Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside CountyNo. RIC425702, Edward D. Webster, Judge.
Cihigoyenetche, Grossberg & Clouse, Anthony C. Ferguson; and George M. Rosenberg for Plaintiffs and Appellants.
Murtaugh Meyer Nelson & Treglia, Michael J. Murtaugh and Matthew W. Johnson for Defendant and Respondent.
OPINION
King, J.
I. INTRODUCTION
Plaintiffs John and Jane McLauchlin, husband and wife, appeal from a judgment entered in favor of defendant Lim & Nascimento Engineering Corporation (LAN), after the trial court granted LAN’s motion for summary judgment on plaintiffs’ complaint. John asserted a negligence claim for personal injuries he suffered in a single vehicle motorcycle accident on a near 90-degree curve on Bridge Street in the County of Riverside (County). Jane asserted a derivative claim for loss of consortium.
At the time of the accident, LAN was performing engineering work for the County on Gilman Springs Road, and had prepared a detour plan for diverting traffic from Gilman Springs Road onto Bridge Street. In his complaint, John claimed there was a dangerous condition on the Bridge Street curve where he was injured, and, as part of its work on the detour plan, LAN had a duty—to prospective users of the detour route—to conduct traffic studies, identify dangerous conditions, and make remedial recommendations to the County regarding any dangerous conditions on the detour route.
The trial court concluded that LAN did not have such a duty of care. We conclude there are triable issues of material fact concerning whether LAN owed such a duty of care to plaintiff John McLauchlin and other prospective users of the detoured roadway. We therefore reverse the judgment in favor of LAN.
II. UNDISPUTED FACTS AND PROCEDURAL HISTORY
A. The Single Vehicle Accident on Bridge Street
The following facts are undisputed. On October 12, 2004, at approximately 11:30 p.m., John lost control of his motorcycle while driving on a near 90-degree curve on Bridge Street in the County. At the time of the accident, he was riding his motorcycle to his home in San Jacinto from his place of employment in Brea. He took Interstate 60 east past Moreno Valley, then headed south on Gilman Springs Road. At the intersection of Gilman Springs Road and Bridge Street, all lanes of Gilman Springs Road were closed due to construction. A detour sign was posted on Gilman Springs Road, directing southbound traffic onto Bridge Street. The detour for southbound traffic included all of Bridge Street, a portion of the Ramona Expressway, and a portion of Sanderson Avenue.
Bridge Street was a two-lane, north-south, asphalt-surfaced roadway, and its lanes were divided by one solid line and one broken yellow line. Approximately one and one-half miles south of the detour that began at Gilman Springs Road, Bridge Street made a near 90-degree turn to the left. As John was either driving through or coming out of the curve, he lost control of his motorcycle, drove onto the right shoulder, and crashed. He suffered a fractured thoracic vertebra, four broken ribs, collapsed lungs, a ruptured spleen, closed head trauma, torn rotator cuffs, and other injuries. No other vehicles were involved in the accident. The weather was clear and the road was dry. John’s motorcycle was in good repair and its headlight worked.
John had driven on Bridge Street once before, but from the opposite northbound direction and during daylight hours. The posted speed limit on Bridge Street was 55 miles per hour, but immediately before the subject curve there was a sign with a directional arrow, indicating there was a curve and that the speed limit on the curve was 35 miles per hour. As John approached the curve, he saw the arrow and speed limit sign but said he had no time to read it. He also said he had no difficulty seeing the curve and slowed down to less than 40 or 45 miles per hour. When asked why he lost control, he explained that there were no markings separating the road from the right shoulder, and the yellow line in the middle of the road was washed out. It was also nighttime and the roadway was not well lit. The investigating police officer, noting there were no ruts in the road where the accident occurred, concluded that John was at fault for the accident.
At the time of the accident, LAN was performing engineering services for the County on an “on-call” basis. At the request of the County, LAN was performing engineering services for the rehabilitation of Gilman Springs Road. As part of its work on Gilman Springs Road, LAN prepared a Detour and Traffic Management Plan (the detour plan) providing for the temporary detouring of traffic from the closed portion of Gilman Springs Road. Southbound traffic on Gilman Springs Road was detoured to Bridge Street. Northbound traffic on Gilman Springs Road was detoured onto Route 79/Sanderson Avenue. The detour plan called for the placement of detour signs at various points along the detour route, including on Bridge Street, for purposes of advising motorists they were on the detour route. The detour plan did not call for the placement of any striping, signs, or other markings warning motorists of dangerous conditions along the detour route.
LAN was also not contractually responsible for installing, and did not install, any of the detour signs along the detoured route, including on Bridge Street. The County’s construction contractor, Yeager Skanska, Inc., was hired to install and did install detour signs on Bridge Street in accordance with LAN’s detour plan. No one posted any signs or other markings on the detour route either warning of or remediating any dangerous conditions on the roadway.
B. LAN’s Motion
John and Jane sued the County, LAN, and Yeager Skanska, Inc. for negligence and loss of consortium. In their first amended complaint, plaintiffs alleged that the 90-degree curve on Bridge Street constituted a dangerous condition of public property because it was “not . . . adequately signed and delineated” and “lack[ed] adequate natural or man-made visual delineation cues.”
Neither the County nor Yeager Skanska, Inc. are parties to this appeal.
LAN moved for summary judgment on the grounds it did not owe plaintiffs a duty of care in relation to the condition of Bridge Street and did not proximately cause plaintiffs’ damages. LAN’s motion was based on the premise that LAN’s work for the County did not require it to perform, and it did not perform, any engineering services or other work on Bridge Street. For purpose of the motion, LAN did not dispute that the 90-degree curve constituted a preexisting, dangerous condition of public property.
In response to LAN’s motion, plaintiffs claimed that, as part of LAN’s work on the detour plan, LAN had a duty to conduct “competent traffic engineering studies” on the entire route of the detour, including Bridge Street, in order to determine whether the detour was safe for the increased traffic being diverted onto Bridge Street by the detour plan, and to notify the County that traffic engineering had to be performed on the detour route before the detour was implemented. They argued that LAN’s failure to perform these tasks was below the standard of care for an engineering firm hired to prepare the detour plan, and that if LAN had performed or caused to be performed these tasks the existing dangerous condition on the 90-degree curve would have been identified and remedied before the detour plan was implemented, thus preventing the accident and plaintiffs’ injuries.
In its undisputed statement of facts, LAN set forth:
1. It is an engineering firm retained by the County in March 2001 to provide “on-call” engineering services;
2. LAN was retained to provide engineering services only for the rehabilitation of Gilman Springs Road;
3. Its only involvement in the matter concerned the rehabilitation of Gilman Springs Road;
4. At the further request of the County, LAN prepared the detour plan to provide for the detour from Gilman Springs Road onto and over Bridge Street; and
5. LAN was not responsible for the actual placement of the detour signs along Bridge Street.
These undisputed facts are supported by the following evidence:
1. The declaration of Guilherme Nascimento, the president of LAN, wherein he states that at no time did LAN undertake to provide professional services relative to the design, construction, or maintenance of Bridge Street; at no time has LAN undertaken to provide professional services concerning the street lighting or the original signage of Bridge Street; and
2. The declaration of Edward Ng, which indicates that he was LAN’s project manager. In its relevant portions, the declaration sets forth that “[d]uring the Project and at the County’s verbal request, LAN prepared a Traffic Control Management Plan to provide for the detour of southbound traffic from Gilman Springs Road onto Bridge Street and the detour of northbound traffic from Gilman Springs Road onto Route 79/Sanderson Avenue (the ‘Traffic Control Plan’). The detour was necessary due to the County’s requested closure of all lanes on Gilman Springs Road affected by the construction of the Project.” He further stated that LAN never undertook any services or labor concerning the installation of the detour signage along Bridge Street.
In closely parsing the facts submitted by LAN in support of its motion, they arguably do not support LAN’S position. The declaration of Mr. Nascimento indicates they did not undertake to provide professional services relative to the design, construction, or maintenance of Bridge Street; nor did it undertake to provide any services as to “original signage.” Nowhere does he mention the detour or temporary signage for the detour.
In opposition, plaintiffs submitted portions of the deposition of Lawrence Tai, the traffic engineer for the County. Mr. Tai stated that the County contracted with LAN for the project because the County did not have enough staff to handle it. LAN was the firm that designed the signage for the detour. The detour plan was included as part of the design package. LAN prepared the design plans for Gilman Springs Road, as well as the detour plan for the roads that would be affected by the closure of Gilman Springs Road. To his knowledge there was no other traffic engineering firm involved in the project. Deposition testimony of Mr. Ng indicated that LAN “prepared a detour, a plan—detour signing plan for taking traffic around the construction area, and basically that took it down Bridge Street and back up to the 79.” LAN was “tasked to do the signage for the detour itself.” Plaintiffs also submitted the declaration of David Royer, a licensed traffic engineer, wherein he discussed the inadequacy of the detour plan. Lastly, plaintiffs submitted the “Gilman Springs Road Detour and Traffic Management Plan.”
At the hearing on LAN’s motion, plaintiffs’ counsel clarified that plaintiffs were not arguing that LAN had a duty to remedy the dangerous condition of the curve on Bridge Street, even if that condition was exacerbated by the increased traffic being diverted onto Bridge Street by LAN’s detour plan. Instead, counsel argued that LAN had a duty to identify dangerous conditions on the detour route for the County, and make recommendations to the County on how to remedy the conditions.
Citing the declaration of plaintiffs’ expert traffic engineer, David Royer, plaintiffs’ counsel argued: “[T]he standard of practice is you do the following: You look at traffic counts. You pull the accident history . . . and say, hey, there is a problem here, let’s look at this. [¶] They’re not obligated to fix it. They’re not obligated to put the signs on. But they are obligated to look at it and make recommendations to the County that when we’re going to divert this amount of traffic . . . we do need to look to see if there’s adequate signage, if it’s safe for traffic that’s being diverted.” Plaintiffs’ counsel further argued it was reasonable to impose an obligation upon LAN to identify the dangerous condition and make remedial recommendations.
The trial court noted that, in plaintiffs’ points and authorities, there was “a very extensive list of things [plaintiffs] think [LAN] should do which includes traffic counts, collision surveys, other traffic analysis and engineering issues,” and that imposing such duties upon a professional engineering firm could be “fairly expensive and time-consuming in conjunction with every construction project.” The trial court also expressed concern that plaintiffs would make “the people doing the work on the road” responsible, rather than the city, county, or other entity who owned the road.
In response, plaintiffs’ counsel stressed that the traffic analysis it was suggesting was not very extensive, because traffic counts could be performed in a matter of hours and the accident history of a roadway could be quickly found through “state information on a computer.” Thus, counsel argued that imposing a duty upon an engineering firm to identify dangerous conditions and make remedial recommendations, as part of preparing a detour plan, would not be significantly expensive.
The trial court disagreed, and noted that, according to Mr. Royer’s declaration, LAN’s detour plan should have included an “‘evaluation of traffic impacts safety created by the significant changed traffic conditions along the detour route, evaluation of the existing traffic controls, and patterns of traffic collisions along the detour route to assure that the traffic systems can safely function within increased traffic impacts, evaluation of necessary upgrading, and proper placement of striping delineation, and signing of the subject curve on Bridge Street.’” The court also said that, based on its experience in dangerous condition cases, the required recommendations could also include “median barriers and . . . a multitude of other things.”
Plaintiffs’ counsel also argued that, had LAN performed traffic counts or reviewed public records, it would have discovered that over 6,000 cars would be traveling from Gilman Springs Road onto the detour on Bridge Street, and “[t]hat alone would impose an obligation to do some edge line work which would have demarked the difference between the roadway and the shoulder.” In sum, plaintiffs’ counsel argued that when an engineering firm prepares a detour plan it has an obligation to determine whether the plan is “adequately safe to divert the traffic onto that roadway.” At the close of the hearing, the trial court ruled that LAN did not have a duty to conduct any traffic engineering studies on the detour route, including Bridge Street, or make any remedial recommendations to the County.
The trial court also ruled that, if LAN had a duty to conduct traffic engineering to the extent plaintiffs suggested, then there were triable issues of fact on the issue of causation. Plaintiffs do not contest this ruling.
III. DISCUSSION
A. Standard of Review
A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subds. (b) & (o)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.)
A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.) The plaintiff may not rely upon the mere allegations in its complaint, but must set forth “specific facts” showing that a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted . . . . [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)
“On appeal, we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ [Citation.] ‘. . . Moreover, we construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ [Citations.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
B. Applicable Law and Analysis
1. Overview
As noted, plaintiffs sued LAN for negligence and loss of consortium. LAN is not liable for John’s injuries unless it owed John a legal duty of care, breached that duty, and its breach was a substantial factor causing John’s injuries. (Saelzler v. Adnvaced Group 400 (2001) 25 Cal.4th 763, 772.) In addition, Jane’s loss of consortium claim depends upon whether LAN is liable in tort to the injured plaintiff, John. (Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.)
“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.]” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) As a general rule, each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .” (Rowland v. Christian (1968) 69 Cal.2d 108, 112; Civ. Code, § 1714.) “‘Courts, however, have invoked the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act . . . .”’ [Citations.]” (Bily v. Arthur Young & Co., supra, at p. 397.)
“Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, ‘is a question of law to be determined [by the court] on a case-by-case basis.’ [Citation.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) “A judicial conclusion that a duty is present or absent is merely ‘“a shorthand statement . . . rather than an aid to analysis . . . . ‘[D]uty,’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ [Citations.]” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397.)
The dispositive question on this appeal is whether LAN had a duty to plaintiff John McLauchlin, and other prospective users of the detour route, to conduct traffic engineering studies in order to identify any dangerous conditions caused or exacerbated by LAN’s detour plan, and make recommendations to the County concerning how such conditions might be remedied. For the reasons that follow, we conclude that plaintiffs have raised triable issues of material fact concerning this question of duty.
“‘“Whether a defendant owes a duty of care . . . depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” [Citation.]’ . . . . [¶] ‘Foreseeability’ and ‘policy considerations’ are not determined in a vacuum, but rather depend, in our view, upon the particular circumstances in which the purported wrongful conduct occurred.” (Burger v. Pond (1990) 224 Cal.App.3d 597, 603; see Dillon v. Legg (1968) 68 Cal.2d 728, 742.)
Here, we address the particular policy considerations courts have considered in determining whether to impose a duty of care on a defendant in favor of a third party plaintiff with whom the defendant was not in contractual privity. “‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are [1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant’s conduct and the injury suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of preventing future harm. . . .’” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397, quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)
We begin this discussion by noting that the present matter is on appeal following the grant of summary judgment in favor of LAN. The sole issue is whether plaintiffs’ evidence has raised a triable issue of fact concerning the existence of a duty. We believe that it has. At trial, there may be additional evidence bearing on the issue of duty. The following discussion is not intended to lay the issue of duty to rest as it relates to this matter. We merely hold that, based on the evidence presented on LAN’s motion for summary judgment and its relationship to the above policy considerations, there are triable issues of fact concerning whether or not LAN owed a duty of care to plaintiffs to design a safe detour route.
The first two factors—the extent to which the transaction was intended to affect plaintiffs and the foreseeability of harm to plaintiffs—balance in favor of imposing a duty of care upon LAN. LAN had an on-call contract to perform engineering work for the County. As part of the Gilman Springs Road rehabilitation project, LAN was asked to prepare a “Detour and Traffic Management Plan.” The purpose of the detour plan was to direct motorists around the Gilman Springs Road project. The “General Notes” contained on the detour plan reference the safe movement of traffic. The contract between the County and LAN was intended to and did affect motorists, a class of persons of which plaintiff, John McLauchlin, was a member. Biankanja v. Irving, supra, 49 Cal.2d at pages 648 through 650 illustrates the application of these policy considerations. There, a notary public prepared a will for the decedent but negligently failed to have the will properly attested. In holding that the notary’s duty of care extended to the sole beneficiary of the will, the court reasoned that the “‘end and aim’ of the transaction [the notary’s preparation of the will] was to provide for the passing of [the decedent’s] estate to [the beneficiary].” (Ibid.)
Here, too, the “end and aim” of LAN’s agreement with the County to prepare a detour plan was to provide for the safe movement of traffic along the detour route. The “General Notes” on the plan referenced the “safe movement” of traffic. Furthermore, a dangerous detour route or other roadway poses a foreseeable risk of injury to all persons using the roadway. And, in this particular case, public records would have revealed that over 6,000 cars would be traveling on the southbound portion of the detour route through the Bridge Street curve.
Additionally, the number of persons using the southbound portion of the detour route was not limitless; it was identifiable and finite. Imposing a duty of care on LAN to identify dangerous conditions that would be caused or exacerbated by the detour plan, and make remedial recommendations regarding those conditions, would not create “limitless liability out of all proportion to the degree of [the] defendant’s negligence.” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at pp. 398-399.)
The third and fourth factors—the degree of certainty that the plaintiff will suffer injury and the closeness of the connection between the defendant’s conduct and the injury suffered are more evenly balanced. On one hand, the detour was over existing roads. No new temporary roadway was designed or constructed for purposes of diverting the traffic. The alleged dangerous condition, the approximate 90-degree turn, was long-standing and preexisted the detour. LAN did not engage in any conduct which increased the already existing risk of injury. The detour plan itself indicates that it is the responsibility of the contractor to install and maintain signs along the detour route. The “General Notes” further provide that it is the responsibility of the contractor to install such additional traffic control devices as may be required to insure the safe movement of traffic. Further, there is no guarantee that the contractor or the County would have installed additional signs and/or striping called for by LAN’s traffic management plan.
In the present matter, the “closeness of connection” between defendant’s alleged negligence and the injury, is far less attenuated than in Weseloh Family Limited Partnership v. K.L. Wessel Construction Co. Inc. (2004) 125 Cal.App.4th 152 (Weseloh). In Weseloh, there was a lack of evidence that the retaining walls were built in accordance with the plans and design of the engineers. The court therefore found that a causal relationship or “closeness of connection” between the negligence and the injury was lacking. Here, while it is not necessarily clear that the contractor would have installed the signs and/or striping called for on LAN’S detour plan, we do know that the contractor did install the “detour signs” called for by the plans.
On the other hand, it appears from the record that the detour plan resulted in a substantial increase in the number of vehicles traveling on the southbound portion of the detour route, including on the Bridge Street curve. LAN prepared the detour plan because the County’s engineering department was short-staffed. LAN was thus in a key position to advise the County regarding whether the increased traffic volume on the detour route caused or contributed to risk created by the preexisting dangerous conditions, and what remedial measures, if any, should have been taken to alleviate or eliminate these conditions. Further evidence of the degree of certainty that the plaintiff will suffer injury and the closeness of the connection between the defendant’s conduct and the injury suffered is provided by Mr. Royer’s declaration. And, while it is not necessarily clear that the contractor would have installed the signs and or striping called for on LAN’S detour plan, we do know that the contractor did install the “detour signs” as called for by the plans. We cannot say at this juncture that the evidence concerning these factors demonstrates the absence of a duty.
Mr. Royer stated he had 41 years of professional practicing experience, including being the principal engineer for the Los Angeles Department of Transportation. Most significantly, he opined that a reasonable detour plan “would have involved the evaluation of traffic impact safety created by the significant changed traffic conditions along the detour route. The adequacy of the existing traffic controls (traffic signals, striping and signing), and patterns of traffic collisions along the Detour Route needed to be evaluated, before implementation of the detour, to assure that the traffic system can safely function with the increased traffic impacts.”
The sixth factor—the policy of preventing future harm— augurs in favor of imposing a duty of care upon LAN. Safe public roadways are of utmost importance, and there is always a risk of serious injury, as opposed to a trivial or insignificant risk, on roadways where, as on the detour route, traffic flows at moderate to high rates of speed. Here, there are only three potential parties having the ability to address the safety of Bridge Street, a public facility, during the existence of the detour: (1) the County, (2) LAN, and (3) the contractor. Although the ultimate responsibility for dangerous conditions on the detour route may rest with the County, on this record the evidence showed that the County’s engineering department was understaffed and that the County relied on LAN to prepare a detour plan that would provide for the safe movement of traffic on the detour route. Indeed, and as noted, LAN itself recognized the necessity for safety in its detour plan.
Regarding the fifth factor, there is little if any moral blame to be attached to LAN’s conduct.
As the owner of Bridge Street, the County was responsible for injuries caused by dangerous conditions on Bridge Street. (Gov. Code, § 835; see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839-840 & fn. 5.)
2. Section 324A of the Restatement Second of Torts
For the reasons expressed above, there are also triable issues of material fact under the negligent undertaking theory of liability articulated in section 324A of the Restatement Second of Torts. This theory “subsumes the well-known elements of any negligence action, viz., duty, breach of duty, proximate cause, and damages.” (Paz v. State of California (2000) 22 Cal.4th 550, 559.) This theory also reflects the application of some of the well-known policy considerations courts have considered in determining whether one who undertakes to perform services for another has a particular duty of care to a third party. (See ibid.)
“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking. [Citation.]” (Paz v. State of California, supra, 22 Cal.4th at p. 559.)
Specifically as to the issue of “duty,” liability may be fastened on a defendant only when “(a) defendant’s failure to exercise reasonable care increased the risk of physical harm to the third person; (b) defendants undertook to perform a duty the other owed to the third person; or (c) the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz v. State of California, supra, 22 Cal.4th at p. 560.) Here, the essence of plaintiffs’ contention, is that LAN negligently failed to make remedial recommendations to the County sufficient to warn motorists of, or guide them around, an approximate 90-degree turn in the roadway. There is no dispute by the parties that this turn in the roadway was of a long-standing nature and preexisted the detour. LAN engaged in no conduct relative to the creation of the turn.
The issue thus becomes, whether (1) LAN undertook to perform a duty owed by the County to motorists traversing the detour, or (2) the harm suffered by plaintiff John McLauchlin was suffered because the County or Mr. McLauchlin relied on LAN’s undertaking of providing a detour plan.
Initially, we do not believe there exists anything in the record to conclude that plaintiffs relied on LAN’s undertaking of providing a detour plan. There does exist however, a dispute in the evidence as to whether LAN undertook to perform a duty (designing a safe detour) owed by the County to motorists using Bridge Street and/or whether the County relied on LAN to provide a plan depicting appropriate signing and/or striping for the detour. On one hand, Guilherme Nascimento, the president of LAN, declared that at no time did LAN undertake to provide professional services relative to the design, construction, or maintenance of Bridge Street; at no time did LAN undertake to provide professional services concerning the street lighting or the original signage of Bridge Street. Edward Ng declared that LAN never undertook any services or labor concerning the installation of the detour signage along Bridge Street. In counterbalance to these statements, Mr. Ng indicated that “[d]uring the Project and at the County’s verbal request, LAN prepared a Traffic Control Management Plan to provide for the detour of southbound traffic from Gilman Springs Road onto Bridge Street and the detour of northbound traffic from Gilman Springs Road onto Route 79/Sanderson Avenue (the ‘Traffic Control Plan’). The detour was necessary due to the County’s requested closure of all lanes on Gilman Springs Road affected by the construction of the Project.” Deposition testimony of Mr. Ng indicated that LAN “prepared a detour, a plan—detour signing plan for taking traffic around the construction area, and basically that took it down Bridge Street and back up to the 79.” LAN was “tasked to do the signage for the detour itself.” Lawrence Tai, the traffic engineer for the County, testified that the County contracted with LAN for the project because the County did not have enough staff to handle it. LAN was the firm that designed the signage for the detour. The detour plan was included as part of the design package. LAN prepared the design plans for Gilman Springs Road. as well as the detour plan for the roads that would be affected by the closure of Gilman Springs Road. To his knowledge there was no other traffic engineering firm involved in the project.
While each of these statements may very well be true, they nonetheless do not set to rest that LAN did not undertake a duty to provide temporary striping and signing to warn motorists of the turn in the roadway.
Based on this record we believe that triable issues exist as to whether LAN undertook a duty (the preparation of appropriate detour plans) owed by the County to foreseeable users of the roadway, and/or whether the County relied on LAN to provide a plan depicting proper signing and/or striping for the detour.
In Paz v. State of California, supra, 22 Cal.4th 550, the court found that neither “the record nor the law, ” demonstrated any basis for imposing a duty based on the defendant’s assumption of a duty owed by the City. In supporting its statement that the law did not impose a duty on the city, the Court relied on Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 6.) In Mittenhuber, the court found that the city was immune for failure to place signal lights at an intersection based on Government Code section 830.4. In disagreeing with the majority’s discussion of the defendant assuming the duty owed by the city, Chief Justice George indicated that the city owed to the users of the intersection a duty to alleviate a dangerous condition, and that plaintiff was alleging more than simply the failure to signalize the intersection. Chief Justice George also believed that a duty could appropriately be imposed under the theory that the city was relying on the developer’s undertaking to install the traffic signal.
3. LAN’s Arguments
Defendant relies on Gibbons v. City of San Bernardino (1951) 108 Cal.App.2d 33 and Thirion v. Fredrickson & Watson Constr. Co. (1961) 193 Cal.App.2d 299 for the proposition that a third party contractor does not owe a duty for a condition it did not create. In Gibbons, plaintiff’s decedent was killed in a solo car accident when his car hit a raised manhole. At the time of the accident, defendant, pursuant to a contract with the city, was performing construction work on the roadway. The city had raised the manhole on or before the date of the accident. The manhole was 21 feet south of the north line of Highland Avenue, in the portion of the paved roadbed which defendant was required to keep open for public travel and over which the city reserved control and authority. By the terms of the contract, defendant was prohibited from blockading the street or otherwise interfering with traffic in the area involved. There was a note on the construction plan, “Raise manhole to grade (work to be done by the city).” As stated by the court, “[u]ndoubtedly, defendant was under a duty to use reasonable care to see that the portion of the street under its control and upon which it had worked was reasonably safe, but the defendant assumed no obligation for the raising of the manhole or other work performed by the city at points in the street where defendant was not performing construction work.” (Gibbons v. City of San Bernardino, supra, at p. 35.) In alluding to the notation on the plans of “[r]aise manhole to grade (work to be done by the city),” the court stated that the note “clearly indicates that this work was not a part of the contract.” (Id. at p. 34.) Relative to the clause of the contract dealing with defendant’s obligation to warn, the court indicated, “[t]his clause refers to work done by the defendant and to excavations made and materials placed in the avenue by [defendant]. 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.” (Id. at p. 36.) We believe Gibbons simply stands for the proposition that a defendant does not owe a duty to correct or warn of conditions on property, over which it has no authority to exercise control. Such is not the case here; LAN exercised engineering control over the entire detour route by its preparation of the detour plan.
In Thirion v. Fredrickson & Watson Construction Company, supra, 193 Cal.App.2d 299, plaintiff was injured while driving in a construction zone. Plaintiff’s car went off the right side of the road, and after reentering the road, crossed over to the opposite side, hitting a ditch and striking a tree. In the general area where plaintiff lost control of his vehicle there was some loose gravel on the roadway as well as a preexisting six-inch depression in the roadway that could not be seen from a car but extended over an area “approximately three by five feet.” While defendant has relied on Thirion for the proposition that LAN does not owe a duty for a preexisting condition, the court, more to the point, found no evidence of negligence or causation. As stated by the trial court in granting a nonsuit, “‘there is no evidence proving or tending to prove that . . . [respondents] were negligent,’ and . . . ‘there is no evidence proving or tending to prove that any act or omission of . . . [respondents] was a proximate cause of the accident in question and the alleged injuries and damages sustained by the . . . [appellant].’ . . . ‘[u]pon the pleadings and evidence there has not been produced evidence which is sufficient as a matter of law to show any negligence on the part of either defendant [respondents], or to show any causal connection between any act or omission on the part of either defendant [respondents] and the accident to the plaintiff’s [appellant’s] car as a result of which the plaintiff [appellant] sustained injuries.’” (Id. at p. 303.) On the issue of duty, the court stated, “‘“[a] highway contractor doing work on a public highway or street owes to the traveling public the duty of protecting it from injury that may result from his negligence”’ [citation] and is under ‘a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions’ [citation].” (Id. at pp. 304-305.) “Although the depression lay within the area of the highway which respondents had contracted to reconstruct, they had not commenced work at that location. Admittedly respondents had not created the depression. To charge respondents, before they undertook to work in the locus of the depression, with liability for preexisting defects, would be to fasten upon them, immediately upon the assumption of the contract, an absolute liability for the condition of the entire highway within the project. It would be a physical impossibility for a contractor to correct every defect in the whole project as of the moment he commenced work.” (Id. at p. 307.) Here, plaintiff is not attempting to impose a duty on LAN to correct a condition prior to LAN beginning work in the area of the condition; plaintiff is simply proffering that LAN maintained a duty to recommend appropriate signing and warnings over an area of roadway that LAN had already exercised engineering control over, by way of its detour plan.
LAN in essence contends that it contracted with the County to perform engineering services relative to the reconstruction of Gilman Springs Road and it owed no duty to plaintiffs to design a safe detour route, conduct traffic studies, or make remedial recommendations to the County, because its contract with the County did not call for it to perform such work. Plaintiffs counter that in undertaking and preparing the Detour and Traffic Management Plan for Bridge Street, LAN owed a duty to motorists using the roadway to design a safe detour plan. We have analyzed the issue based upon the duty criteria set forth in Rowland v. Christian, supra, 69 Cal.2d 108, as well as Paz v. State of California, supra, 22 Cal.4th 550. The present record demonstrates that there are triable issues of fact concerning the presence or absence of such a duty.
C. Plaintiffs Made No Judicial Admissions to Preclude a Finding of Liability on LAN
The dissent would affirm summary judgment on the basis that the first amended complaint contains judicial admissions which “conclusively defeat [plaintiff’s] theory of liability against LAN.” The dissent proffers that because plaintiff alleges in the first cause of action that the County “had actual or constructive knowledge of the dangerous condition,” plaintiffs have judicially admitted that LAN’s alleged negligence in failing to notify the County and/or make recommendations for signage, cannot be present. We think this too broadly applies the concept of “judicial admissions,” and the use of plaintiff’s pleadings within the context of a summary judgment motion.
Plaintiffs’ amended complaint states three causes of action. The first is for dangerous condition of public property; the named defendant is the County. The second cause of action is for loss of consortium against all defendants, and the third cause of action is for negligence against LAN and Yeager Skanska, Inc. The paragraph relied upon by the dissent relative to the County’s knowledge of the dangerous condition appears only in the first cause of action against the County, and is not incorporated by reference into plaintiffs’ third cause of action against LAN. Furthermore, in order to properly plead a cause of action based on dangerous condition of public property, a plaintiff must plead that “(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 [Government Code] Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subds. (a) & (b), italics added.) As stated in Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439, “To state a cause of action against a public entity under [Government Code] section 835, a plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it. [Citations.]” (Italics added.)
To hold that a plaintiff has made a conclusive judicial admission by pleading a required element in a separate cause of action against a totally different defendant is simply applying the principle of law well beyond its intended scope. In Castillo v. Barrera (2007) 146 Cal.App.4th 1317, relied upon in the dissent, plaintiff Castillo, at the motion for summary judgment, attempted to argue that he was not the manager of Barrera, a prize fighter. In his complaint, however, Castillo made at least nine different averments that he was Barrera’s manager. As stated by the court, “Castillo’s repeated allegations that he acted as Barrera’s manager are not comparable to the one-sentence allegation in the complaint in Bahan [v. Kurland (1979) 98 Cal.App.3d 808] that the psychiatrist was acting within the scope of his employment.” (Id. at p. 1325.) A plaintiff is allowed to plead inconsistent and/or alternative theories. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) With countervailing evidence, allegations in the complaint will not bind the plaintiff on a motion for summary judgment. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1211.)
Lastly, this matter is before us on the limited issue of whether there exists a triable issue of fact as to “duty.” “Breach of duty” is not before us. The issue of whether LAN notified the County of a dangerous condition (thus placing the County on actual notice of the alleged dangerous condition), goes to LAN’s breach of duty, not to the initial issue of duty. For our purposes, there is no inconsistent judicial admission relative to “duty.”
IV. DISPOSITION
The judgment is reversed.
I concur: Miller, J.,
HOLLENHORST, J.
I dissent. I would affirm the judgment for no less than six separate reasons, as discussed below.
A. Plaintiffs’ Judicial Admissions Preclude Finding LAN Liable
First, I would affirm the judgment on the basis that plaintiffs’ judicial admissions conclusively defeat their theory of liability against LAN. “‘A defendant moving for summary judgment may rely on the allegations contained in the plaintiff's complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.’ [Citations.] ‘“While inconsistent theories of recovery are permitted [citation], a pleader cannot blow hot and cold as to the facts positively stated.”’ [Citation.]” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.)
In the operative first amended complaint, plaintiffs alleged that a dangerous condition at the accident site had caused John McLauchlin’s accident. Plaintiffs alleged the County created the dangerous condition by failing to adequately design the roadway when constructed and when the detour was installed, detouring traffic onto the roadway without conducting adequate traffic volume studies, failing to properly maintain the roadway, failing to install and maintain proper signs and markings, failing to warn of a hidden trap created by the dangerous condition, and failing to install and maintain adequate lighting. The complaint expressly alleged that the County “had actual or constructive knowledge of the dangerous condition under § 835.2 of the Government Code, and had sufficient time prior to the injury of [John], to have taken measures to protect against said dangerous condition. [The County] had actual knowledge of the existence of the condition described above and knew or should have known of its dangerous character; or, in the alternative, the condition described above had existed for such a period of time and was of such an obvious nature that [the County] in the exercise of due care, should have discovered the condition and its dangerous character in sufficient time prior to the incident alleged in this complaint to have taken measures to protect against such dangerous condition. Not[]withstanding the facts herein alleged, [the County] failed to correct or render safe said unsafe, hazardous and dangerous condition.” (Italics omitted.)
Plaintiffs assert on appeal the following basis for LAN’s liability: “If LAN had performed, or caused to be performed, traffic engineering on the entire detour route, the dangerous condition would have been identified and remedied prior to Mr. McLauchlin driving on Bridge Street on the night of the accident, thus preventing the subject accident and resulting serious injuries.” That theory is completely inconsistent with plaintiffs’ allegation that the County had actual or constructive knowledge of the dangerous condition in advance of John’s accident and had sufficient time to remedy that condition. Plaintiffs’ judicial admissions conclusively establish that their theory of recovery against LAN has no merit. (See Castillo v. Barrera, supra, 146 Cal.App.4th at p. 1324.) Thus, I would affirm the judgment.
B. No Basis for LAN’s Liability Can Be Established Under Paz v. State of California
Second, I would affirm the judgment because, even assuming for purposes of argument LAN was required to conduct traffic studies, identify dangerous conditions, and make remedial recommendations to the County regarding those conditions, this case is controlled by the principles our Supreme Court set forth in Paz v. State of California (2000) 22 Cal.4th 550 (Paz), and those principles provide no basis for holding LAN liable to plaintiffs.
Although in my view Paz provides the framework for any analysis of LAN’s liability, the parties have failed to discuss or even cite to Paz.
In Paz, the plaintiff, who was injured in a traffic accident at an intersection controlled by a stop sign, contended the intersection was dangerous because sight lines were obstructed. (Paz, supra, 22 Cal.4th at p. 553.) Defendant Stoneman Corporation (Stoneman) was required to design and install traffic signals at the intersection as a condition of the 1988 approval of a condominium development project. Stoneman in turn hired defendant Katz, Okitsu & Associates (KOA) to design the traffic signals and striping plan and obtain necessary permits for the installation. However, those permits had not been obtained at the time of the plaintiff’s accident in 1991, nor had the traffic signals been installed. The plaintiff alleged the defendants had negligently delayed in installing the traffic signals, and such signals would have removed the dangerous condition of the intersection. (Id. at pp. 553-555.) The trial court granted summary judgment in favor of the defendants, but the appellate court reversed, holding that the defendants were required by contract to provide traffic signals at the intersection; they had a duty to motorists to install those signals in a reasonable and timely manner; and because of their failure to do so, the preexisting dangerous condition contributed to the plaintiff’s injuries. (Paz, supra, 22 Cal.4th at p. 554.)
On appeal, the California Supreme Court held, “A contract for a public project does not create a general duty to third persons that gives rise to negligence liability, with respect to an allegedly dangerous condition the contract work may correct, if the requirements for application of [Restatement Second of Torts,] section 324A [hereafter, section 324A] are not otherwise satisfied.” (Paz, supra, 22 Cal.4th 550, 554, italics added.) The court explained, “Section 324A prescribes the conditions under which a person who undertakes to render services for another may be liable to third persons for physical harm resulting from a failure to act with reasonable care. Liability may exist if (a) the failure to exercise reasonable care increased the risk of harm, (b) the undertaking was to perform a duty the other person owed to the third persons, or (c) the harm was suffered because the other person or the third persons relied on the undertaking.” (Id. at p. 553.)
The court observed that “[s]ection 324A’s negligent undertaking theory of liability subsumes the well-known elements of any negligence action, viz., duty, breach of duty, proximate cause, and damages,” and that the existence of duty is a question of law to be resolved by the court. (Paz, supra, 22 Cal.4th at p. 559.) The court continued, “‘To say that someone owes another a duty of care “‘is a shorthand statement of a conclusion, rather than an aid to analysis in itself. . . . “[D]uty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ [Citation.]” [Citation.] “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” [Citation.]’ [Citation.]” (Ibid.)
The court assumed for purposes of argument that the defendant had undertaken the duties that the plaintiff had alleged had been negligently performed. (Paz, supra, 22 Cal.4th at p. 559.) As the Supreme Court did in Paz, I will assume for purposes of argument that LAN undertook the duties that plaintiffs allege were negligently performed and that LAN’s contract with the County constituted “an undertaking ‘to render services to another which [defendants] should recognize as necessary for the protection of [third persons] . . . .’ [Citation.]” (Id. at pp. 559-560.) However, as in Paz, I would find that none of the three conditions for liability under section 324A is present.
The first condition for such liability is satisfied if the defendant’s conduct increased the risk of physical harm to the plaintiffs beyond that which already existed. (Paz, supra, 22 Cal.4th at p. 560.) Here, no such showing was made. As the plaintiffs alleged, the dangerous conditions on the detour route were pre-existing. And any failure to conduct traffic studies did not increase the risk of harm because it was undisputed that John’s accident occurred late at night when traffic was light.
The second condition for such liability is satisfied if the defendants undertook to perform a duty another person owed to third persons. (Paz, supra, 22 Cal.4th at p. 560.) Here, plaintiffs have failed to establish that LAN undertook such a duty. Even assuming for purposes of argument the County owed a duty to third persons to perform traffic studies and identify and remedy dangerous conditions on the detour route, the undisputed terms of LAN’s contract with the County establish that LAN did not undertake that duty.
The third condition for such liability is satisfied if “the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz, supra, 22 Cal.4th at p. 560.) Here, plaintiffs have failed to establish that the County or plaintiffs relied on LAN’s undertaking. As Edward Ng’s undisputed testimony established, the installation contractor, not LAN, “shall locate the signs per the traffic controls manual and as directed by the County’s construction engineer.” The County engineers knew the scope of the services to which LAN agreed to perform under the verbal agreement, and undisputed evidence established that County engineers reviewed LAN’s design package.
Thus, I would conclude that under Paz, plaintiffs have failed to establish any basis for LAN’s liability.
C. The Scope of LAN’s Duty Was Established by Its Verbal Agreement with the County
Next, I would affirm the judgment on the ground that the scope of LAN’s duty of care was defined by the terms of its contract with the County, and undisputed evidence established that LAN contracted only to provide a signage plan for the detour.
Edward Ng provided a declaration in support of LAN’s motion for summary judgment. The declaration stated that in the course of LAN’s contract with the County to provide engineering services in connection with the rehabilitation of a two-mile segment of Gilman Springs Road, the County verbally requested LAN to prepare “a Traffic Control Management Plan to provide for the detour of southbound traffic from Gilman Springs Road onto Bridge Street and the detour of northbound traffic from Gilman Springs Road onto Route 79/Sanderson Avenue . . . .” Ng stated in his declaration and testified at his deposition that LAN’s verbal contract with the County to provide a signage plan for the detour did not include conducting traffic counts, reviewing the signs on Bridge Street, or determining whether existing signage and lighting on Bridge Street was adequate for the added traffic volume from the detour. Ng further stated that LAN did not determine the location of the signage that was placed for the detour. He testified, “The plans and specifications say that the contractor shall locate the signs per the traffic controls manual and as directed by the County’s construction engineer.” Ng reiterated that LAN had not been asked to review the signs on Bridge Street. Moreover, LAN had not been asked to look at the lighting on Bridge Street.
Undisputed evidence established that County engineers reviewed LAN’s design package. A County engineer testified that typically, the contractor “would install or determine the location [of detour signs] and the County would concur with its location.” As the trial court stated, the scope of the work LAN undertook under the verbal contract was “where to put these commonly recognized detour signs. And I don’t see any other plan here or I see nothing in the scope of work other than to do that.”
Plaintiffs did not produce any evidence that the actual terms of the contract between LAN and the County were different from those described by Ng. Rather, their expert’s declaration posited that a “reasonable” contract would have called for an engineering evaluation of the safety of the proposed detour route, including the adequacy of existing traffic controls and the accident history of the route.
Thus, in essence, the majority seeks to hold LAN liable on the basis that it failed to enter into a contract different from the one it actually entered into with the County. Although in David Royer’s opinion, a “reasonable” traffic engineering plan would have included conducting traffic studies, identifying dangerous conditions, and making remedial recommendations to the County regarding those dangerous conditions, that is not the contract LAN and the County entered into. In my view, an expert witness is not competent to give evidence about the meaning of a contract between two other parties. In my view, LAN’s obligations were limited by the terms of its undertaking, and that undertaking provides no basis for holding LAN liable to plaintiffs.
Although a different result might obtain with respect to a contract between a professional engineering firm and a lay client, here, the contract was between a professional engineering firm and the County’s Transportation Department. I perceive no reasons in policy or logic why the Transportation Department could not enter into a contract for limited engineering services such as in the present case.
D. The Biakanja Factors Do Not Support a Finding of Duty
The majority acknowledges that “whether a duty of care exists in a given circumstance, ‘is a question of law to be determined [by the court] on a case-by-case basis.’” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, italics added.) Thus, the trial court was required to determine, based on policy considerations, whether LAN owed a duty to plaintiffs. The majority nonetheless goes on to conclude that plaintiffs have raised triable issues of material fact as to the issue of duty. The majority bases that conclusion on its analysis of factors courts consider in determining whether to impose a duty of care in favor of a third party with whom the defendant was not in contractual privity, as set forth in Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (Biakanja) and Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland), superseded by statute on other grounds as stated in Perez v. Southern Pacific Transportation Co. (1990) 218 Cal.App.3d 462, 467.
In my view, the Biakanja factors direct a conclusion that LAN owed no duty of care to plaintiffs under the circumstances. The first two factors concern the extent to which the transaction was intended to affect the plaintiff and the foreseeability of harm to the plaintiff. (Biakanja, supra, 49 Cal.2d at p. 650; Rowland, supra, 69 Cal.2d at p. 113.) The majority concludes that these factors support finding LAN liable because the purpose of the detour plan was to direct motorists around the Gilman Street project, and the “General Notes” portion of the detour plan “reference[] the ‘safe movement’ of traffic.” (Majority opinion at p. 16.) In context, however, the “General Notes” state, “It is the responsibility of the contractor performing work on a public street to install and maintain the traffic control devices as shown herein, as well as any such additional traffic control devices as may be required to insure the safe movement of traffic and pedestrians through or around the work area and provide maximum protection and safety to construction workers.” Thus, the actual language of the “General Notes” does not support the majority’s conclusion.
The third and fourth Biakanja factors are the degree of certainty the plaintiff suffered harm and the closeness of the connection between the defendant’s conduct and that harm. (Biakanja, supra, 49 Cal.2d at p. 650.) Although the plaintiffs’ harm is certain, I would accord little weight to that factor. And the connection between LAN’s conduct and plaintiff’s harm is at best attenuated. As plaintiffs have alleged, the County already knew of the preexisting dangerous conditions at the accident site.
The majority acknowledges, and I agree, that little if any moral blame attaches to LAN’s conduct, and thus, the fifth factor militates against a finding of duty.
The sixth factor is the policy of preventing future harm. Here, as the majority acknowledges, the County was ultimately responsible for injuries caused by dangerous conditions on Bridge Street. Thus, this is not a case where an injured plaintiff will be left without remedies if fault is found. And the County was in a better position than LAN to insure against the risk created by the dangerous conditions.
E. Causation
Assuming for purposes of argument that the allegations of plaintiffs’ complaint do not constitute judicial admissions precluding any liability on the part of LAN, I would affirm the judgment on the basis that plaintiffs have presented no triable issue of fact regarding causation.
John testified in his deposition that he knew about the curve on Bridge Street from having traveled on that road before. He testified unequivocally he did not have any difficulty seeing the curve on the night of the accident; rather, he testified he had slowed down when he saw the curve coming, and he had already negotiated the curve or was “basically through the curve” when he lost control.
As the trial court stated, plaintiffs’ arguments based on the increased traffic count “absolutely played no role in this single motorcycle accident at about 8:30 [sic at night, and I would see no causation between the work that [LAN] may have been responsible for on Gilman Hot Springs Road and what’s here.” The trial court further observed, and I would agree, “If he [John] sees the curve going into it, and he’s been on the road before and he still remembers the configuration of the road, and the purpose of the detour sign, which I think is clear to me and to everyone is to direct you back to where the road picks up after the detour, how could the engineering company possibly be liable?
Actually, John testified the accident had “occurred at 12:30 or 11:30.”
Plaintiffs have pointed to no evidence in the record to refute the trial court’s observations, with which I agree. Thus, plaintiffs have failed to demonstrate that any material issue of fact existed as to causation.
F. Plaintiffs’ Failure to Provide Citations to the Record
Finally, in utter disregard of the rules governing appellate briefs (Cal. Rules of Court, rule 8.204(a)(1)(C)), plaintiff’s brief on appeal is entirely devoid of citations to the trial court record, with the exception of references to the pages of the Reporter’s Transcript at which the trial court stated its intended ruling. This omission would permit the court to deem plaintiff’s claims forfeited on appeal, and on that basis alone, I would have declined to reach the merits of the issues. (See Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1213 fn. 12.)
And, in our de novo review of the order granting defendants’ motion for summary judgment, we are not bound by the trial court’s reasoning. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1001.)
G. Conclusion
For all of the above-stated reasons, I would affirm the judgment in favor of LAN.
Mr. Royer also presented evidence that, “with the detour in effect, the combined traffic volumes on Bridge Street [i.e., northbound and southbound] would be expected to increase to well in excess of 8,000 vehicles per day.” Thus, he opined that “[t]he increase in traffic volumes on Bridge Street required the installation of an edge line on Bridge Street,” in order to provide motorists a visual cue of the curve in the roadway. Mr. Royer also described additional remediation measures, including additional signage and centerline striping that, in his opinion, LAN should have recommended as part of the detour plan.
In addition, Mr. Royer presented evidence that, during the one month period after the detour plan was implemented, “there were five reported serious traffic collisions, including Mr. McLauchlin’s collision,” but these collisions ended “as soon as the County upgraded the traffic controls.” He also stated that, “[a] pattern of traffic collisions, at the subject curve, existed prior to the implementation of the detour. In the one year period prior to implementation there were four reported collisions. This lack of proper traffic controls at the subject curve, and the pattern of previous collisions was an open and obvious defect which would have been corrected with proper engineering of the detour route.”
Mr. Royer also criticized the detour plan for calling “for a ‘Detour’ sign, with an up arrow, to be installed immediately in advance of the subject sharp left curve. Installation of an up arrow in advance of a curve gives a confusing and false indication to drivers that they should proceed straight if they wanted to follow the detour route, rather than turn left at the curve.”
In conclusion, Mr. Royer stated: “In my professional opinion, the failure to perform a reasonable Traffic Engineering Plan calling for the necessary upgrading and proper placement of the striping, delineation and signing of the subject curve, was below the standard of care for engineering and created a danger to motorists. Without the proper traffic controls at this curve, drivers unfamiliar with the curve lacked the visual cures to adequately understand the sharpness and extent of the roadway curvature. This dangerous condition was the direct result of an inadequately engineered plan and was the proximate cause of the five collisions in a one month period which occurred at this curve, including Mr. McLaughlin’s collision and resultant serious injuries.”