Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C 05-02099
Reardon, J.
Virginia and James Morton appeal the summary judgment in favor of the City of Antioch (City) and Pacheco Brothers Gardening, Inc. (Pacheco Brothers) on their personal injury and loss of consortium claims arising from a slip and fall accident on exterior stairs at a City-owned park. Pacheco Brothers held the landscaping and maintenance contract for city parks. We reverse.
I. FACTUAL BACKGROUND
Respondent City owns and operates the Prewitt Family Water Park, located at 4701 Lone Tree Way in Antioch. The Little Sprouts Preschool is located within the park. Approximately 15 to 20 children attend the school on a daily basis.
On the morning of December 7, 2004, Virginia Morton brought her daughter to the Little Sprouts Preschool. There was a light rain that morning, and the concrete walkways were wet. She went up a set of seven concrete steps to get to the classroom. Leaving the classroom that morning, Ms. Morton headed down the stairs toward the driveway. She was wearing open-toed, flat-heel, rubber-soled sandals. On the second or third step Ms. Morton slipped on wet leaves, landing in a pile of wet leaves at the bottom of the steps and breaking three bones in her left foot, one in the right.
Parents regularly drop off and pick up their children from the preschool. There were no other reports on December 7, 2004, of any danger or accident relative to the external stairs.
Ms. Morton declared that “the steps were covered with leaves,” and “the stairs and leaves were soaked from a steady rain. . . . [T]he combination of the leaves, dirt, grime and water made the steps as slick as if it were ice at the time of my fall.”
The City contracted with Pacheco Brothers Landscaping to provide landscape maintenance services at its parks, including Prewitt Family Water Park. The contract between the City and Pacheco Brothers provides: “Surfaces shall be blown free of leaf litter and other debris on an as-needed basis (most often in fall months). Vacuuming or sweeping may be employed instead of blowing.” The contract further stated: “Sidewalks, pathways and hard surfaces shall be policed at least three (3) times weekly—on Mondays, Wednesdays and Fridays. They shall be cleaned thoroughly once a week, by sweeping, backpack blowing, or hosing off.”
Ms. Morton stated in her declaration that at the time of her fall, she noted there was a landscaper (who she believed worked for Pacheco Brothers) on the premises, blowing leaves “very close to” the steps in an area where there were no pedestrians. The steps with the wet, slick leaves were on the route many of the parents and children would take to get to the preschool.
Felipe de Jesus Chavez was “second in command to the supervisor” for Pacheco Brothers on the day of the accident. During the month of December 2004, the crew would do leaf blowing on a daily basis in the Prewitt Family Water Park. Chavez and three other people would arrive at the park between 7:15 and 7:20 a.m. He was aware that “all the people arrive” at 8:00 a.m. and that this particular park was the one “where we have the most people coming in with children.” He had been instructed to clean the steps off before 8:00 a.m. If it “were to rain and there were leaves there, we’d have to go back again because the leaves have fallen. [¶] . . . [¶] . . . [L]eaves do get slippery when they’re wet, which is why we have to go back and clean the leaves off when it rains. [¶] And if it rains again and there are more leaves, we have to go back and clean again.” They clean this way so accidents do not occur.
Appellants had asked during discovery for employment and work records to identify the Pacheco Brothers landscaper who Ms. Morton had identified working near the stairs. Appellants were told “they [didn’t] have them.” But three days prior to the hearing on the summary judgment motion, defense counsel indicated that a supervisor working that day had been located and he would testify that the stairs had been cleaned before 8:00 a.m. on the day of the accident. Chavez was that previously undisclosed witness. Defense counsel agreed to allow appellants to depose Chavez; the deposition took place the day before the hearing. Appellants filed a letter request asking for a continuance to produce a formal complete transcript for the court to consider, indicating Chavez’s testimony was critical on the issues of dangerous condition and notice. At the hearing, appellants’ counsel related to the court the nature of the testimony from the rough transcript and notes. The trial court listened to the proffered deposition testimony but concluded it did not change the court’s assessment that “[w]hether or not there were leaves on the ground really doesn’t matter that much. There are going to be leaves on the ground whether it was cleaned or not.” The court denied the request for a continuance, explaining that “I’ve considered what you’ve told me as to the deposition language as being an accurate rendition, and I took that into consideration in making my ruling. [¶] . . . [¶] . . . That will preserve for you that issue on appeal.” In essence there was no need for a continuance because the trial court considered the deposition testimony, which we will do as well.
Chavez stated that on the day in question, the steps were wet and covered with leaves. The crew cleaned the steps off that morning. He left around 8:30 or 9:00 a.m. There were no leaves on the stairs at that time.
Lawrence Montoya, the recreation supervisor for the Prewitt Family Water Park, was notified of the fall and went to the scene. He observed that the concrete steps and sidewalks around the steps were wet and covered with leaves. Ms. Morton told him she fell down the concrete steps after slipping on the wet leaves.
The Mortons sued the City and Pacheco Brothers, alleging that respondents were negligent in the maintenance and care of the exterior stairway, which was in a dangerous condition. As well, they alleged a loss of consortium claim as to Mr. Morton. Respondents moved successfully for summary judgment. The trial court concluded that appellants failed “to raise triable issues on the elements of duty, breach of duty, and causation.” The court explained: “In this case, the duty of the City and through the contract with . . . Pacheco Brothers seems to be an executive decision as to the level of services to provide, and there’s nothing that shows me that the level of services that were contracted for was unreasonable. [¶] . . . There are going to be leaves on the ground whether it was cleaned or not.”
II. DISCUSSION
A. Standard of Review
Summary judgment in favor of a defendant is proper if (1) the defendant shows that one or more elements of a cause of action cannot be established or there is a complete defense to it; and (2) the plaintiff fails to meet his or her burden of showing the existence of a triable issue of material fact as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Because a summary judgment motion raises only questions of law, we independently review the trial court’s grant of summary judgment. (Rosse v. DeSoto Cab Co. (1995) 34 Cal.App.4th 1047, 1050.)
B. Summary Judgment As to the City
1. Governing Principles
Government Code section 835, enumerating the circumstances in which a public entity may be liable for injuries caused by a dangerous condition of public property, is the defining statute for purposes of setting forth the liability of public entities as property owners. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1132.) Pursuant to section 835, a public entity such as the City is liable for an injury caused by a dangerous condition of its property where that property was (1) in such a condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) such condition created a reasonably foreseeable risk of the kind of injury which occurred; and (4) either the public entity (a) negligently or wrongly created the condition or (b) had notice of the condition for a sufficient time to protect against the danger. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129-1130.)
Unless otherwise noted, all further statutory references are to the Government Code.
Thus, under section 835, a public entity must maintain its property, including exterior stairs, in a condition that does not create a hazard to foreseeable users. (See Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 75 [duty of county to so maintain its sidewalks].) A “dangerous condition” of public property is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).) To allege a dangerous condition, a plaintiff need only show that the condition “ ‘creates a substantial risk of harm when used with due care by the public generally . . . .’ [Citation.]” (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 7.) Ordinarily, the existence of a dangerous condition is a question of fact, but it can be decided as a matter of law if reasonable minds can reach only one conclusion. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.) Section 830.2 tells us that a condition is not dangerous when, as a matter of law, the evidence most favorable to the plaintiff establishes that the risk created by the condition is “of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property . . . was used with due care . . . .”
Section 835.4 provides a defense to a dangerous condition suit. It provides that the public entity escapes section 835 liability for injury caused by a dangerous condition of its property if the entity establishes that (1) the wrongful act or omission creating the dangerous condition was reasonable (no liability under § 835, subd. (a)); or (2) the action it took to protect against the risk, or its failure to take such action, was reasonable (no liability under § 835, subd. (b)). As the California Law Revision Commission has explained: “Under this section, a public entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing that it would have been too costly and impractical for the public entity to have done anything else.” (Cal. Law Revision Com. com., reprinted at 32 West’s Ann. Gov. Code (1995 ed.) foll. § 835.4, p. 434.) Official comments of the California Law Revision Commission are declarative of the intent of the draftspersons of the code as well as the legislators who subsequently enacted it, and hence their comments are persuasive. (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th at p. 148.)
2. Analysis
In its written decision, the trial court concluded that appellants had not raised triable issues on the elements of duty, breach and causation.
First, without question section 835 imposes a duty on the City not to maintain its property in a “ ‘dangerous condition.’ ” (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1134.) If the condition of the stairs did constitute a dangerous condition, appellants sustained their burden of showing evidence of causation by the fact and nature of the accident.
The questions remain whether the condition of the stairs constituted a dangerous condition of public property, and whether appellants raised a triable issue as to section 835 liability, i.e., a wrongful act or notice of the condition. We cannot say that reasonable minds could reach but one conclusion on the dangerous condition issue, namely that exterior stairs covered with wet leaves in a park frequented by parents and children does not constitute a dangerous condition.
Respondents rely on Burnett v. City of San Diego (1954) 127 Cal.App.2d 191 (Burnett) to urge that this conclusion is warranted. Burnett involved a slip and fall on the outdoor stairway of a city-owned building that was jointly maintained by the city and an arts organization. The stairway had been swept the afternoon of the accident but there were leaves and eucalyptus pods at the time of the fall. It was rainy and the stairs were wet. Around 7:00 p.m. the stairway lights were not lit. The plaintiff stepped on “ ‘something slippery’ ” and fell. (Id. at pp. 193-194.) He claimed that the city failed properly to maintain the stairway “by permitting arboreal litter to remain on the steps at a time when [he] was invited to use them.” (Id. at p. 196.) The trial court held: “The construction and continued use of an outside stairway, upon which leaves and tree droppings will naturally fall, standing alone, cannot be held sufficient to impose liability upon a city under the provisions of the Public Liability Act. With respect to the matter of maintenance the undisputed evidence is that these steps were swept daily and had been swept that afternoon. Under the statute, a city could not reasonably be required to keep a man there at all times when the stairway might be used, to sweep up each leaf as it fell. If a dangerous condition in fact existed at this time there is an entire absence of any evidence that the city had knowledge or notice of such fact, or that it had had a reasonable time within which to remedy the condition or take steps to protect the public.” (Id. at p. 196.) In other words, public stairs with arboreal litter in and of themselves are not a dangerous condition, the city fulfilled its maintenance obligation with daily sweeping (i.e., it took action “reasonably necessary to protect the public” within the meaning of then-extant statute), and, if the condition nonetheless had thereafter become dangerous, the city had no notice of the danger.
The court attributed this lapse to the arts organization, not the city. (Burnett, supra, 127 Cal.App.2d at pp. 196-197.)
This case predates the California Tort Claims Act, section 810 et seq., enacted in 1963. (Stats 1963, ch. 1681, § 1, pp. 3266-3284.) At issue in Burnett was the Public Liability Act, which provided for liability for injuries resulting from the defective or dangerous condition of public property if the entity had knowledge or notice of the condition and failed to remedy the same, or take action reasonably necessary to protect the public, within a reasonable time after notice or knowledge. (Burnett, supra, 127 Cal.App.2d at p. 196.)
Unlike Burnett, here there is a conflict in the evidence concerning whether the stairs were swept prior to the accident. According to Ms. Morton and Montoya, the stairs were covered with wet leaves at the time of the accident. Montoya received notice of the fall at 8:40 a.m. On the other hand, Chavez testified that the crew cleaned the stairs daily, before 8:00 a.m., and they were clean when he left around 8:30 or 9:00 a.m. A reasonable inference from the testimony of Ms. Morton and Montoya is that, with a light rain, leaves would not have piled up to the extent evident by 8:30 or 8:40 a.m. if they had been swept shortly before that time.
And unlike Burnett, there is evidence of notice of the condition within sufficient time to act. On this matter, the testimony of Chavez and Ms. Morton provide an inference that the landscaping crew had notice of the condition on the stairs. Cruz testified that he and the crew arrived at the park around 7:15 a.m. on December 7, 2004, he observed that the stairs were wet and covered with leaves, and he was familiar with the condition of wet leaves accumulating on the stairs. Ms. Morton observed a landscaper she believed worked with Pacheco Brothers very close to the stairs when she fell. The only reasonable inference from the evidence is that the landscaper was a member of the Pacheco Brothers crew; there is no evidence of other landscapers maintaining the property. Although Pacheco Brothers contracted to maintain the premises, the City does not receive shelter from liability for the acts or omissions of its contractor because it has a nondelegable duty to maintain its property, including the stairs and sidewalks around the park, in a condition that does not create a hazard to foreseeable users. (See § 815.4; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-251, 253, overruled on other grounds in Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.)
In its oral remarks, the trial court revealed its conclusion that as a matter of law, the City reasonably maintained the premises in question by contracting with Pacheco Brothers for the level of services set forth within the contract, i.e., “polic[ing]” hard surfaces such as sidewalks at least three times a week, with a thorough cleaning once a week, and blowing, vacuuming or sweeping leaf litter and other debris on an as-needed basis, particularly in the fall. This conclusion goes to the City’s defense under section 835.4—which it pled—that it was acting reasonably with respect to the maintenance of its property by putting the landscape maintenance contract in place.
However, the paper contract is not definitive of the reasonableness of the City’s action because here Chavez’s testimony in effect showed how the clause calling for blowing/vacuuming/sweeping of hard surfaces “on an as-needed basis (most often in fall months)” was being interpreted and implemented. Chavez testified that during the month of December, the parking lot and entrance area to the facilities were cleaned daily, with instructions to complete that job before 8:00 a.m. He personally was aware of the accumulation of wet leaves on the exterior stairs, the reality that the leaves are slippery when wet, and the fact that at 8:00 a.m. in the morning “all the people arrive,” including parents and their preschoolers. Chavez’s testimony was sufficient to raise a triable issue of material fact as to the City’s section 835 liability and its section 835.4 defense.
C. Summary Judgment as to Pacheco Brothers
Pacheco Brothers had a contract with the City to perform landscaping services at the Prewitt Family Water Park and other places. Chavez testified that the crew had been instructed to clean the steps off on a daily basis before 8:00 a.m. when people begin arriving in the park, so accidents do not occur. The open issue is whether the steps were swept before 8:00 a.m., per instructions. While the duty to prevent the development of a dangerous condition of public property is the City’s duty which it cannot delegate, Pacheco Brothers did assume contractual responsibility for maintaining the parks. A failure of the crew to adhere to a particular schedule or sequencing of tasks designed to protect early morning patrons accessing the facilities could potentially subject the company to joint and several liability.
III. DISPOSITION
The judgment is reversed as to the City and to Pacheco Brothers.
We concur: Ruvolo, P.J., Sepulveda, J.