Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Robert A. Dukes, Judge, Super. Ct. No. KC047730R.
Law Offices of Mann & Elias and Scott Mann for Plaintiff and Appellant.
Mark Schreiber and Rosaline Ayoub for Defendant and Respondent.
WOODS, Acting P.J.
SUMMARY
This is an appeal from the trial court’s grant of the defendant’s motion for nonsuit. We reverse.
FACTUAL AND PROCEDURAL SYNOPSIS
Laura Vonderluhe regularly rode the bus to her job as a janitor with the Department of Water and Power. On the morning of January 20, 2005, as she was walking toward the kiosk at the Puente Avenue stop, she saw a Foothill Transit bus pull past the kiosk and stop in front of the Foothill Transit bus stop sign. In the past, the bus had pulled away as she approached so she hurried to get on the bus, but as she walked through the open kiosk area, she tripped on an exposed beam on the far side of the kiosk (the side closer to the bus stop sign) and fell to the ground.
The bus driver got out and asked Vonderluhe if she needed help. Vonderluhe’s husband had given her a ride to the location on his motorcycle and saw what had happened. He told the driver he would take her to the hospital, and the driver left. Vonderluhe was in a lot of pain. She was treated for a fractured right shoulder.
Vonderluhe filed a complaint against Foothill Transit (and the City of Baldwin Park which is not a party to this appeal), asserting a premises liability cause of action. In the attachment to her form complaint, she stated: “On . . . January 20, 2005[,] plaintiff was injured on the following premises in the following fashion (description of premises and circumstances of injury): Bus Station Kiosk in the Fwy. 10 at the ramp of La Puente Ave. in the City of Baldwin Park, CA 91706[.] [¶] Defendants so negligently and carelessly owned, operated, maintained, inspected, repaired, supervised and warned of the condition of the above premises, so as to cause a dangerous and hazardous condition[] which caused Plaintiff to trip and fall causing injury and damages . . . .”
Foothill Transit answered, the parties conducted discovery and the matter proceeded to jury trial. In addition to the testimony summarized above, there was evidence of the following facts: The beam that caused Vonderluhe’s fall had once served as the base of a frame for a Plexiglas panel with a poster board advertisement, but the Plexiglas panel had “long since been broken out” and was never replaced. Only the beam remained in the opening at a height 8 3/4 inches off the ground.
Vonderluhe had tripped on the same exposed beam before (in 1997), breaking her finger. At that time, she filed a claim with the City and received some compensation.
Foothill Transit is a joint powers agency; by agreement, 21 member cities and the County of Los Angeles act and serve as a public agency. Foothill Transit is a public agency established to provide public transit for the San Gabriel and Pomona Valleys. These services are provided through a private contractor (First Transit) which provides the operators and mechanics to run the bus service.
Foothill Transit did not own the stop where Vonderluhe fell. The state of California (Cal Trans) built the stop; pursuant to an agreement between the Southern California Rapid Transit District and Cal Trans, Cal Trans was to maintain the stop and the shelter (kiosk).
Foothill Transit had a bus stop enhancement program, a grant program which provides cities and counties with funds for enhancements such as bus shelters; no funds were requested by Cal Trans for the stop at issue.
Foothill Transit contracted with Veolia Transportation, a private transportation provider, to provide management and operational services. According to Veolia Transportation’s chief operating officer (Kevin McDonald), from passengers’ and vendors’ points of view, there was no practical difference between Veolia and Foothill Transit.
Foothill Transit (through Veolia Transportation) painted the kiosk where Vonderluhe fell. Foothill Transit had requested that Cal Trans paint it, but when nothing happened, Foothill Transit had it painted without seeking permission. Pursuant to “the management portion of the contract [with] Foothill Transit,” Veolia Transportation “clean[ed] the bus stops and install[ed] the bus stop signs.” Cleaning the location included “power wash[ing]” and picking up trash as needed. According to the testimony of Aaron Lim, signage and distribution supervisor with Veolia Transportation, employees were to report any “hazard” at a bus shelter constituting an “immediate danger where someone can have physical harm.” If there were “jagged edges,” for example, staff placed caution tape, but no such action was taken at the location where Vonderluhe fell. Other locations did not have an exposed cross beam like the one where Vonderluhe fell.
When a car collided with a bus shelter as had happened in the past, Veolia Transportation “usually” contacted the city or county where the shelter was located, but also used caution tape.
Foothill Transit was a common carrier, and the bus stops provide a benefit to Foothill Transit and its customers. According to McDonald (Veolia Transportation’s chief operating officer), “[M]aking sure that our customers can board and disembark safely, that would be our responsibility.” In its “bus book,” Foothill Transit directed the public to the kiosks at the bus stops and “knew” and “expected” its customers would use them.
The bus book stated: “When waiting for a bus, stand on the sidewalk or inside the bus shelter. . . .”
Brad Avrit was the president of a construction management and safety engineering firm. In his opinion, the way the stop was laid out and operated was unsafe because of how it was open on one side but had a bar low to the ground on the other side. When a bus pulled up at this particular stop, anyone waiting for the bus would have to travel past or through this “trip hazard.” The situation was particularly hazardous because bus riders’ attention would be directed toward the driver and the bus itself, and not to the danger of the beam as it was so low to the ground.
The bar served no functional purpose to the structure of the bus shelter; the four posts supporting the roof structure were embedded in the ground so there was no need for lateral support. In fact, the absence of a beam on the initial side contributed to the danger because, having passed through the open side, passengers would assume there would be no beam near the ground on the other side approaching the Foothill Transit bus stop sign.
From a safety standpoint, the proper course of action was to eliminate the trip hazard. For example, the garbage can at the location easily could have been moved to block off the hazard. Alternatively, a piece of plywood could have been added to block off the exposed beam or a bar could have been added at 42 inches (the standard height for a guard rail) so it would be in people’s “range of vision.” As another “simpl[e]” option, the beam could just be cut off as it was no longer being used for advertising purposes. “At minimum, you’d have to warn against it. That’s really the least desirable option [i]f you can, for a nominal cost, eliminate the hazard.” Avrit also testified that Foothill Transit could have avoided the danger to its passengers by stopping its bus on the near side of the kiosk so bus patrons would not have to cross the side with the exposed beam.
Foothill Transit filed a motion for nonsuit or, in the alternative, for a directed verdict on the grounds that Vonderluhe had failed to establish Foothill Transit “owned or controlled the instrumentality that caused her injury” or that she “was ever accepted as a [Foothill Transit] passenger.” The trial court granted the motion for nonsuit and entered judgment in Foothill Transit’s favor.
Vonderluhe appeals.
DISCUSSION
“A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff’s evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, citation omitted.) “‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor . . . .”’” (Id. at pp. 838-839, citations omitted.)
“‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ [Citations.] [¶] Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ . . . .’ [Citations.] Only the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit.” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)
In its motion for nonsuit, Foothill Transit argued that Vonderluhe had failed to establish that it owned or controlled the instrumentality that caused her injury. Under Government Code section 835, a public entity is liable only for a dangerous condition of its own property. (All undesignated statutory references are to the Government Code.) However, subdivision (c) of section 830 specifies that “property of a public entity” and “public property” mean “real or personal property owned or controlled by the public entity . . . .” (Italics added.) “Government tort liability in California is entirely statutory,” but “[t]he exclusive sway of statutory rules does not foreclose the aid of common law tort doctrines and analogies in ascertaining and achieving imperfectly expressed statutory objectives.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831, citations omitted.) In the landlord-tenant context, for example, a tenant may be liable for an area outside the strict limits of his own tenancy if he assumes control over it. (Id. at p. 832.)
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.) (In its motion for nonsuit, Foothill Transit did not dispute that it had notice of the condition of the kiosk or that it constituted a dangerous condition.)
In Alcaraz v. Vece (1997) 14 Cal.4th 1149, the plaintiff was injured when he stepped into a utility meter box embedded in the lawn beside the sidewalk in front of the building in which he rented an apartment; he filed a complaint against the building’s owners, alleging they had actual notice that the cover to the utility box was broken or missing. (Id. at p. 1153.) The defendant building owners sought summary judgment, arguing they owed the plaintiff no duty as they did not own the meter box or the land on which it was located; the city owned the land. (Ibid.) In opposition, the plaintiff presented evidence that (1) prior to and at the time of his accident, the defendants maintained the entire lawn, including the city-owned strip, and (2) after his injury, the defendants constructed a fence that bordered the sidewalk and enclosed the entire lawn in front of the property, including the city-owned strip. (Id. at p. 1154.)
Our Supreme Court concluded: “From this evidence, a reasonable trier of fact could infer that defendants exercised control” over the city-owned land. (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1162.) “This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property . . . .” (Id. at p. 1167.) Nevertheless, “it cannot be doubted that such evidence is relevant on the issue of control.” (Ibid.) Furthermore, the Alcaraz court found, the fact the defendants constructed a fence around the city-owned strip of land “also is highly relevant. It is obvious that the act of enclosing property with a fence constitutes an exercise of control over that property.” (Ibid.) “Defendants’ maintenance of the lawn and construction of the fence could support a finding that defendants . . . exercised control” over the city-owned land. (Ibid.)
“‘[E]vidence of repairs, improvements, safety precautions, or like remedial or preventive measures taken after an injury may be admitted for the purpose of establishing that at the time of the accident, the defendant owned or controlled the place, thing, or activity which occasioned the injury, at least where ownership or control is controverted, and subject to other appropriate limitations.’” (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1168, citation omitted.)
Similarly, in this case, there was sufficient evidence from which a jury could conclude that Foothill Transit exercised control over the bus shelter where Vonderluhe fell. Notwithstanding the evidence that Cal Trans was supposed to maintain the shelter, Vonderluhe presented evidence that in fact Foothill Transit contracted with Veolia Transportation and, pursuant to this contract, Veolia Transportation cleaned the bus stops and installed bus stop signs. More particularly, according to Aaron Lim’s testimony, he supervised a crew charged with “ensur[ing] that the stop is clean” and “report[ing] any immediate danger.” Where there is “immediate danger,” he said, “we try to use caution tape.”
In addition, Foothill Transit (through Veolia Transportation) painted the kiosk without obtaining consent from Cal Trans. In its “bus book,” Foothill Transit directed its customers to use bus shelters and knew and expected Foothill Transit customers would use them. According to Veolia Transportation’s chief operating officer, it was responsible for making sure Foothill Transit customers could board and disembark safely.
Viewing the evidence in Vonderluhe’s favor, a reasonable inference was that Veolia Transportation performed systematic and routine maintenance activities at bus shelters used by Foothill Transit’s passengers (like the defendants’ lawn maintenance in Alcaraz)and, in addition, placed barriers to the public around bus stop hazards on its routes (similar to the Alcaraz defendants’ placement of fencing). Given these factors plus the evidence that Foothill had contracted with Veolia Transportation to field a crew to care for these stops, and the crew’s duties included reporting “immediate danger,” a reasonable jury could conclude that Foothill Transit exercised control over the kiosk where Vonderluhe was injured. Therefore, it was error to grant Foothill Transit’s motion for nonsuit on the ground it did not own or control the subject shelter as a matter of law.
Here, the barriers were of caution tape rather than fencing (as in Alcaraz)—arguably carrying a clearer message to the public to stay clear of a danger at the direction of an authority in charge.
Foothill Transit’s reliance on our decision in Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706 is misplaced. In that case, the plaintiff was injured in the defendant’s parking lot when an adjoining property owner’s sign affixed to that party’s wall fell on her. Without asking permission, the defendant had painted a “small portion of the . . . wall to cover graffiti” and had refurbished a different sign than the one causing plaintiff’s injury which advertised the defendant’s business. (Id. at pp. 1709, 1710.) There, we observed: “Plaintiff’s opening statement does not permit the inference that the appearance of the sign gave any indication that it was improperly fastened to the wall and was about to give way. [¶] It is certain that plaintiff was injured when the sign fell, but closeness of the connection between defendant’s conduct and plaintiff’s injuries is lacking.” (Id. at pp. 1713-1714.) Here, by contrast, there was no dispute raised in the trial court or in this appeal that Foothill Transit knew the kiosk was in a dangerous condition (and for a considerable period of time).
Notably, the defendants in Alcaraz relied on the Hamilton case as well. (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1157.) As the Alcaraz court explained, “Hamilton is distinguishable from the present case. Unlike Hamilton, the issue in the case before us is not whether defendants had a duty to discover a dangerous condition located on property they did not own. Plaintiff in the present case alleged that defendants had received actual notice of the defective condition of the meter box. The issue, therefore, is not whether defendants had a duty to inspect or repair the meter box, but whether, in light of their alleged knowledge of the dangerous condition of the meter box, they had a duty to persons entering the strip of land to protect them from, or warn them of, the hazard. . . . [¶] Hamilton would be more like the present case if the bowling alley had received actual notice that the sign hanging over its parking lot was secured to the wall improperly and in danger of falling. Under such circumstances, the bowling alley would have had a duty to persons using its parking lot to protect them from, or warn them of, the dangerous sign.” (Ibid., italics added.)
Hamilton is distinguishable from the facts of this case for the same reasons identified in Alcaraz—there was no dispute for purposes of the motion for nonsuit that Foothill Transit had notice of the dangerous condition of the shelter; rather, the issue was whether, in light of its alleged knowledge of the dangerous condition of the kiosk, Foothill Transit exercised control over the kiosk such that it could be held liable to Vonderluhe for the dangerous condition of this property. For the reasons we have explained, in light of the evidence presented on this issue, it was error to grant the motion for nonsuit on the ground it did not own or control the kiosk as a matter of law.
In light of this conclusion, we need not address Foothill Transit’s separate argument regarding whether Vonderluhe had been accepted as a passenger of a common carrier at the time of her injury (or Vonderluhe’s further argument that, leaving to one side the issue of Foothill Transit’s control of the kiosk, it was liable for a dangerous condition of adjacent property in any event). (See Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139.)
DISPOSITION
The judgment is reversed. Vonderluhe is awarded her costs of appeal.
We concur: ZELON, J. WILEY, J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.