Filed 2/17/15 Killings-Rodriguez v. City of Los Angeles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ANGELA KILLINGS-RODRIGUEZ, a B248707
Minor, etc., et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC454711)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Jan A.
Pluim, Judge. Reversed.
Law Offices of Gary A. Dordick and Gary A. Dordick for Plaintiffs and
Appellants.
Michael N. Feuer, City Attorney, Amy Jo Field, Supervising City Attorney, and
Lisa S. Berger, Deputy City Attorney, for Defendant and Respondent.
——————————
Angela Killings-Rodriguez, a minor, by and through her guardian ad litem,
Claudia Rodriguez; Claudia Rodriguez, individually and as successor-in-interest to
Emely Aleman; and Jose Oscar Aleman, individually and as successor-in-interest to
Emely Aleman (collectively, plaintiffs), appeal from the judgment entered after the trial
court granted summary judgment in favor of the City of Los Angeles (City) in this action
for dangerous condition of public property pursuant to Government Code section 835.1
Plaintiffs contend that triable issues of material fact exist as to whether a dangerous
condition of public property contributed to the cause of the automobile-pedestrian
accident at an unsignaled intersection on Laurel Canyon Boulevard that killed Emely and
rendered Angela a quadriplegic. We find the trial court erred in granting summary
judgment because (1) triable issues of fact exist whether the subject intersection placed
children at risk on a regular and continual basis as configured because the City failed to
address the impact of nearby schools, retail shops, and the lack of gaps in traffic;
(2) Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124 (Mixon) does not
control this case because there is a confluence of City-caused factors that combine to
make the intersection a dangerous condition; and (3) the third party conduct of the driver
who hit the girls does not absolve the City of liability given the condition of the
intersection. Accordingly, we reverse.
BACKGROUND
On December 2, 2011, plaintiffs filed the operative second amended complaint
against the City alleging a cause of action for dangerous condition of public property
pursuant to section 835. According to the complaint, on November 2, 2010, about
7:20 p.m., Emely and Angela were crossing the street in a crosswalk at Laurel Canyon
Boulevard and Archwood Street in Los Angeles when they were struck by a 1997 Jeep
1 All further statutory references are to the Government Code unless otherwise
indicated.
2
Wrangler driven by defendant Ian Leiner.2 The accident killed Emely and rendered
Angela a quadriplegic.
At the time of the accident, Emely, then 10, and Angela, then 12, proceeded in a
marked crosswalk to cross from the southeast corner of Laurel Canyon Boulevard at
Archwood Street to the southwest corner.3 Laurel Canyon Boulevard, running north and
south, had two lanes of traffic in each direction. For southbound traffic, the pavement in
each lane had an advance warning indicating “SLOW SCHOOL XING.” Two school
crosswalk warning signs were at the crosswalk. The crosswalk itself was marked in a
ladder pattern.
As Emely and Angela proceeded in the crosswalk, three northbound motorists,
two in the traffic lanes and one in the left-hand-turn lane, stopped for the girls. A
southbound motorist in the second traffic lane, the one closest to the parking lane, saw
the crosswalk warning and also stopped for the girls. As he was slowing his vehicle to a
stop, the southbound motorist saw in his rearview mirror a Jeep, driven by Leiner, also
proceeding southbound on Laurel Canyon Boulevard, but in the number one lane of
traffic, closer to the center of the street. Leiner did not slow down or use his brakes.
Leiner was familiar with the intersection and knew there was a crosswalk at the
intersection. On the evening in question, he had an unobstructed view of the intersection
and crosswalk, and did not recall shadows over the crosswalk from trees, cars, buildings
or any other object. Leiner saw people on the corner, but did not think they were going to
cross. He was listening to a CD and did not like a particular song that had begun playing,
2 Plaintiffs also named as defendants the Los Angeles Unified School District, the
County of Los Angeles and Ian Leiner, the motorist who struck Emely and Angela. None
of those defendants is a party on this appeal. Only Leiner remains a defendant in the
action.
3 The police report and the photograph exhibits of the intersection indicate the
intersection only has one marked crosswalk, which is on the south side of the Archwood
Street intersection. The City’s separate statement of facts states it is on the north side of
the intersection, but the north side of the intersection did not contain a marked crosswalk.
3
and could not find the button to change the song and looked down to locate it. Leiner
passed the southbound vehicle stopped at the intersection and hit Emely and Angela.
1. The Operative Second Amended Complaint
Plaintiffs alleged for their first cause of action against the City that the intersection
constituted a dangerous condition of public property and the City knew that the
intersection was dangerous and had a substantial history of previous incidents of
pedestrians being struck and killed and a history of near hits/misses of pedestrians, but
the City allowed and continued to allow said intersection to be in a state of disrepair by
failing to provide adequate warnings and signs, failing to place any/sufficient traffic
controls, failing to properly mark the subject crosswalk, failing to maintain trees and
failing to provide adequate street lighting/illumination at the intersection for the
pedestrians causing limitations on visibility.
2. The City’s Summary Judgment Motion and Opposition
(a) The City’s Moving Papers
The City moved for summary judgment arguing that as a matter of law its property
was not in a dangerous condition so as to subject it to liability under section 835. The
City argued that the intersection was not dangerous because it was properly illuminated,
other drivers stopped for the girls, and Leiner stated that he did not see the girls but had
looked down to change his CD. According to the City, summary judgment was proper
under Mixon, supra, 207 Cal.App.4th 124, where no liability for a dangerous condition
existed as a matter of law for a child who was struck and injured by a motorist while
walking with his family in a marked crosswalk. The City submitted evidence in support
of the motion that included portions of the accident report, police photographs taken
approximately a week after the accident and excerpts of deposition testimony from Leiner
and two other motorists who had stopped at the crosswalk for Emely and Angela.4
4 Thetrial court erroneously overruled plaintiffs’ objections to much of this
evidence. Plaintiffs correctly argued the City’s evidence lacked adequate foundation,
lacked personal knowledge, lacked authenticity, and was based on inadmissible hearsay.
4
The City also submitted an expert declaration from a civil and traffic engineer
David Royer.5 Royer stated that he had reviewed the traffic collision report wherein
Leiner stated he had “clearly [seen] the crosswalk ahead and saw pedestrians standing on
the corner[, but] admitted he was momentarily distracted” while changing the CD. The
traffic report indicated the driver in the lane next to Leiner, who stopped for the girls,
could see the crosswalk from 300 feet away, and most of the witnesses said that the street
lighting at the intersection was operational at the time of the accident. Royer observed
the accident scene twice at night around the same time as the accident and once during
the day, and opined that “there were no physical obstructions [that] would reduce the
visibility for approaching motorists seeing the pedestrian crossing or for pedestrians
seeing the approaching vehicles.” For southbound traffic there was a warning stating,
“SLOW SCHOOL XING.”
(b) Plaintiffs’ Opposition
Plaintiffs opposed summary judgment, asserting that triable issues of material fact
existed as to whether the City’s property was a dangerous condition that caused the
accident. Plaintiffs maintained that the City had created dangerous insufficient traffic
gaps on Laurel Canyon Boulevard by installing and timing signal controls north and
south of the intersection where the accident occurred, the danger of which was
exacerbated by the painting of a crosswalk on only one side of the intersection as well as
poor lighting conditions caused by overgrown trees. In addition, according to plaintiffs, a
prior accident history at the intersection, as well as the City’s own studies performed in
connection with the intersection, constituted evidence of a dangerous condition that had
contributed to the accident.
Plaintiffs’ expert, Ed Ruzak,6 was the expert for California Department of
Transportation in Mixon, supra, 207 Cal.App.4th 124. According to Ruzak, “there are no
5 The trial court sustained plaintiffs’ objections to Royer’s supplemental
declaration.
6The trial court sustained the City’s objections to paragraphs 17, 25, 30, 31, 32,
and 35 of Ruzak’s declaration. Plaintiff has not raised error with respect to the trial
5
significant similarities between the roadway involved in the Mixon accident and the
intersection [that] is the subject of the instant matter . . . .” Ruzak opined that no
significant accident history had existed in Mixon but one did in this case, thus
demonstrating that the intersection at issue “constituted a dangerous condition of public
property making it unsafe for pedestrians to safely cross on November 2, 2010, and going
back at least to 2006.”
According to Ruzak, there were no similarities between Mixon, supra, 207
Cal.App.4th 124 and the intersection of Archwood and Laurel Canyon Boulevard.
Instead, the City created a dangerous condition that was a trap so that neither pedestrians
or motorists were able to apprehend the presence of each other at the intersection. Ruzak
based his opinion on numerous characteristics of the intersection, including insufficient
traffic gaps, inadequate crosswalk markings at the intersection, lack of a signal, the
presence of schools and retail businesses on opposite sides of the street, and a history of
previous accidents.
Ruzak’s declaration observed that the subject intersection “is located in an
extremely [dense] residential area close to three different schools,” two of which are
elementary schools and one of which is a middle school. “[T]here is a high concentration
of young school-aged children on the west side of Laurel Canyon. On the east side of
Laurel Canyon there exist numerous commercial businesses frequented by school-aged
children such as a 7-Eleven convenience store. According to the depositions, [Emely and
Angela] were traveling back across Laurel Canyon from the 7-Eleven convenience store
when the accident occurred.”
Ruzak referred to an attached document showing that the City was aware of the
large volume of traffic on Laurel Canyon Boulevard, which was designated a “‘Major
Highway,’” carrying 26,000 vehicles per day. Two years before the accident, the City’s
Traffic Engineer, Brian Gallagher, responding to public requests for a traffic signal at the
court’s ruling. Our opinion, therefore, relies on those portions of Ruzak’s declaration
deemed admissible in the trial court.
6
intersection, wrote to superiors requesting the installation of a traffic signal at the subject
intersection. Gallagher explained that the intersection met the City’s criteria for
installation of a traffic signal: “We now have a location where kids want to cross at a
marked crosswalk, but there are no available gaps in traffic for kids to cross there. Are
we able to get LAUSD to do a traffic signal here as mitigation or do I have to take out the
crosswalk and prohibit pedestrians from crossing. . . . ? I don’t want to have kids
crossing a major highway where there are inadequate gaps, especially where they could
cross at a signal a (long) block away in either direction.” As an alternative to installing a
signal, Gallagher recommended that the crosswalk be closed with a chain barrier and
pedestrian crossing prohibited; this could be done at minimal cost and in a single day’s
work.
The City had been notified by Carmen Perez-Flores who lived at the intersection
of Laurel Canyon and Archwood, as well as numerous other persons, of the significant
accident history of the intersection. Perez-Flores had witnessed numerous injuries and
accidents involving pedestrians at the intersection.
The City’s own traffic engineer, Brian Gallagher, reviewed and endorsed a study
conducted in 2008 in connection with the expansion of Bellingham Elementary School
that recommended a traffic signal be installed at the intersection of Archwood and Laurel
Canyon to ensure the safe and orderly movement of pedestrian and vehicular traffic.
Gallagher himself found insufficient gaps in traffic to permit school-aged children to
cross safely.
Ruzak noted the lack of traffic gaps at the intersection was created by the traffic
signal timing at the signalized intersections to the north and south of Archwood and
Laurel Canyon, at Vanowen and Kittridge. “Indeed, insufficient gaps in traffic is one of
the most dangerous conditions for pedestrians because “pedestrians normally wait for a
gap in traffic to cross, and over time, it is known to traffic engineers that pedestrians will
become impatient and attempt to cross with smaller gaps than are safe. . . . [The subject
intersection] require[d] pedestrians to ‘weave and slalom’ across the intersection in
between moving cars.”
7
The intersection of Archwood and Laurel Canyon had an accident history that
included 35 accidents, including five separate pedestrian accidents and two bicycle
accidents. An accident on January 30, 2009 involved two pedestrians who were hit by a
northbound vehicle on Laurel Canyon as they proceeded west at the intersection of
Archwood Street. There were at least 10 rear-end accidents because the intersection had
“inadequate gaps in traffic patterns [so that] some drivers will stop for pedestrians
standing on the curb, which is what occurred [in this case]. The high number of rear-end
accidents reflects that cars are not observing the stopped automobiles in the roadway,
which includes automobiles stopped for pedestrians attempting to cross Laurel Canyon.”
Plaintiffs’ expert Ruzak also maintained that the City’s decision to paint a
crosswalk on only the south side of the intersection rendered it a dangerous condition of
public property. The failure to paint a crosswalk on both sides of the intersection “makes
the existence of the crosswalk less visible.” Further, there was no reason to permit the
painting of a crosswalk on only one side of the intersection because there were also retail
shops on the north side which would have benefitted from a crosswalk. Indeed, the
City’s own traffic study noted that the intersection’s single crosswalk made the entrance
of the crosswalk less visible and observed the crosswalk should have been placed on the
north side of the intersection closer to the retail business and residential area.
In conclusion, Ruzak stated that “[w]hile it can always be argued in pedestrian
versus auto accidents that the automotive driver was inattentive, and it was the driver’s
inattentiveness that caused the accident, it is well known in engineering and roadway
safety that the design, construction and maintenance of intersections like Laurel Canyon
and Archwood must take into account and guard against the inattentive driver as much as
possible. Virtually every roadway accident involves an inattentive driver whether it be a
case involving the need for a guard rail, center divider or some type of traffic control
device. The obligation of [the City] is to know that drivers are sometimes inattentive and
to design, construct and maintain the roadway with this known fact in mind.” In this
case, the City failed to take any action despite its knowledge that pedestrians were being
hit by cars at this intersection. The intersection at issue created a trap configuration that
8
did not give enough warning to drivers or pedestrians of the presence of one another in
time to avoid a collision.
3. The Trial Court’s Ruling
Although our review is de novo, we observe that the trial court, in granting the
motion for summary judgment, found that under Mixon, supra, 207 Cal.App.4th 124,
there was no dangerous condition of public property. The trial court stated, “[t]he Mixon
court held that a condition is not dangerous merely because of a failure to provide
regulatory traffic control signals, and a public entity has no duty to provide street lights.
[Citation.] There is no evidence that the physical condition of the roadway created a
‘trap’ for motorists and pedestrians. [Citations.] Five motorists saw the crosswalk. Four
motorists actually stopped for the young girls. [Citation.]”
DISCUSSION
I. Standard of Review
A trial court must grant a summary judgment motion when no triable issue exists
as to any material fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We independently review the trial court’s decision,
“considering all of the evidence the parties offered in connection with the motion (except
that which the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown
that one or more elements of the cause of action, even if not separately pleaded, cannot be
established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to
meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc.
(2001) 26 Cal.4th 465, 476–477.) The moving party must demonstrate that under no
hypothesis is there a material issue of fact. (WYDA Associates v. Merner (1996) 42
Cal.App.4th 1702, 1709; Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 106.)
We review the trial court’s ruling, not its rationale. (Dammann v. Golden Gate Bridge,
Highway and Transportation District (2012) 212 Cal.App.4th 335, 340.)
9
Thus, to obtain summary judgment, the City was required to establish that
plaintiffs would be unable to produce any evidence at trial that could support the
conclusion by a reasonable person that a dangerous physical condition at the intersection
could have contributed to an inattentive driver like Leiner hitting school-aged children in
the crosswalk.
II. Triable Issues of Fact Exist Whether the Intersection Was a Dangerous
Condition of Public Property
A. Dangerous Conditions of Public Property
Under section 835, a public entity may be liable if it creates an injury-producing
dangerous condition on its property or if it fails to remedy a dangerous condition despite
having notice and sufficient time to protect against it. (Grenier v. City of Irwindale
(1997) 57 Cal.App.4th 931, 939.) Section 830 defines a “‘[d]angerous condition’” 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.” To constitute a
dangerous condition, an injured plaintiff need not prove the public “‘property was
actually being used with due care at the time of the injury, either by himself or by a third
party . . . .’” (Alexander v. State of California ex rel. Dept. of Transportation (1984) 159
Cal.App.3d 890, 899.) Indeed, “‘the state gains no immunity from liability simply
because, in a particular case, the dangerous condition of its property combines with a
third party’s negligent conduct to inflict injury.’” (Bonanno v. Central Contra Costa
Transit Authority (2003) 30 Cal.4th 139, 153, fn. 5.)
To recover in an action against a public entity under section 835, a plaintiff must
prove: “(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.” (Brenner v. City of El Cajon (2003) 113
Cal.App.4th 434, 439; § 835.)
10
The Law Revision Commission Comments that follow section 830 state that
“Where it is reasonably foreseeable that persons to whom a lower standard of care is
applicable—such as children—may be exposed to a substantial risk of injury from the
property, the public entity should be required to take reasonable precautions to protect
such persons from that risk. Thus, a public entity may be expected to fence a swimming
pool or fence or lock up a dangerous instrumentality if it is reasonably foreseeable that
small children may be injured if such precautions are not taken.” (§ 830, Cal. Law Rev.
Com. com., 32 West’s Ann. Gov. Code (2012 ed.) foll. § 830, pp. 6-7); accord Mathews
v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1385.)
To establish causation, a plaintiff must prove that the defendant’s conduct was a
“‘substantial factor’ in bringing about his or her harm. [Citations.]” (Bowman v. Wyatt
(2010) 186 Cal.App.4th 286, 312.) “That the location of a public improvement or, more
broadly, its relationship to its surroundings, may create dangers to users is by no means a
novel idea.” (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th 139,
149; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 750 (Cole).)
Further, third party negligence may create liability where the immediate cause of a
plaintiff’s injury is a third party’s negligence if some physical characteristic of the
property exposes its users to increased danger from third party negligence. “‘[P]ublic
liability lies under . . . section 835 only when a feature of the public property has
“increased or intensified” the danger to users from third party conduct.’ [Citation.]”
(Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348; see Morris v. State of
California (1979) 89 Cal.App.3d 962, 966, fn. omitted [“a condition of public property is
dangerous if it creates a substantial risk of harm when used with due care by the public
generally, as distinguished from [a] particular person charged as a concurrent
tortfeasor . . .”]; Cole, supra, 205 Cal.App.4th at p. 768 [“if the condition of its property
creates a substantial risk of injury even when the property is used with due care, the state
gains no immunity from liability simply because, in a particular case, the dangerous
condition of its property combines with a third party’s negligent conduct to inflict
injury”].)
11
To result in public entity liability, the dangerous condition of public property must
have “‘some causal relationship to the third party conduct that injures the plaintiff.’”
(Mixon, supra, 207 Cal.App.4th at p. 131.) However, the dangerous condition of public
property need not constitute the sole reason for the accident. A public entity cannot
establish an entitlement to summary judgment merely by showing that a third party’s
conduct was a cause of plaintiff’s injuries; rather, it must establish as a matter of law that
plaintiff would be unable to present evidence that any condition of the public property
where the accident occurred was also a substantial causative factor in bringing about her
or her injuries. (Cole, supra, 205 Cal.App.4th at p. 769.)
Under traditional tort principles, once a defendant’s conduct is found to have been
a cause in fact of the plaintiff’s injuries, the conduct of a third party will not bar liability
unless it operated as a superseding or supervening cause, so as to break the chain of legal
causation between the defendant’s conduct and the plaintiff’s injuries. (See Pedeferri v.
Seidner Enterprises (2013) 216 Cal.App.4th 359, 372.) The misconduct of a third party
will not ordinarily have this effect if the misconduct itself was foreseeable to the
defendant. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1087.)
Cases have held that the risk posed by intoxicated drivers to persons near a roadway may
be foreseeable in itself, so as to present a question of fact for the jury. (See Bloomberg v.
Interinsurance Exchange (1984) 162 Cal.App.3d 571, 576–577 [risk could be found
foreseeable where stranded motorist was struck by intoxicated driver]; Bigbee v. Pacific
Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58–59 [same, plaintiff struck while inside telephone
booth adjacent to roadway].)
B. Triable Issues of Fact Exist Whether the Conditions at the Intersection
Constituted a Dangerous Condition of Public Property
Plaintiffs contend that the trial court erred by granting summary judgment on the
ground of no dangerous condition as a matter of law because triable issues of material
fact exist based on the frequency of use by children, the presence of three schools,
shopping centers that are frequented by the school children in this residential
neighborhood, insufficient traffic gaps, combined with inadequate crosswalk painting at
12
the intersection, lack of traffic controls at this intersection when conditions require them,
as well as a prior history of accidents and studies of the intersection. We agree.
To support a finding of a dangerous condition of public property here, given the
proximity of the crosswalk to the nearby schools and the retail business, the crosswalk
into which Emely and Angela stepped had to present a serious risk of injury to those
children using it with due care, including school children using it to cross between their
schools and homes and the 7-Eleven and other stores adjacent to the intersection. The
level of “due care” the City had to expect of the children—the level of child behavior the
City had to foresee—was a lower level of care than that expected of adults.
In Mixon, supra, 207 Cal.App.4th 124, a motorist struck a child who was walking
with his father and siblings in a marked crosswalk. The crosswalk had no signal lights
and no streetlights. The father had paused at the intersection and waited for traffic to stop
before entering the crosswalk. One northbound car stopped, but a southbound truck
approached the crosswalk, failed to stop, and hit one of the children, severely injuring
him. (Id. at p. 129.) Mixon concluded the intersection did not constitute a dangerous
condition although it had poor lighting, no traffic signal, no pedestrian crossing warnings,
parallel line crosswalk markings instead of more visible zebra stripe markings, and a dip
in the grade of the intersection because none of those features, alone or in combination,
created a substantial risk of injury when the intersection “is used by pedestrians and
motorists with due care.” (Id. at p. 132.)
Mixon observed that a public entity had no duty to provide streetlights. “[A] prior
dangerous condition may require street lighting or other means to lessen the danger but
the absence of street lighting is itself not a dangerous condition.” (Mixon, supra, 207
Cal.App.4th at p. 133.) A public entity may be liable where a dangerous condition exists
for reasons other than or in addition to the failure to provide controls or markings and,
“[h]ere there are no additional features to combine with the lack of a traffic control signal
to make the . . . intersection dangerous.” (Id. at p. 135.) However, acknowledging that a
combination of factors could create a dangerous condition, rather than finding such
dangerous condition existed in the case before it because of the confluence of facts, the
13
Mixon court limited its analysis to the fact there had been no similar accidents at the
intersection. (Id. at p. 138.)
1. THE PHYSICAL SETTING OF THE INTERSECTION—THE TRAFFIC
GAPS, SCHOOLS, RETAIL SHOPS, AND PRESENCE OF CHILDREN—CONSTITUTED A
DANGEROUS CONDITION
Here, even if the City had no obligation to put in traffic controls at this
intersection, the intersection nonetheless constituted a dangerous condition of public
property. Assuming that the City’s painted crosswalk and crosswalk sign were adequate,
there were other salient characteristics of the intersection operating to transform it into a
dangerous condition. These features included the traffic gaps created by the signalized
intersections to the north and south of Archwood Street on Laurel Canyon, the children
frequenting the area from the three local schools, and the retail shops drawing those
children across the expanse of Laurel Canyon.
It is a logical fallacy to conclude that because Mixon found no liability where the
public entity had not provided any safety measures, then no entity could have liability
where it has provided some safety measures. The point is, as plaintiffs argue, that a
public entity can create a dangerous condition where in theory no affirmative act (such as
crosswalk markings, signals, warning signs) may have been required, yet those
affirmative acts may act together to diminish safety conditions substantially and thus
create liability for a public entity. Mixon, supra, 207 Cal.App.4th 124 does not preclude
this conclusion because, as noted, its holding is not based on the lack of confluence of
conditions, but on the fact there had been no accidents at the intersection, and Mixon thus
concluded that ergo, the intersection was safe. Further, as the Mixon court recognized, a
public entity cannot rely on safety measures already in existence when the public entity is
aware of a dangerous condition that nonetheless, in spite of the safety conditions, exists
on its roads. (Id. at p. 135.) Here, the record shows that there had been 35 accidents,
including five pedestrian accidents, at this intersection. Thus, Mixon is inapposite our
analysis here.
14
The crosswalk into which Emely and Angela last stepped presented a serious risk
of injury to school children like them, using it with due care to cross between their
schools and homes and the 7-Eleven and other stores adjacent to the intersection. The
level of “due care” the City had to expect of the children—the level of child behavior the
City had to foresee—was a lower level of care than that expected of adults. Also, the
City had to foresee that children, and even adults, would cross at times when the
inevitable inattentive or speeding driver was drifting or barreling by. Indeed, this is
exactly what happened the night of the accident, when Emely and Angela proceeded in
the crosswalk from the east side of Laurel Canyon, with its retail shops, to the west side
of the street and were hit by Leiner. Another very similar accident occurred
approximately eight months before when two pedestrians were hit in the same crosswalk
by a northbound car.
This environment—the presence of the schools, retail shops, and high volume of
traffic—required the City to do more than paint a crosswalk and put up crosswalk signs.
Thus, for example, although warning signs preceded the crosswalk in the direction Leiner
was traveling, and the crosswalk was indicated by signage and such conditions might
preclude liability, there were also other factors at work here to create a dangerous
condition: Plaintiffs’ expert established that (1) traffic gaps on the busy boulevard were
infrequent due the City’s signal control at the signalized intersections to the north and
south of Archwood Street, and (2) children were drawn to the retail stores across the
street from the school. Moreover, it may be inferred from Ruzak’s testimony about the
lack of gaps that the long distance between the traffic signals to the north and south of
Archwood Street and the crosswalk gives faster drivers a chance to build up speed and
pull ahead of slower drivers, thus creating a strung-out line of traffic without gaps. The
phenomenon is observable in highway driving, where drivers frequently become more
“strung out” as the distance they have gone increases. Conversely, if all drivers start
from a dead stop at a traffic signal and have only a short distance to go before they reach
another traffic light, the faster drivers will not have as much opportunity string
themselves out ahead of the slower drivers. This shorter distance, in turn would
15
significantly diminish the gap between the fast drivers and the slower drivers in reaching
the crosswalk. Indeed, the City’s own engineer recognized that “there are no available
gaps in traffic for kids to cross. . . . I don’t want to have kids crossing a major highway
where there are inadequate gaps.” Indeed, as Ruzak observed, “insufficient gaps in
traffic is one of the most dangerous conditions for pedestrians because “pedestrians
normally wait for a gap in traffic to cross, and over time, it is known to traffic engineers
that pedestrians will become impatient and attempt to cross with smaller gaps than are
safe. . . . [The subject intersection] require[d] pedestrians to ‘weave and slalom’ across
the intersection in between moving cars.”
2. THE INTERSECTION’S FEATURES ADDED UP TO A DANGEROUS
CONDITION
Further, factoring in the steps the City did take, the City’s actions were insufficient
to address the dangerous condition of the intersection; indeed, the City’s actions actually
increased the dangerousness of the intersection by painting in a crosswalk that signaled to
children that it was a safe place to cross when it was not a safe place—as recognized by
the City’s own traffic engineer. Further, considering all of the characteristics of the
intersection together, rather in isolation, demonstrates Mixon does not control this case.
First, the City created the inadequate gaps in traffic by signalizing the two
intersections to the north and south of Archwood. Laurel Canyon is a multi-lane, heavily
traveled roadway that, as the City’s engineer recognized, is akin to a “major highway.”
These inadequate gaps prompted children, and others, to attempt to cross the road when
cars were approaching the crosswalk, expecting the cars would lawfully yield to them,
rather than waiting until no cars were near. Further, the City put in one crosswalk on the
south side of the street, compelling children to believe that it was safe to cross the street.
The City engineer observed that the children wanted to cross at this crosswalk, but that
“there are no available gaps in traffic for kids to cross there” in the first instance. A
crosswalk existed, but there was no safe time to use it. This sole crosswalk also induced
drivers heading southbound to be inattentive to its existence because no corresponding
crosswalk existed on the north side of Laurel Canyon.
16
Further, all of the factors here—traffic gaps, heavy traffic, schools, children,
beguiling shops across the street, a single crosswalk, no signal—added up to an unsafe
crosswalk. The case before us is more like Cole, supra, 205 Cal.App.4th 749, where a
combination of factors added up to a dangerous condition. There, the town had notice of
the fact motorists frequently left the roadway to pass on the right left-turning cars and in
so doing entered a gravel parking area used by persons using an adjacent park. (Id. at
pp. 754–755.) The plaintiffs’ expert opined that a combination of factors created a
dangerous condition: physical characteristics of the roadway, traffic volume and speed,
lane and shoulder widths, and the parking angle of users of the park. Such features
“‘made just this type of collision more than simply foreseeable—it made such a collision
likely.’” (Id. at p. 761.) Cole rejected the argument that the conduct of a third party, the
intoxicated driver who caused the accident, constituted a superseding or supervening
cause because if such negligent conduct is foreseeable, then liability can attach. (Id. at
p. 770.)
This district’s opinion in Swaner v. City of Santa Monica (1984) 150 Cal.App.3d
789, and a number of cases discussed therein, are closely on point as well. In Swaner,
plaintiffs were lying on the beach near a public parking lot when a vehicle illegally drove
onto the beach and injured them. (Id. at pp. 795–796.) Plaintiffs argued that the public
entity’s failure to erect a barrier between the parking lot and the beach created a
dangerous condition of public property. (Id. at p. 796.) Using an analysis similar to that
in Cole, the court held that the fact that the driver was breaking the law and not using due
care did not prevent a finding of a dangerous condition of public property, in part because
the driver’s illegal and careless act was foreseeable to the public entity. (Id. at p. 804;
accord, Mathews v. State of California ex rel. Department of Transportation (1978) 82
Cal. App.3d 116, 122 [traffic signal stuck so one side was constantly red and one
constantly green was dangerous condition of public property even though plaintiff’s
injuries resulted from driver illegally proceeding without due care through red light, as it
was foreseeable a driver might do so]); Slapin v. Los Angeles International Airport
(1976) 65 Cal.App.3d 484, 488–489 [lack of lighting in parking lot was dangerous
17
condition of public property when plaintiff was criminally assaulted in parking lot and
criminal assault was foreseeable].)
While each of the salient features of the intersection here might not, without more,
constitute a dangerous condition, reasonable minds could disagree whether the
congruence of conditions at the intersection—lack of traffic gaps, multiple lanes of heavy
traffic in either direction, an unsignaled crosswalk, and the presence of schools on one
side of the intersection and retail shops on the other—together constituted a dangerous
condition, thus creating a triable issue of fact. (Mixon, supra, 207 Cal.App.4th at p. 137
[“a dangerous condition of public property may be based on a combination of factors”].)
Considering each factor in isolation led the trial court to apply disconnected rules of law
pertaining to the marking of crosswalks and the conduct of third party motorists and
overlook the panorama of conditions present. Thus, although if the relevant physical
factors of the intersection considered alone may not constitute a dangerous condition,
when considered in conjunction, they operate synergistically to create a hazard.
3. LEINER’S NEGLIGENT THIRD-PARTY CONDUCT DOES NOT, AS A
MATTER OF LAW, ABSOLVE THE CITY
Finally, the trial court placed undue emphasis on the fact the other cars traveling in
Leiner’s direction stopped for the girls. Leiner himself saw persons on the corner at the
crosswalk but did not believe they were about to cross the street; indeed, he might have
concluded given the lack of a crosswalk signal and the volume of traffic on the roadway
that the girls were waiting for a gap in the traffic and that the cars near him had stopped
because of traffic in their lanes, not because of pedestrians. Arguably, if there had been a
cross light at the intersection, Leiner would not have made such an assumption and
perhaps would not have looked down at his CD player. The configuration of the
intersection did not take into account the likely negligence of drivers who were
inattentive on a busy street with fast-moving cars and who would erroneously assume
children would not attempt to cross an unsignaled crosswalk when cars were coming.
The isolated conduct of four motorists is not a basis to inductively conclude that no
dangerous condition exists. Consider, for example, four motorists who stop at an
18
unmarked train track and one motorist who does not and is hit by a train. It would
probably not be argued that because the fact that four cars did not make the mistake of
the fifth, there is no dangerous condition. To engage in a counting game of how many
vehicles avoid a potentially dangerous condition as a determinant of whether any
dangerous condition exists is a logical fallacy. The import would be that there can only
be a dangerous condition where the majority of cars succumb to the condition. That state
of affairs would not be tolerable. In other words, just because some motorists avoid a
hazard does not mean it does not exist.
The fact that some drivers would be attentive, or would drive slowly and carefully
enough to stop at the crosswalk for the children, would not immunize the City from a
finding there was a dangerous condition of public property presented by the numerous
inattentive drivers reasonably expected to be speeding along such a major artery. The
City was obliged to create and maintain the intersection with this foreseeable risk in
mind.
Any finding that Leiner’s inattentiveness caused the accident is a factual finding
that Leiner was one hundred percent responsible and the condition of the property did not
contribute at all to its occurrence. Moreover, it constitutes a factual finding that Leiner’s
conduct “operated as a superseding or supervening cause, so as to break the chain of legal
causation between the City’s conduct and plaintiffs’ injuries.” (Cole, supra, 205
Cal.App.4th at pp. 769–770.) It is well-established that the misconduct of a third-party
driver like Leiner, or even one who is criminally under the influence of alcohol, “will not
ordinarily have this effect if the misconduct itself was foreseeable to the defendant. As is
noted above, courts have held that the risk posed, even by intoxicated drivers to persons
near a roadway may be foreseeable in itself, so as to present a question of fact for the
jury. (Ibid.)
Leiner’s familiarity with the intersection in general based upon his past trips
through the intersection is not relevant to whether the accident was solely caused by his
inattention, rather than by the configuration, location and surroundings of the
intersection. Instead, his split second of inattention highlights the fact that even being
19
familiar with the intersection, he was unable to apprehend the presence of pedestrians in
front of him at the time of the accident due to the dangerous condition of the intersection.
In short, his familiarity with the intersection does not mean it was not a dangerous
condition as a matter of law. Further, Leiner’s failure to stop due to inattentiveness likely
would not have occurred, according to Ruzak, if the City had installed a traffic light or
stop signs to address the lack of gaps created by the distant traffic lights. Indeed, the
accident itself would not have occurred if the City had at least listened to its own Traffic
Engineer and had erected a barrier to preclude unsafe crossing.
Finally, there is no evidence the girls themselves were not exercising due care
when using the crosswalk. Section 830.8 codifies the principle that the governmental
entity need not provide signage, but the Law Revision Commission notes make clear that
although section 830.8 “prevents the imposition of liability based on the failure to
provide traffic regulatory or warning signals or devices of a type not listed in Section
830.4, . . . liability may exist for failure to provide such a signal or device where the
condition constitutes a trap to a person using the street or highway with due care.”
(4 Cal. Law Rev. Com. Rep. (1963) 801.)
In light of this authority, nothing stated in Mixon, supra, 207 Cal.App.4th 124
should be read to suggest contrary to the foregoing precedent that no dangerous condition
of public property can be found when a third party’s foreseeable lack of due care causes
injury.
CONCLUSION
To justify affirming the trial court’s ruling on defendant’s motion for summary
judgment, this court would have to conclude that reasonable minds can come only to the
conclusion that that plaintiffs will be unable to establish at trial that there existed a
dangerous condition of public property that would have been expected to contribute, even
in small measure, to an accident of this type. We find that triable issues of fact exist here.
Therefore we reverse.
20
DISPOSITION
The judgment is reversed. Plaintiffs are entitled to recover their costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J.
I concur:
MILLER, J.*
* Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
21
Rothschild, P. J., dissenting:
Two girls were walking across the street in a crosswalk at an intersection on
Laurel Canyon Boulevard at 7:20 p.m. on November 2, 2010. Four cars stopped to
let them cross. The driver of a fifth car saw the girls standing on the corner of the
intersection but failed to stop for them in the crosswalk, killing one girl and rendering
the other a paraplegic. Of course, the driver was liable, but the question here is whether
any evidence exists that the City might also be liable. I agree with the trial court that
the plaintiffs did not raise a triable issue of material fact on the question of the City’s
statutory liability. The court properly granted summary judgment for the City, and
I therefore respectfully dissent from the majority opinion.
The majority concludes that summary judgment was improper because of triable
issues of material fact as to whether a dangerous condition of public property existed
at the time of the tragic automobile-pedestrian accident. I believe that, based on the
statutory scheme limiting liability for a dangerous condition of public property, the
well-established case law interpreting the statutes, and the undisputed facts presented on
summary judgment, no dangerous condition of public property existed as a matter of law.
Several important legal principles govern this case. First, public entity liability for
an act or omission is governed exclusively by statute. (Gov. Code, § 815, subd. (a).)1
Section 835 is the sole statutory basis for imposing liability on a public entity for the
condition of its property. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347
(Cerna).) Under that provision, “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
1
Statutory references are to the Government Code.
notice of the dangerous condition . . . a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.”
Second, section 830, subdivision (a), limits a “‘[d]angerous condition’” to “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.” “A plaintiff’s
allegations, and ultimately the evidence, must establish a physical deficiency in the
property itself. [Citations.] A dangerous condition exists when public property ‘is
physically damaged, deteriorated, or defective in such a way as to foreseeably endanger
those using the property itself,’ or possesses physical characteristics in its design,
location, features or relationship to its surroundings that endanger users. [Citation.]”
(Cerna, supra, 161 Cal.App.4th at pp. 1347-1348.)
Third, with respect to third party negligence, “‘[p]ublic liability lies under . . .
section 835 only when a feature of the public property has “increased or intensified” the
danger to users from third party conduct.’ [Citation].” (Cerna, supra, 161 Cal.App.4th
at p. 1348.) Consequently, “[a] public entity may be liable for a dangerous condition of
public property even where the immediate cause of a plaintiff’s injury is a third party’s
negligence if some physical characteristic of the property exposes its users to increased
danger from third party negligence. [Citation.] ‘But it is insufficient to show only
harmful third party conduct, like the conduct of a motorist. “‘[T]hird party conduct, by
itself, unrelated to the condition of the property, does not constitute a “dangerous
condition” for which a public entity may be held liable.’” [Citation.] There must be a
defect in the physical condition of the property and that defect must have some causal
relationship to the third party conduct that injures the plaintiff. [Citation.]’ [Citation.]”
(Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069-1070
(Salas).) “With respect to public streets, courts have observed ‘any property can be
dangerous if used in a sufficiently improper manner. For this reason, a public entity
is only required to provide roads that are safe for reasonably foreseeable careful use.
[Citation.] “If [] it can be shown that the property is safe when used with due care and
2
that a risk of harm is created only when foreseeable users fail to exercise due care,
then such property is not ‘dangerous’”’” under the statutory definition. (Sun v. City of
Oakland (2008) 166 Cal.App.4th 1177, 1183 (Sun).)
Finally, “[t]he existence of a dangerous condition is ordinarily a question of
fact but ‘can be decided as a matter of law if reasonable minds can come to only one
conclusion.’ [Citation.]” (Cerna, supra, 161 Cal.App.4th at p. 1347.) Thus, under
section 830.2, “[a] condition is not . . . dangerous . . . if the trial or appellate court,
viewing the evidence most favorably to the plaintiff, determines as a matter of law that
the risk created by the condition was 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 or adjacent property was
used with due care in a manner in which it was reasonably foreseeable that it would be
used.” This provision, “while ‘[t]echnically . . . unnecessary,’” “‘emphasize[s] that the
courts are required to determine that there is evidence from which a reasonable person
could conclude that a substantial, as opposed to a possible, risk is involved before they
may permit the jury to find that a condition is dangerous.’ [Citation.]” (Salas, supra,
198 Cal.App.4th at p. 1069, fn. 4.)
Application of these four legal principals to the undisputed facts on summary
judgment demonstrates as a matter of law no dangerous condition of public property at
the time of the accident. Considering only the evidence on summary judgment to
which plaintiffs did not object, the undisputed facts show that, on November 2, 2010,
at approximately 7:20 p.m., Emely, then 10, and Angela, then 12, proceeded in a
marked crosswalk to cross from the southeast corner of Laurel Canyon Boulevard at
Archwood Street to the southwest corner. Laurel Canyon Boulevard, running north
and south, had two lanes of traffic as well as a left turn lane in each direction. For
southbound traffic, the pavement in each through lane had an advance warning indicating
“SLOW SCHOOL XING.” Two school crosswalk warning signs were at the crosswalk.
The crosswalk itself was marked in a ladder pattern, with clearly visible lines in good
repair. On the night of the accident, the intersection was illuminated with four
3
intersectional street lights, one of which was directly over the crosswalk. Three corners
at the intersection had shopping centers with illuminated parking lots.
As Emely and Angela proceeded in the crosswalk, three northbound motorists,
two in the traffic lanes and one in the left-hand-turn lane, stopped for the girls. A
southbound motorist in the second traffic lane, the one closest to the parking lane, saw
the crosswalk warning and also stopped for the girls. As he was slowing his vehicle to
a stop, the southbound motorist saw in his rearview mirror a Jeep, also proceeding
southbound on Laurel Canyon Boulevard, but in the number one lane of traffic, closer to
the center of the street. The motorist in the Jeep, which was Leiner, did not slow down or
use his breaks. Leiner was familiar with the intersection and knew there was a crosswalk
at the intersection. While driving, he had an unobstructed view of the intersection and
crosswalk. He did not recall shadows over the crosswalk from trees, cars, buildings
or any other object. He saw the crosswalk and people on the corner. He was listening
to a CD and looked down to locate the button to change the song. Leiner passed the
southbound vehicle stopping at the intersection and hit Emely and Angela. As a result of
the accident, Emely died and Angela was rendered a quadriplegic.
These undisputed facts demonstrate as a matter of law no dangerous condition of
public property at the time of the accident. Warning signs preceded the crosswalk in the
direction Leiner was traveling, and the crosswalk was indicated by signage, marked
and illuminated. Four motorists stopped for the girls to cross the street. Leiner, with
an unobstructed view, saw the crosswalk and checked for pedestrians, noticing people
standing on the corner. None of the cars that had stopped constituted an impediment
to his seeing the girls in the crosswalk and stopping for them. The accident occurred
because Leiner looked down to change a track on his CD, not because of any physical
defect in the condition of the intersection. Given a motorist traveling in the same
direction as Leiner stopped at the crosswalk, “a reasonably careful motorist would have
had no difficulty seeing [the] pedestrian[s] (or in seeing a car that was stopped for [the]
pedestrian[s]) and stopping, which further supports the conclusion that the configuration
of the subject crosswalk did not create a substantial risk of injury when used with due
4
care.” (Sun, supra, 166 Cal.App.4th at p. 1190 [summary judgment for city based on no
dangerous condition when evidence that another driver stopped for pedestrian supported
conclusion that pedestrians crossing at intersection were visible from a block away and
no physical impediments associated with the intersection would prevent a driver from
seeing and stopping for pedestrians].) Because the intersection was “safe for reasonably
foreseeable careful use,” and a risk of harm was created only when Leiner failed to
exercise due care, the statutes preclude liability for a dangerous condition of public
property. (Id. at p. 1183.)
To reach a contrary conclusion, the majority agrees with plaintiffs, based on their
expert’s declaration, that “triable issues of material fact exist based on the frequency of
use by children, the presence of three schools, shopping centers that are frequented by the
school children in this residential neighborhood, insufficient traffic gaps, combined
with inadequate crosswalk painting at the intersection, lack of traffic controls at this
intersection when conditions require them, as well as a prior history of accidents and
studies of the intersection.” (Maj. opn., at pp. 12-13.) The majority is correct that “a
dangerous condition of public property may be based on a combination of factors.”
(Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 137 (Mixon).)
Nevertheless, the factors themselves must be analyzed individually to determine whether
they have validity under the circumstances of a particular case so that combined they
create a triable issue as to a dangerous condition of public property. (Antenor v. City of
Los Angeles (1985) 174 Cal.App.3d 477, 484 [“if each of the [physical factors identified
by plaintiffs] has a zero danger factor, it cannot be said that any alchemist’s process will
create one for the whole”].) Here, an analysis of the factors identified by plaintiffs’
expert, individually or in combination, establishes summary judgment was proper.
Initially, the majority identifies that a crosswalk was painted on only the south
side of the intersection to support a triable issue of material fact on dangerousness.
That reliance is faulty because the crosswalk painting on only the south side of the
intersection, where the girls were crossing, although mentioned by plaintiffs’ expert,
undisputedly did not contribute to the accident. An expert must account for the
5
undisputed facts and cannot create a triable issue on summary judgment based on
opinion contrary to those facts. (Miranda v. Bomel Construction Co., Inc. (2010)
187 Cal.App.4th 1326, 1337 [opinion rejected on summary judgment because expert
failed to account for undisputed facts]; McKray v. State of California (1977)
74 Cal.App.3d 59, 63 [expert could not defeat summary judgment based on opinion
contrary to undisputed fact].) Here, as noted by the majority, plaintiffs’ expert said
that the failure to paint a crosswalk on both the north and south sides of the intersection
“makes the existence of the crosswalk less visible.” Under the undisputed facts,
however, Leiner did not need more of an indication that there was a crosswalk on the
south side of the intersection. He was familiar with the intersection, knew there was a
crosswalk and before the accident saw it along with the girls on the corner. Thus, the
lack of a painted crosswalk on the north side of the intersection under the undisputed
facts cannot support the defeat of summary judgment.2
The majority relies heavily on plaintiffs’ expert’s opinion of lack of traffic gaps
to support its reversal of summary judgment. I disagree. Failure to create traffic gaps
does not constitute “a physical deficiency in the property itself.” (Cerna, supra,
161 Cal.App.4th at p. 1347.) It is well established that “volume and speed of vehicular
traffic in combination with heavy pedestrian use” do not constitute a dangerous
condition; a physical defect must create a substantial risk of injury. (Sun, supra,
166 Cal.App.4th at p. 1189; see also Brenner v. City of El Cajon (2003) 113 Cal.App.4th
434, 440 (Brenner) [“volume and speed of vehicular traffic . . . would not permit a
finding of a dangerous condition, at least in the absence of some additional allegation that
the physical characteristics [where the accident occurred] created a substantial risk that
a driver using due care while traveling along [the street] would be unable to stop for
pedestrians who were using due care while crossing at the . . . intersection”].) In my
2
In fact, “‘[a]ccording to the . . . [V]ehicle [C]ode, there is a legal crosswalk
at every intersection whether it is marked or not.’” (Sun, supra, 166 Cal.App.4th
at p. 1191.)
6
view, citing lack of traffic gaps is analogous to relying on volume and speed of traffic
without more to claim a dangerous condition.3
Assuming a lack of traffic gaps could constitute a physical deficiency in the
property, the majority’s reliance on plaintiffs’ expert’s opinion in this regard still is
misplaced. Although a third party’s negligence does not negate liability for a dangerous
condition of public property, the alleged defect in the property “‘must have some casual
relationship to the third party conduct that injures the plaintiff[s].’” (Salas, supra,
198 Cal.App.4th at p. 1070.) Plaintiffs did not establish that a lack of traffic gaps had
any causal relationship to the third party conduct that resulted in injury. No evidence
suggested that Leiner’s failure to stop for the girls was caused by a lack of traffic
gaps, or that “longer” traffic gaps would have led to a different result. In other words,
no causal relationship existed between an alleged defect in the property—the lack
of traffic gaps—and the third party conduct that injured the girls—Leiner’s striking
the girls after looking down despite seeing the crosswalk and people on the corner.
(Id. at pp. 1069-1070 [no statutory dangerous condition of public property unless defect
in the physical condition of the property has some causal relationship to the third party
conduct that injures the plaintiff].)
According to plaintiffs, and accepted by the majority, the fact that four motorists
stopped for the girls to cross the street is evidence of a dangerous condition of public
property. Or, put a different way, no motorist should ever have to stop for a pedestrian at
a crosswalk because traffic gaps should allow all persons to cross without any motorist
stopping. The purpose of a crosswalk, however, is for motorists to stop for pedestrians.
3
To the extent the majority suggests that the physical defect in the property
includes a consideration of the placement of the traffic lights to the north and south of the
intersection, each 660 feet away, I disagree. Nothing about those lights suggested that a
driver using due care would be unable to stop for pedestrians. In fact, the evidence was
to the contrary because four drivers using due care did stop for the girls. Thus, the traffic
lights to the north and south of the intersection did not “create[] a substantial risk that
a driver using due care while traveling along [the street] would be unable to stop for
pedestrians who were using due care while crossing at the . . . intersection.” (Brenner,
supra, 113 Cal.App.4th at p. 440.)
7
The purpose of a crosswalk is not to allow pedestrians to cross without any motorist
needing to stop for them. Motorists will sometimes have to stop for pedestrians in a
crosswalk no matter the length of the traffic gaps because a pedestrian, whether an adult
or child, could always step off the curb near the end of the gap. Improved timing patterns
therefore cannot eliminate the possibility that pedestrians will be in the crosswalk as cars
approach, a point essentially conceded by plaintiffs because, as noted, their expert did not
even suggest that “longer” traffic gaps would have made it unnecessary for motorists to
stop in this case.
In conjunction with the lack of traffic gaps theory, plaintiffs’ expert opined that
the City could have undertaken several alternatives to make the intersection safer for
pedestrians, such as installing a traffic light, a four-way stop or flashing lights. And
the majority suggests that the City’s failure to install a traffic light at the intersection,
or undertake some additional measure, given the nearby schools and retail shops on
the other side of the street, is evidence of a dangerous condition. Indeed, the majority
concludes that “[t]his environment—the presence of the schools, retail shops, and high
volume of traffic—required the City to do more than paint a crosswalk and put up
crosswalk signs.” (Maj. opn., at p. 15.) But the potential to increase public safety does
not prove the condition of public property at the time of an accident was dangerous.
(Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 132 (Fredette); Dole Citrus
v. State of California (1997) 60 Cal.App.4th 486, 494 (Dole Citrus) [potential that public
property in its original design could have been made safer is irrelevant; “‘liability is not
to be fastened upon a municipality merely because it may appear that certain property, in
nowise dangerous either in its construction or intended use, could possibly be made
safer by other means’”].)
Moreover, the schools and shops near the intersection could not create a dangerous
condition of public property absent an allegation of a physical condition that made it
unsafe to cross. (Brenner, supra, 113 Cal.App.4th at p. 441.) No such allegation exists
here. The “environment” cited by the majority (maj. opn., at p. 15), which purportedly
increased pedestrian use of the crosswalk, particularly by children, did not create a
8
dangerous condition as a matter of law. For example, in Cerna, supra, 161 Cal.App.4th
1340, a motorist killed a child and injured members of her family as they crossed a city
street on their way to school. (Id. at p. 1344.) Plaintiffs alleged a dangerous condition at
the intersection based on the city’s alleged failure to assure safe school access. (Ibid.)
After reviewing each of the factors plaintiffs identified as potentially dangerous, the
appellate court affirmed summary judgment, concluding that the factors, individually or
in combination, did not create a dangerous condition. (Id. at p. 1352.) In Brenner, the
appellate court held the sustaining of a demurrer to plaintiff’s complaint was proper in
part because the factor cited by the plaintiff “that there is a park, a convenience store,
a school, and two bus stops at or near the . . . intersection and an increasing number of
pedestrians cross . . . to patronize those facilities . . . d[id] not make the intersection a
dangerous condition.” (Brenner, at p. 441.) And in Sun, supra, 166 Cal.App.4th
at p. 1190, the appellate court concluded that the City’s installation of bulb-outs,
which might have invited heavier pedestrian use, did not evidence a dangerous condition
as a matter of law because “there is nothing about heavy pedestrian use that increased or
intensified the danger to [the plaintiff] as she attempted to cross the street.” The same is
true here. Although schools and shops were near the intersection, and pedestrians might
have used the crosswalk frequently, plaintiffs failed to identify any physical condition
that made it unsafe to cross. Indeed, the accident occurred at night long after school
hours, and no evidence suggested that the girls’ presence at the intersection at 7:20 p.m.
had any relation to the schools.4
4
The majority refers to homes near the intersection or its residential nature.
Although a citizen who voiced concerns about the intersection lived near it, plaintiffs’
expert did not opine that residences near the intersection contributed to a physical defect
in the property, and plaintiffs did not make such an argument. On the contrary, plaintiffs’
expert focused solely on the presence of schools and retail shops at the intersection in
relation to his theory on the lack of traffic gaps. As a result, no evidence suggested that
residences near the intersection contributed to a dangerous condition of public property
on the night of the accident. Indeed, the presence of schools and retail shops, in
conjunction with the lack of traffic gaps, is the focus of the majority’s analysis of
dangerousness. Thus, its references to residences are outside the bounds of plaintiffs’
9
The majority also relies on plaintiffs’ expert’s opinion based on prior accidents
at the intersection. “While there must be substantial similarity to offer other accident
evidence for any purpose, a stricter degree of substantial similarity is required when other
accident evidence is offered to show a dangerous condition; ‘“the other accident must
be connected in some way with that thing”’” suggesting a physical defect in the
property. (Salas, supra, 198 Cal.App.4th at p. 1072.) The expert maintained that
rear-end accidents were similar to the one at issue, assuming that they occurred because
a car hit a motorist stopped for a pedestrian, but neither the accident report used by the
expert nor any other evidence supported that assumption. The expert also relied on
two bicycle accidents and five automobile-pedestrian accidents in a 10-year period.
According to the accident report, one of the bicycle accidents involved travel on
the wrong side of the road, and two of the pedestrian accidents involved drivers who
were turning at the intersection. Those accidents, therefore, do not have the requisite
similarity to the one here. As to the remaining accidents, plaintiffs failed to connect
them with any physical defect in the property under the circumstances of this case. (See
Sun, supra, 166 Cal.App.4th at pp. 1187-1188 [prior accidents do not show dangerous
condition when not connected to alleged physical defect claimed by plaintiffs to render
the intersection dangerous with regard to automobile-pedestrian accident].) In any case,
plaintiffs’ evidence did not suggest the remaining accidents established a triable issue
on dangerousness in light of the traffic volume on Laurel Canyon Boulevard and the
10 years examined. (See Mixon, supra, 207 Cal.App.4th at p. 138.)
The majority further cites the citizen’s reported concerns about safety at the
intersection and studies performed in relation to the intersection to support its conclusion
that summary judgment was improper. If the intersection were determined to be
dangerous, the citizen’s reports might constitute evidence that the City was aware of the
conditions; but the reports themselves do not establish a dangerous condition of public
property. (Sun, supra, 166 Cal.App.4th at p. 1188 [citizen letters expressing concern
expert opinion and any argument made by plaintiffs. The references, therefore, do not
support the reversal of summary judgment.
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about public safety at intersection relevant to whether city had notice of potentially
dangerous intersection but not competent evidence that intersection in fact was dangerous
under statutory definition].) As for the studies performed on the intersection, one of
them was done on the premise of expanding a school near the intersection and evaluated
whether additional measures should be taken at the intersection in light of that expansion,
with a particular focus on periods of “heavy” student use of the intersection before
and after school hours—different from the time of the accident here, which occurred at
7:20 p.m. and with no indication that the girls were at the intersection because of the
schools. That study thus did not suggest the intersection was dangerous as conditions
existed on the night of the accident.5 The other study suggested the intersection might
be in line for safety improvement, but such an evaluation does not render the
intersection statutorily dangerous. As noted, the potential to increase public safety
by implementing additional precautionary measures does not prove the current condition
is statutorily dangerous. (Fredette, supra, 187 Cal.App.3d at p. 132; Dole Citrus, supra,
60 Cal.App.4th at p. 494.)
Contrary to the majority’s analysis, distinctions between this case and Mixon,
supra, 207 Cal.App.4th 124, do not render summary judgment improper. As in Mixon,
summary judgment was proper in this case because none of the features identified
by plaintiffs, either considered individually or together, along with the accident
history established a triable issue as to a dangerous condition of public property. The
majority maintains that this case is more akin to Cole v. Town of Los Gatos (2012)
205 Cal.App.4th 749 (Cole). Cole, however, is distinguishable, because there evidence
existed “from which a trier of fact could conclude that the third party conduct—at least
the immediately injurious conduct, which was the act of driving off the road—was
‘caused’ by the characteristics plaintiffs cite as dangerous conditions.” (Id. at p. 774.)
5
Plaintiffs’ expert faulted the City, particularly in relation to his theory of lack of
traffic gaps, for not changing the intersection based on this study. The study, however,
plainly related to measures to be undertaken based on the expansion of one of the schools
near the intersection, not the current condition of the intersection.
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The same is true of the other cases cited by the majority regarding the import of third
party conduct on the dangerous condition analysis. Here, in contrast, the third party
conduct—Leiner’s failing to stop for the girls in the crosswalk—was not caused by any
of the features plaintiffs claim were dangerous. In other words, the third party conduct
was not connected to a physical defect in the condition of the property. Leiner saw the
crosswalk and the girls on the corner; his failure to stop was not the result of a physical
defect in the condition of the property.
In sum, I disagree with the majority’s analysis and believe that it unnecessarily
expands the limited statutory scope for liability for a dangerous condition of public
property. I would affirm the judgment.
ROTHSCHILD, P. J.
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