Opinion
A156798
02-17-2021
SHAWN O'NEIL, Plaintiff and Appellant, v. CITY OF SOUTH SAN FRANCISCO, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17CIV00046)
Plaintiff Shawn O'Neil was injured when struck by a vehicle while walking in a crosswalk within the City of South San Francisco (the city). He appeals the summary judgment entered on his complaint against the city alleging that the crosswalk constituted a dangerous condition of public property under Government Code section 835. Like the trial court, we conclude that the city's approval of the design of the crosswalk as part of the city's "Downtown Revitalization Project" immunized it from liability in this case and that to the extent his complaint alleges the crosswalk was not properly maintained, we conclude that any inadequate maintenance was not, as matter of law, the proximate cause of plaintiff's injuries. Accordingly, we shall affirm the judgment.
All statutory references are to the Government Code unless otherwise noted.
Background
1. Statutory Background
Under section 835, a city may be held liable for a plaintiff's injuries if, among other elements, "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, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred." A " '[d]angerous condition' " is defined 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.) A dangerous condition proximately causes a plaintiff's injuries when the condition of the property is a "substantial factor" in bringing about their harm. (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal. App. 4th 1, 8-9.) Where a third party's negligence is a direct cause of the injury, a public entity may be held liable if " 'the dangerous condition of its property combines with a third party's negligent conduct to inflict injury.' " (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754 ["When a third party's conduct is the immediate cause of a plaintiff's harm, the question becomes whether the dangerous condition 'increased or intensified' the risk of injury from the third party's conduct."].)
Section 835 requires further that the plaintiff show either 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 Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
A public entity, however, is immune from liability "for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval . . . , if the trial or appellate court determines that there is any substantial evidence upon the basis of which . . . a reasonable legislative body or other body or employee could have approved the plan or design." (§ 830.6.) "The rationale behind design immunity 'is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.' [Citation.] ' "[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested." ' " (Cameron v. State of California (1972) 7 Cal.3d 318, 326.) To establish its immunity, a public entity must establish: (1) causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69.)
2. Factual and Procedural Background
On January 14, 2016, at approximately 7:10 p.m., plaintiff was crossing Grand Avenue within the northern portion of an uncontrolled crosswalk near Walnut Street when he was struck by an automobile travelling westbound along Grand Avenue. The impact caused the plaintiff to sustain significant injuries. The parties agree that the driver was negligent in failing to yield to the plaintiff in the crosswalk.
Grand Avenue, at the site of the accident, is a two-way, east-west, two-lane roadway through the downtown core of the city. According to the city's civil engineering expert, "Both sides of the roadway are bordered by various commercial and civic land uses. A double yellow centerline separates the northbound and southbound travel lanes. Angled on-street parking is provided on both sides of the roadway. Sidewalks are provided on both sides of Grand Avenue. . . . [¶] Two marked crosswalks across Grand Avenue are present at its intersection with Walnut Avenue. The crosswalks are designated by two parallel light-colored concrete bands overlaid with white crosswalk markings and a decorative brick surface. The sidewalk area at the crosswalk is indented forming a 'bulb-out' that effectively reduces the width of Grand Avenue and the crossing distance for pedestrians to 28 or 29 feet. A pedestrian crossing warning sign is provided on Grand Avenue facing traffic approaching Walnut Avenue in each direction of Grand Avenue. Street lighting is provided on both sides of Grand Avenue near its intersection with Walnut Avenue."
Plaintiff's cause of action under section 835 alleges that the "crosswalk and uncontrolled intersection where this incident occurred, as well as the surrounding area, contained inadequate, defective, and improperly maintained striping and delineation of the crosswalk, inadequate, defective, and improperly maintained lighting and lighting obstructed by foliage, and/or inadequate, defective, and improperly maintain warnings, which, either independently, acting in concert with one another and/or other conditions, or based upon a totality of the circumstances, constituted one or more dangerous conditions of public property." The complaint alleges that "[t]he above factors, both individually and in combination, created a dangerous condition of public property and presented a substantial risk of injury to members of the general public, including Shawn O'Neil, who used the property, or adjacent property, with reasonable care, and in a reasonably foreseeable manner."
The city moved for summary judgment on the grounds that (1) plaintiff could not as a matter of law establish the existence of a dangerous condition of property or that the dangerous condition proximately caused plaintiff's injury and (2) that it is immune from liability for plaintiff's claim under section 830.6. After considering all of the proffered evidence in support and opposition, the court concluded that a triable issue of fact exists as to whether the crosswalk constituted a dangerous condition of property but that nonetheless the city was entitled to summary judgment because the crosswalk was not a proximate cause of plaintiff's injury. The court found further that under the undisputed material facts, the city is entitled to the defense of design immunity.
Following entry of judgment, plaintiff filed a motion for new trial based on newly obtained evidence. The court considered the evidence but again concluded the evidence did not raise a triable issue of fact as to causation. The court confirmed that the city is entitled to design immunity, noting that plaintiff had not offered evidence that "the matters that purportedly constituted a dangerous condition were not part of the approved designs."
Plaintiff timely filed a notice of appeal.
Discussion
1. Design Immunity
"Design immunity is an affirmative defense often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law. [Citation.] The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation.] The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence. [Citation.] We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted." (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940.)
Here, the city presented evidence that in 1979 the city council adopted Resolution No. 2-79, directing the city engineer to submit design plans and specifications for the proposed improvements to the downtown corridor, which included: "The improving of Grand Avenue from Airport Boulevard to Spruce Avenue by constructing decorative sidewalks and crosswalks, street furniture and kiosks, street trees and landscaping, landscaped center islands, bus stop facilities, street lighting facilities, utilities, storm drains and all necessary related facilities and structures, and the acquiring of necessary property for improvements." The Department of Public Services prepared and approved the design plans, which were then filed with the city clerk. Thereafter, the city council adopted Resolution No. 11-80, which approved the design plans for the construction of the Downtown Revitalization Project.
Insofar as plaintiff alleges a defect in the design of the intersection, including the decorative striping, traffic controls, and placement of trees, there is no dispute that these conditions were all part of the Downtown Revitalization Project. Plaintiff contends, however, that triable issues of fact exist as to whether the city approved the design plans and whether those plans were reasonable. Plaintiff argues, "while the city provided the trial court with copies of the resolutions, it did not provide the court with the plans that it actually approved. The plain language of the resolutions filed in support of the city's motion make clear that it simply approved of the plans and specifications suitable for calling for bids for the construction. It did not approve 'the design plans.' [¶] Moreover, although the city produced a set of plans in their summary-judgment evidence, the evidence that [plaintiff] included in his summary-judgment opposition reveals (at the very least) a triable issue of fact as to whether they were the ones that were actually approved. Section 6735 of the California Business and Professionals Code requires final plans to bear the signature and seal or stamp of the licensed engineer who approved them, and the date of signing or sealing. None of the plans produced by the city contain these requirements. Accordingly, under the present record, it would have been impossible for the trial court to know what the city council actually approved, much less conclude that the city conclusively established that its design was reasonable. This court, therefore, should conclude that the city did not meet its burden." In his reply, plaintiff adds that the deposition testimony of his expert witnesses was sufficient to raise a triable issue with regard to the reasonableness of the design of the intersection.
The city's immunity encompasses liability that would otherwise arise as the result of the accident having been caused in part by the city's alleged: "a. . . . [¶] b.[f]ailure to provide . . . adequate traffic control devices and warning signs alerting motorists to the presence of pedestrians and the crosswalk as they approached this intersection, including, but not limited to, using highly reflective signs, keeping warning signs free from obstruction by surrounding vegetation and/or trees, and using high visibility roadway markings; [¶] c. Failure to provide . . . adequate traffic control devices and warning signs alerting motorists to the crosswalk and the presence of pedestrians; [¶] d. Failure to restrict pedestrians, from crossing Grand Avenue at Walnut, and instead placing a crosswalk at this location that encourages pedestrians to cross at this location; [¶] e. Failure to post a clear and unambiguous speed limit; [¶] f. Failure to provide stop signs, or traffic lights at this intersection for Grand Avenue traffic; [¶] g. Failure to provide adequate lighting for the subject intersection, especially toward the northern side of Grand Avenue at the crosswalk where this incident occurred. . . . [¶] h. Failure to provide clear roadway markings and signs alerting motorists to the presence of pedestrians and this crosswalk, especially in light of the fact that it is located in a business district which is accompanied by a high volume of pedestrian traffic both during the day and at night; [¶] i. Failure to address the high speed of vehicles using Grand Avenue; [¶] j. Failure to provide . . . adequate signs, signals, 'active' warning devices, channelizers, pavement markings, and striping; [¶] k. Creating a confusing roadway area in terms of speed advisories, signage, and pavement markings that failed to adequately alert motorists to the crosswalk where this incident occurred and that pedestrians would be using this crosswalk, and failure to warn or redirect pedestrians away from this intersection."
Contrary to plaintiff's first argument, the undisputed evidence establishes that the city council approved the design plans for the Downtown Revitalization Project that are included in the record. Compliance with Business and Professions Code section 6735 is not a prerequisite to establishing design immunity under section 830.6 of the Government Code. (Bane v. State of California (1989) 208 Cal.App.3d 860, 868, disapproved on other grounds in Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 74, fn. 3.) As the court in Bane v. State of California recognized, "[w]hen design drawings are not signed . . . the public entity has a more difficult time demonstrating that the plans were 'approved.' Nevertheless, if the public entity can prove the requisite approval with [other sufficient evidence] the approval element of design immunity is met." (Id. at p. 869.)
Here, the record includes a declaration by the city's principal engineer authenticating the resolutions and the design plans. His declaration states: "On February 13, 1980, the design plans for the Downtown Revitalization Project No. ST-79-1A, were approved by the City of South San Francisco Department of Public Services (now called the Department of Public Works), as evidenced by the stamp and signature on the bottom right hand corner of page 1 of the plans. [¶] [] The city's custom and practice between 1980 to the present is to file plans approved by the Department of Public Works to the city clerk. [¶] [] I have access to all South San Francisco Department of Public Works records. I performed a diligent search and reasonable inquiry for design plans for Downtown Revitalization Project No. ST-79-1A and located the design plans dated February 13, 1980, and attached as exhibit 13 to the [declaration submitted in support of the city's motion for summary judgment.] Based on my knowledge of the city's custom and practice and record keeping system, these plans (stamped and approved by the Department of Public Services on February 13, 1980) are the plans filed with the city clerk in accordance with Resolution No. 2-79. No other approved plans for this project exist in the city's records." " '[A] detailed plan, drawn up by a competent engineering firm, and approved by the city council in the exercise of its discretionary authority, is certainly persuasive evidence . . . of prior approval . . . for purposes of the design immunity defense.' " (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526.)
The city's evidence also supported the reasonableness of the plans. "Ordinarily, the opinion of a civil engineer as to the reasonableness of a design constitutes 'any' substantial evidence sufficient to support a design immunity defense under section 830.6." (Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007, 1015, disapproved on other grounds in Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 74, fn. 3.) Likewise, approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187, disapproved on other grounds in Cornette v. Department of Transportation, supra, at p. 74, fn. 3; Ramirez v. City of Redondo Beach, supra, 192 Cal.App.3d at p. 526.) In Ramirez v. City of Redondo Beach, the court explained "we read section 830.6 to mean that as long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances. By deciding on a 'reasonableness' standard, the Legislature intended that government officials be given extensive leeway in their decisions concerning public property. [¶] A governmental entity, such as the City, is entitled to rely on what is apparently competent advice in making legislative decisions. The fact that on hindsight that advice may prove to have been flawed is not a basis for imposing liability on the governmental entity." (Id. at p. 525.) In that case, the city submitted evidence that the city's "engineer, along with the engineers and other officials of the county who were recognized as being competent in the design of highways, approved the design before it was adopted" by the city and testimony by an expert witness that the design was not dangerous. (Ibid.) The court concluded that just because "a paid expert witness for plaintiff, in hindsight, found that the design was defective, does not mean, ipso facto, that the design was unreasonably approved." (Ibid.; see also Compton v. City of Santee (1993) 12 Cal.App.4th 591, 596 ["[A]s long as there was any substantial basis on which a government official could have decided the design was reasonable, it is irrelevant that a contrary opinion might have been offered."].)
Here, the city department charged with designing the Downtown Revitalization Project drafted and approved the design plans before they were submitted to the city council for approval. In addition, the city's expert witness concurred that the design, as approved and implemented, was reasonable. As explained above, the fact that plaintiff's experts reached contrary conclusions is insufficient to defeat the city's showing of reasonableness. Accordingly, the trial court correctly determined that the city is entitled to design immunity for the for majority of plaintiff's claims.
The expert's declaration states: "The physical layout of Grand Avenue at and adjacent to the subject location including two travel lanes, on-street angled parking, sidewalks, bulb-outs, and marked crosswalk was constructed as part of Downtown Revitalization Project No. ST-79-1A. The plan for the Downtown Revitalization Project were approved by the City of South San Francisco Department of Public Services on February 13, 1980. The South San Francisco City Council approved the plans and specifications for the Downtown Revitalization Project with the adoption of Resolution Number 11-80 on February 13, 1980. Upon completion of this project, the physical layout of the subject location, including the marked crosswalks, was similar to conditions at the time of the subject collision. It is my professional opinion as a civil engineer and a traffic engineer that the decision to provide marked crosswalks and construct the Downtown Revitalization Project in accordance with the approved plan was reasonable and appropriate."
Plaintiff's complaint alleges that there is "a significant collision history, history of near-misses, and complaint history from residents in this area that was known or should have been known by the [city] to have been dangerous for pedestrians, especially at night" and that the city failed to "properly respond to the collision history in this area and complaints regarding auto-versus-pedestrian collision dangers." Although plaintiff did not argue in the trial court or in his appellate briefing that the city is no longer entitled to design immunity as a result of changed circumstances at the intersection, he did so in oral argument. "[T]o demonstrate loss of design immunity a plaintiff must establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings." (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 72.) While an increase in accidents, coupled with evidence of a change in the physical conditions might be sufficient defeat the city's immunity (see Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 61-62), no evidence of changed conditions was presented here. Specifically, with reference to the trees located at the intersection, plaintiff presented no evidence that their size or foliage at the time of the accident exceeded what was contemplated in the approved design of the intersection.
2. Deficient Maintenance
To the extent that plaintiff's complaint includes allegations of inadequate maintenance of the crosswalk, we agree with the trial court that the undisputed facts establish that inadequate maintenance was not a proximate cause of the accident. The complaint alleges the accident was caused in part by "improperly maintained striping and delineation of the crosswalk, . . . improperly maintained lighting and lighting obstructed by foliage, and . . . improperly maintained warnings."
The undisputed evidence establishes that the warning signs were in working order at the time of the accident. The city's expert reported that "standard signing and markings were provided to define the crosswalk at the subject location and warn drivers of the potential for pedestrian crossings at this location. The pedestrian crossing warning signs at the subject location are retroreflective, which reflect a vehicle's headlights back toward their source." While plaintiff's expert stated that "[t]he lighting was poor at the intersection and the bushes and trees provided obstructions to what street lighting was available," plaintiff proffered no evidence that the lighting differed from what was specified in the design of the intersection, or that the trees were not being properly maintained or that they obstructed the lighting due to poor maintenance. Finally, while the trial court found a triable issue of fact as to the condition of the crosswalk striping, the undisputed evidence established that the driver knew the location of the crosswalk, so that any deficiency in maintenance of the striping could not have been a substantial factor causing the accident.
At the time of the accident, the sun had set and the lighting was dim, but the city's expert opined that given the driver's speed and the lighting conditions and typical vehicle low beam headlights, the driver should have been able to perceive and react to plaintiff by braking and coming to a complete stop in time to avoid the accident.
We need not address plaintiff's argument that the trial court failed to properly consider the opinions proffered by his experts regarding whether the crosswalk constituted a dangerous condition of property. Contrary to plaintiff's statements at oral argument, the court did not strike the proffered expert declarations. The court sustained the city's objections on the ground that the evidence is not relevant. Insofar as the expert opinions relate to whether the design of the intersection constituted a dangerous condition, the evidence is irrelevant as the city is entitled to design immunity. The expert opinions are not relevant to whether any alleged inadequate maintenance of the crosswalk caused the accident. --------
Accordingly, the trial court did not err in granting the city's motion for summary judgment.
Disposition
The judgment is affirmed.
POLLAK, P. J. WE CONCUR: STREETER, J.
BROWN, J.