment
In his opening brief, Lindsley argues the trial court erred in granting the City summary judgment because there were triable issues of fact whether the walkway was the proximate cause of his accident and whether the walkway was a dangerous condition under section 830, subdivision (a). Lindsley contends that the City assumed control over the walkway months before his accident when it entered into an agreement with the Railroad to repair the walkway. He argues that the City agreed to repair the walkway so that it would be safe for pedestrians and cyclists and to discourage the public from using the trestle to cross over the river. Lindsley asserts that the City assumed control over the walkway to guard against the very conditions that caused him to use the trestle on the night of the accident: the deteriorated walkway surface and the inadequate railings. He contends that if the City had repaired the walkway before the accident, it would have been safe regardless of its width and the public would not have been tempted to use the trestle to cross over the river.
Lindsley once again makes a fact-intensive argument without citation to the record other than one brief citation to his separate statement of additional facts. In spite of this failing, we shall address the merits of his arguments against the City, but caution counsel to provide this court with appropriate citations to the record in the future.
The nature and extent of a public entity’s liability for injuries suffered on its property is governed by the Government Claims Act. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 (Metcalf).) “ ‘[A] public entity is not liable for injuries except as provided by statute (§ 815) and … section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. ‘[T]he intent of the [Government Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.’ ” (Ibid.)
To establish public entity liability under section 835 a plaintiff must prove the following elements: (1) “that the property was in a dangerous condition at the time of the injury”; (2) “that the injury was proximately caused by the dangerous condition”; (3) “that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred”; and (4) either “[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or ... [t]he public entity had actual or constructive notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835; Metcalf, supra, 42 Cal.4th at p. 1130.)
Section 835 provides: “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 either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
“Dangerous condition” is defined in section 830 as “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.” (§ 830, subd. (a).) “ ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.” (§ 830, subd. (b).) “Property of a public entity” and “public property” are defined as “real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.” (§ 830, subd. (c).)
In this case, while the City did not own the walkway, there was undisputed evidence that it exercised control over the walkway by virtue of its November 2003 agreement with the Railroad to share in the cost of repairing the walkway. But, while there was evidence that the City exercised control over the walkway, there was no evidence that it owned or exercised control over the trestle. In fact, the evidence indicated that the Railroad had sole ownership and control of the trestle. The problem with Lindsley’s claim against the City is that Lindsley’s accident occurred on the trestle, not the walkway. Moreover, Lindsley cannot identify the precise condition of the trestle that caused his accident. While Orick testified that Lindsley slipped on either the metal rail or one of the ties, there was no evidence that the condition of the rail or the tie was defective.
Lindsley attempts to hold the City liable by arguing that but for the dangerous condition of the walkway, he would not have crossed over the trestle. In Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148 (Bonanno), the court examined the liability of a public entity for dangerous conditions that affect adjacent property. The issue in Bonanno was whether “the location of a bus stop[, which had been established by the local transit authority,] may constitute a ‘dangerous condition’ of public property” because the location of the bus stop caused bus patrons to “cross a busy thoroughfare at an uncontrolled intersection.” (Id. at p. 144.) The court explained, “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).) A California Law Revision Commission comment accompanying the statute’s 1963 enactment expands on the relationship between public property and adjacent property with regard to dangerous conditions: ‘ “Adjacent property” as used in the definition of “dangerous condition” refers to the area that is exposed to the risk created by a dangerous condition of the public property…. [¶] … A public entity may be liable only for dangerous conditions of its own property. But its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.’ ” (Bonanno, supra, 30 Cal.4th at pp. 147-148.) The court added, “More specifically, the Courts of Appeal have … recognized that hazards present on adjoining property may create a dangerous condition of public property when users of the public property are necessarily exposed to those risks.” (Id. at p. 149.) “The existence of a dangerous condition is ordinarily a question of fact … but it can be decided as a matter of law if reasonable minds can come to only one conclusion.” (Id. at p. 148.)
The situation here does not fall within these definitions. The condition of the public property (the walkway) that created a risk of injury included the defective condition of the walkway surface and the configuration of the railings on the walkway. There was no evidence that these conditions caused Lindsley’s injuries. The trestle, which was adjacent to the walkway, presented its own distinct hazards. The surface of the ties was uneven. The spaces between the ties were open and there were no railings of any kind. Applying the definitions from Bonanno, it cannot be said that the condition of the walkway created a substantial risk of injury to persons on the trestle or that the condition of the trestle exposed those using the walkway to a substantial risk of injury. (Bonanno, supra, 30 Cal.4th at pp. 147-148.) In fact, the walkway was safer than the trestle and nothing about the configuration of the walkway affected those who chose to cross over the trestle. Nor can it be said that the condition of the trestle exposed those using the walkway to a substantial risk of injury. The two structures were separate, with each presenting its own risks and the trestle presenting more risks than the walkway.
Lindsley’s reliance on Gardner v. City of San Jose (1967) 248 Cal.App.2d 798 is misplaced. In Gardner, a 15-year-old pedestrian was struck by a car while crossing a busy street in an area without crosswalks or stop signs. The pedestrian subway underneath the street was not illuminated and was otherwise unsafe. There were no signs warning motorists to yield to pedestrians. The Court of Appeal upheld judgment for the plaintiff after a jury trial, reasoning that the situation created a trap because both the pedestrian and the motorist had the right of way due to the existence of the subway. (Id. at pp. 803-805.) Gardner is distinguishable from this case because the city in Gardner owned both the surface street and the pedestrian subway, which in combination created the dangerous condition, whereas the City here did not own or control the trestle where Lindsley’s accident occurred.
For these reasons, we conclude the trial court did not err when it held that the condition of the walkway had nothing to do with Lindsley’s accident and granted the City summary judgment.
Lindsley raises a new argument in his reply brief, where he asserts that the City is liable because the trestle portion of the Bridge is public property pursuant to a franchise agreement between the City and the Railroad. He also addressed this issue at oral argument. Although Lindsley had argued this issue in his opposition to the City’s summary judgment motion below, he did not rely on this theory in his opening brief. Issues that are not properly raised in the appellant’s opening brief will generally be disregarded on appeal. (Julian v. Hartford Underwriters Insurance Co. (2005) 35 Cal.4th 747, 761.) Points that are raised for the first time in a reply brief ordinarily will not be considered on appeal, because such consideration will either deprive the respondent of an opportunity to address the argument or require the effort and delay of an additional brief by permission. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794.) Since Lindsley raised this issue for the first time in his reply brief, we conclude that he has waived any claim that, under the terms of the franchise agreement, the trestle portion of the Bridge was public property.
Even if we were to address the claim, we would conclude that there was no evidentiary support for this theory. In support of this claim, Lindsley cites Holmes v. City of Oakland (1968) 260 Cal.App.2d 378. The plaintiff in Holmes, a six-year-old boy who was injured in a railroad right-of-way on a public street near his school in Oakland, appealed a trial court order sustaining the city’s demurrer to his complaint on the ground that he had failed to state a cause of action against the city. (Id. at p. 381.) One of the issues was whether the railroad right-of-way was public property for which the city could be held liable on a premises liability theory under section 835. (Id. at pp. 383-386.) The Court of Appeal concluded that the railroad right-of-way, which was located on a city street, was public property, based on a franchise agreement between the city and the railroad, which had been adopted as an ordinance by the city. Based on the terms of the franchise agreement, the court concluded that the property subject to the franchise agreement was under the control of the city and was therefore public property. (Id. at pp. 384-385.) Lindsley argues that the trestle portion of the Bridge is public property of the City because the City adopted an ordinance that is almost identical to the ordinance at issue in Holmes. But the situation here is factually distinguishable from Holmes for two reasons. First, the franchise agreement between the City and the Railroad that is in the record expired by its own terms in 1998, several years before Lindsley’s accident. Second, the franchise agreement applied to “railroad tracks located in, over, along and across” city streets. The bridge was constructed on and over land belonging to Seaside and the Railroad. Thus, even if we were to consider the issue, we would conclude that the franchise agreement does not apply to the Bridge.
In view of our conclusions, we shall not reach the City’s arguments that the action is barred by the recreational trail immunity and the recreational activity immunity.
V. The Railroad’s Motion for Summary Judgment
Lindsley contends the trial court erred in granting summary judgment to the Railroad because he produced substantial evidence of reasonable alternative safety measures that should have been taken by the Railroad. In support of his argument, Lindsley relies on the expert declaration of civil engineer Harry Krueper. In his declaration, Krueper suggested a safety net made of chain link fence should have been installed under the ties and along the outside of the metal portions of the trestle. He proposed upgrading the walkway by widening it and installing new railings and opined that the signs in place at the time of the accident were inadequate, illegible, poorly placed, and confusing.
As noted previously, in ascertaining whether the Railroad had a legal duty toward Lindsley, we examine “[1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant’s conduct and the injury suffered, [4] the moral blame attached to the defendant’s conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, supra, 69 Cal.2d at p. 113.) Lindsley’s arguments address one aspect of the sixth factor. However, a determination of duty in this case requires us to examine all of the Rowland factors.
“[F]oreseeability of the risk is a primary consideration in establishing the element of duty.” (Weirum, supra, 15 Cal.3d at p. 46.) “It is determined in light of the totality of the circumstances and balanced against the burden to be imposed.” (Sakiyama, supra, 110 Cal.App.4th at p. 406.) “To support a duty of care, the foreseeability must be reasonable. [Citations.] The Court of Appeal has articulated the standard as follows: ‘The reasonableness standard is a test which determines if, in the opinion of a court, the degree of foreseeability is high enough to charge the defendant with the duty to act on it. If injury to another “ ‘is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct’ ” [citations], we must label the injury “reasonably foreseeable” and go on to balance the other Rowland considerations.’ ” (Ibid.) But foreseeability alone is not sufficient to create a duty. (Id. at p. 407.)
While it was foreseeable that individuals might trespass on the Bridge, it was not foreseeable that a cyclist would ignore the safer alternative route on the walkway and attempt to ride at night over the trestle, which had no railings of any kind. It was undisputed that Lindsley knew the trestle had no guardrails, having crossed it hundreds of times before, and that he knew the track was a “live track” (used by trains two or three times a week). It was also undisputed that the Railroad had posted “No Trespassing” signs on the trestle and a “Walk Your Bike” sign at the entrance to the pedestrian ramp at the Murray Street entrance on the east end of the Bridge.
In discussing the closeness of the connection between the Railroad’s conduct and Lindsley’s injuries, the Railroad argues that Lindsley chose to ignore the obvious danger of attempting to cross the trestle at night. “As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Company (2005) 134 Cal.App.4th 118, 126.) Photographs of the trestle reveal the dangers inherent in crossing over the trestle. The ties were only 10 feet long and nine inches wide, with four- to seven-inch gaps between them, and there were no guardrails of any type. There were no structures beneath the ties. Lindsley was riding close to the southernmost rail approximately three to four feet from the exposed end of the bed of ties. Moreover, Lindsley cannot identify the exact condition of the trestle that caused him to fall. Orick testified that Lindsley’s foot slipped on either the rail or a tie, but there is no evidence that the rail or the ties in the area where the accident occurred were defective. The only evidence that addresses this point is the declaration of William Paxton, a professional engineer retained by the Railroad with extensive experience in railroad safety. Paxton worked for the Federal Railroad Administration for 25 years and was the principal author of the Track Safety Standards, which are codified at 49 Code of Federal Regulations part 213 (2008). Paxton stated that the installation and configuration of the tracks on the Bridge complied with federal regulations.
“ ‘Moral blame has been applied to describe a defendant’s culpability in terms of the defendant’s state of mind and the inherently harmful nature of the defendant’s acts.... [C]ourts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result [citation]; (2) had actual or constructive knowledge of the harmful consequences of their behavior [citation]; (3) acted in bad faith or with a reckless indifference to the results of their conduct [citations]; or (4) engaged in inherently harmful acts [citation].’ ” (Sakiyama, supra, 110 Cal.App.4th at p. 410.) With regard to the moral blame attached to the Railroad’s conduct, it was undisputed that the Railroad maintained the trestle in accordance with applicable Federal Railroad Administration regulations and that California Public Utility Commission regulations governing railroad clearances prohibited the Railroad from installing the fencing that Krueper suggested. It was also undisputed that the Railroad provided a pedestrian walkway as an alternative to crossing over the trestle and had entered into an agreement with City approximately two months prior to the accident in which it agreed to pay for a portion of the cost of upgrading the walkway.
With regard to the burden to the defendant and consequences to the community, the trial court stated that it would be “unreasonable to require [the Railroad] to either fence off the bridge, which would be in violation of State law,” or put a net under the Bridge, which would require the Railroad to net every trestle and bridge in California. The court also observed that netting the Bridge would create an attractive nuisance. The court stated: “Kids are going to determine that they can jump into the net and see if it works, which is not good at all.” We agree with the trial court’s conclusions. We note also that while Krueper opined that chain link netting under the Bridge would have prevented the accident, there was no evidence regarding the cost of installing the netting on the Bridge. Krueper stated that chain link fencing “has been used for restraint adjacent to highways, and on hillsides to prevent movement of rocks and gravel on to the highway,” but he did not state that it has been used on railroad trestles or bridges. Moreover, while Krueper had extensive experience with regard to highway and roadway safety, there was no evidence he had any expertise with regard to railroad construction or railroad facilities.
Application of these factors, in our view, weighs against the imposition of a duty against the Railroad in the situation presented here. We therefore conclude that the Railroad has met its burden of showing that it had no duty to Lindsley in the circumstances of this case and that the trial court did not err when it granted the Railroad summary judgment.
Disposition
The summary judgments in favor of Seaside, the City, and the Railroad are affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.