Skelton v. City of Brentwood CA1/1

Filed 11/29/23 Skelton v. City of Brentwood CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

GLEN SKELTON,
Plaintiff and Appellant,
A163442
v.
CITY OF BRENTWOOD, (Contra Costa County
Super. Ct. No. MSC19-02225)
Defendant and Respondent.

Plaintiff Glen Skelton sued the City of Brentwood (City) after he fell
from his bicycle while riding across metal grates covering a concrete drainage
trench that runs between a bike path and a public park. As Skelton crossed
from the bike path to the park, the bike’s front tire became trapped in a gap
between two grates, propelling him over the handlebars.
Skelton appeals from a grant of summary judgment in the City’s favor.
The trial court held that his claims were barred because there was
insufficient evidence that the City had notice of the alleged dangerous
condition. The court also held that his claims were independently barred by
“trail immunity” under Government Code1 section 831.4, which immunizes
public entities for injuries “caused by a condition of” a trail used for

1 All further statutory references are to the Government Code unless

otherwise noted.
recreational purposes. We conclude that summary judgment was
unwarranted on either ground and therefore reverse.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On February 6, 2019, Skelton was riding his bicycle on the Sage Glen
Estates Trail, a 10-foot-wide, paved bike path that runs roughly north to
south.2 Traveling next to him were his two dogs he routinely took to Sage
Glen Park, a public park that includes a grassy area and a playground. The
park was opened to the public in the summer of 2007, and the bike path was
officially opened the following May.
Looking south, the direction Skelton was riding before his accident, a
dirt strip about two feet wide runs along the right side of the bike path.
Running along the right side of the dirt strip is the drainage trench, a
concrete, V-shaped drainage channel about three and a half feet wide. The
park is directly west (on the right side) of the trench. The trench is covered
by metal grates held together with metal brackets. The trench and metal
grates “directly meet the edge of the grass play areas of [the park] along the
entire east edge of the park,” except for certain locations where a concrete
walk extends from the park across both the trench and dirt strip to the bike
path.
While riding his bike south on the bike path, Skelton turned at a
shallow angle toward the park. As his front tire traveled across the trench
grates, and while his back tire was still on the dirt strip, the front tire went

2 The bike path is a “Class I [b]ikeway,” meaning it “provide[s] a

completely separated right-of-way designated for the exclusive use of bicycles
and pedestrians with crossflows by motorists minimized.” (Sts. & Hy. Code,
§ 890.4, subd. (a).)
2
through a gap between two metal grates and became stuck. As a result,
Skelton was propelled over his bike’s handlebars onto the park grass,
sustaining unspecified physical injuries.
A week after the accident, Skelton returned to inspect the metal grates
near the scene, and he took several photographs. In his deposition, he
testified that there was still a “giant gap” between the two grates where his
front bicycle tire was caught, and one of the metal brackets was missing. In a
quarter-mile stretch of grates, he found that “[a]t least a dozen” brackets
were damaged or missing. For purposes of this appeal, it appears undisputed
that the grates were improperly secured at the time of the accident, whether
because the gap already existed when Skelton rode onto the grates or was
caused by his tire.
Also about a week after the accident, on February 14, 2019, City staff
inspected the metal grates. They “noticed loose brackets, tightened those
brackets, and stated they would ‘continue to monitor the drainage system,
including the grates.’ ” The grates were again inspected on September 5 of
that year.
A year later, in the fall of 2020, City workers cleaned out the drainage
trench, requiring them to remove and then refasten the metal grates and
brackets. According to the City’s records, however, the brackets were never
repaired or replaced in the decade before Skelton’s accident or afterward,
through the end of 2020. Nor were the metal grates inspected at any time
between January 2014 and the accident. The City had no record of any
complaints about the grates prior to the accident.
In May 2021, Skelton returned to the scene of the accident and took
several photographs. He “noticed that several of the grates covering the

3
concrete spillway were not secure,” some brackets were missing or loose, and
at least one grate was “partially broken.”
Skelton sued the City, alleging causes of action for premises liability,
general negligence, and dangerous condition of property. The City moved for
summary judgment on the bases that (1) there was no triable issue of
material fact about whether it had actual or constructive notice of the
dangerous condition and (2) trail immunity barred the suit. The trial court
granted the motion on both grounds, and it entered judgment in the City’s
favor in August 2021.
II.
DISCUSSION
A. General Legal Standards
There is no common law tort liability for public entities in California.
(Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 601 (Nealy).) Instead,
liability exists exclusively under the Government Claims Act (§ 810 et seq.)
(the Act), “ ‘ “a comprehensive statutory scheme that sets forth the liabilities
and immunities of public entities and public employees for torts.” ’ ” (Nealy,
at p. 601.) Under the Act, “[a] public entity is generally liable for an 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 and
the public entity had actual or constructive notice of the dangerous
condition.” (Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929;
§§ 835, 835.2.) At the same time, the Act immunizes public entities from
liability for certain types of injuries, including those “caused by a condition
of” a recreational trail. (§ 831.4, subd. (b); see generally § 830.4 et seq.)
Summary judgment is proper if “there is no triable issue as to any
material fact and . . . the moving party is entitled to a judgment as a matter
of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary

4
judgment must present evidence “that one or more elements of the cause of
action . . . cannot be established, or that there is a complete defense to the
cause of action.” (Id., § 437c, subd. (p)(2).) The burden then “shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Ibid.) “There is a triable
issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).)
We review the record de novo and “decide independently whether the
facts not subject to triable dispute warrant judgment for the moving party as
a matter of law.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) In
doing so, we “liberally construe the evidence in favor of [the plaintiff], and
resolve all doubts concerning the evidence in favor of the [plaintiff].”
(Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 61.) As in any
other appeal, when reviewing a grant of summary judgment we need not
consider points or arguments a party did not raise below. (Meridian
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 698–699
(Meridian).)
B. The City Is Not Entitled to Summary Judgment Based on Its Lack
of Constructive Notice of the Dangerous Condition.
Skelton claims that he presented sufficient evidence to create a triable
issue on whether the City had constructive notice of the condition of the
metal grates. We agree.3

3 As a result, we need not address whether the City also had actual

notice of the metal grates’ condition, as Skelton argues for the first time on
appeal.
5
 Section 835, the general statute under which a public entity may be
held “liable for injury caused by a dangerous condition of its property,”
requires a plaintiff to prove either that the entity negligently or wrongfully
“created” the condition or that the entity “had actual or constructive notice of
the . . . condition under Section 835.2 a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.” (§ 835,
subds. (a) & (b).)
In turn, section 835.2, subdivision (b), provides that “[a] public entity
had constructive notice of a dangerous condition within the meaning of
subdivision (b) of Section 835 only if the plaintiff establishes that the
condition had existed for such a period of time and was of such an obvious
nature that the public entity, in the exercise of due care, should have
discovered the condition and its dangerous character.” The statute then
identifies two types of evidence that are admissible on the issue of due care:
“(1) Whether the existence of the condition and its dangerous character would
have been discovered by an inspection system that was reasonably adequate”
and “(2) Whether the public entity maintained and operated such an
inspection system with due care and did not discover the condition.” (§ 835.2,
subd. (b).)
Thus, under the Act, “[a] public entity will be charged with constructive
notice of a dangerous condition only if (1) the dangerous condition existed for
a sufficient period of time before the plaintiff’s injury, and (2) [the condition]
was sufficiently obvious that the entity acted negligently in not discovering
and repairing it.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th
508, 514.) Generally, the issues “whether a dangerous condition could have
been discovered by [a] reasonable inspection and whether there was adequate

6
time for preventive measures are properly left to the jury.” (Carson v.
Facilities Development Co. (1984) 36 Cal.3d 830, 843.)
The trial court held that Skelton failed to present sufficient evidence
that the dangerous condition existed “for such a period of time” that the City
should have discovered it. In doing so, the court referred to case law it
characterized as holding “that a plaintiff who cannot establish how long a
dangerous condition existed” cannot prove constructive notice. It then
rejected Skelton’s argument that negligence could be inferred “because the
City never had a system in place to periodically inspect the [trench] and
metal grate[s] for dangerous conditions.” The court acknowledged that under
Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203 (Ortega), a private
party’s failure to inspect its property within a reasonable period of time
permits an inference that the dangerous condition existed long enough to
establish constructive notice, but it concluded that Ortega does not apply to
public entity defendants.
In evaluating the trial court’s ruling, we begin by questioning whether
the City met its initial burden of presenting evidence that Skelton could not
establish the element of constructive notice. (See Code Civ. Proc., § 437,
subd. (p)(2); Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th
954, 962.) Skelton does not directly raise this issue, but it is fundamental to
the analysis. “[S]ummary judgment law in this state . . . require[s] a
defendant . . . to present evidence, and not simply point out that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar,
supra, 25 Cal.4th at p. 854, fn. omitted.) Thus, if the defendant does not
“ ‘present evidence sufficient to show [it] is entitled to judgment as a matter
of law,’ ” then the burden never shifts to the plaintiff to present opposing
evidence. (Swanson, at p. 962.)

7
 In moving for summary judgment, the City presented little evidence,
simply insisting there was “no evidence that [it] had actual or constructive
notice of any dangerous condition.” To support its motion, the City relied on
only two facts, neither of which Skelton disputed: that its “Public Works
officials and maintenance workers maintain that they were not aware and
did not have any complaints that any part or portions of the metal grates
were not adequately or properly secured,” and that “Skelton testified that
prior to the incident, he did not know if the metal grates were already in a
separated condition before the front tire of his bicycle contacted them or if it
was his turning movement that separated the grates.”
This evidence was insufficient to establish that Skelton did not have,
and could not obtain, evidence proving constructive notice. (See Aguilar,
supra, 25 Cal.4th at p. 855.) Although the first fact regarding the City
employees’ lack of awareness supports the conclusion that the City did not
have actual notice of the grates’ dangerous condition, it proves little about
the duration of that condition, particularly since there was apparently no
inspection system in place. The second fact regarding Skelton’s
understanding about the grates’ separation proves even less about the
duration of the condition, since the claimed dangerous condition is that the
grates were inadequately secured, not that there was necessarily a
preexisting gap between them. Nor does either fact demonstrate that Skelton
could not otherwise establish that the City had constructive notice of a
problem with the grates based on other evidence.
Separately, we also question the trial court’s statement that Ortega is
inapplicable to public entity defendants, although Skelton again does not
challenge the assertion. (See Martinez v. City of Beverly Hills, supra,
71 Cal.App.5th at p. 520 [citing Ortega for proposition that “constructive

8
notice of a defect may be imputed to a public entity that fails to have a
‘reasonably adequate’ inspection system”].) We are not convinced by the
court’s reasoning that since section 835.2, subdivision (b), provides that
evidence about “an inspection system” is admissible on the issue of due care,
such evidence is therefore immaterial to the issue of constructive notice
“under the literal terms” of the statute. (See Ruiz v. Musclewood Property
Investments, LLC (2018) 28 Cal.App.5th 15, 22 [courts cannot “ ‘insert words
into a statute under the guise of interpretation’ ”].)
Nor do we agree with the treatise cited by the trial court, which states
that Ortega’s failure-to-inspect inference “appears inconsistent with the
[Act’s] express requirement . . . that [a] plaintiff must establish that the
dangerous condition existed for an adequate period of time before the
accident.” (California Government Tort Liability Practice (Cont.Ed.Bar 4th
ed. 2014) § 12.50, p. 12-74.) Although “public entity liability is statutory in
nature,” the Act’s provisions “are to be read against the background of
general tort law.” (Peterson v. San Francisco Community College Dist. (1984)
36 Cal.3d 799, 809.) Under general tort law, as under section 835.2, a
plaintiff seeking recovery for a property’s dangerous condition is required “to
prove the owner had actual or constructive notice of the defect in sufficient
time to correct it.” (Ortega, supra, 26 Cal.4th at p. 1203.) Since these
duration requirements are effectively the same, we do not see how Ortega’s
failure-to-inspect inference necessarily conflicts with section 835.2’s
language. (Cf. Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 836
[res ipsa loquitur doctrine conflicts with requirement under section 835,
subdivision (a), that public entity’s employee “created” dangerous condition].)
Ultimately, whether Ortega applies to public entities does not control
here. Regardless of Ortega’s applicability, Skelton presented enough

9
evidence (other than the City’s failure to inspect) to create a triable issue on
whether the problem with the grates existed for such a duration that the City
should have discovered it. This evidence included Skelton’s observation that
several brackets were again loose or missing within months after the grates
were secured following the trench’s cleanout, suggesting that the grates’ not
being properly secured was a “recurring or continuous” condition, as opposed
to a “ ‘transient’ ” one like a spill. (Lopez v. Superior Court (1996)
45 Cal.App.4th 705, 716.) A factfinder could reasonably infer that the
condition existed long enough before the accident that the City should have
discovered it. Thus, the City was not entitled to judgment as a matter of law
based on the element of constructive notice.
C. Trail Immunity Does Not Bar this Suit as a Matter of Law.
Skelton also claims that the trial court incorrectly held that trail
immunity barred his suit. Again, we agree, because triable issues of material
fact must be resolved to decide the applicability of trail immunity.
1. Trail immunity
Under section 831.4, the trail immunity statute, a public entity “is not
liable for an injury caused by a condition of: [¶] (a) Any unpaved road which
provides access to fishing, hunting, camping, hiking, riding, including animal
and all types of vehicular riding, water sports, recreational or scenic areas
and which is not a (1) city street or highway or (2) county, state or federal
highway or (3) public street or highway of a . . . district formed for the
improvement or building of public streets or highways. [¶] (b) Any trail used
for the above purposes.” (§ 831.4; Montenegro v. City of Bradbury, supra,
215 Cal.App.4th at p. 929.) Read together, subdivisions (a) and (b) attach
immunity “ ‘to trails providing access to recreational activities as well as to
trails on which those recreational activities take place.’ ” (Loeb v. County of

10
San Diego (2019) 43 Cal.App.5th 421, 431.) “ ‘Whether a property is
considered a “trail” under section 831.4 turns on “a number of
considerations,” including (1) the accepted definitions of the property, (2) the
purpose for which the property is designed and used, and (3) the purpose of
the immunity statute.’ ” (Nealy, supra, 54 Cal.App.5th at p. 603.)
The purpose of section 831.4 “ ‘ “ ‘is to encourage public entities to open
their property for public recreational use, because “the burden and expense of
putting such property in a safe condition and the expense of defending claims
for injuries would probably cause many public entities to close such areas to
public use.” ’ ” ’ ” (Nealy, supra, 54 Cal.App.5th at pp. 602–603.) Consistent
with this purpose, trail immunity covers claims arising not just from a trail’s
physical condition but also its design and location, which are “ ‘ “integral
feature[s] of a trail.” ’ ” (Id. at p. 603.) Also consistent with this purpose, the
relevant focus is on whether a condition of the trail caused the injury,
regardless of whether the injury was sustained while the plaintiff was on the
trail. (Compare, e.g., Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921,
924 (Toeppe) [no trail immunity where plaintiff hit by falling tree branch
while walking on trail], with Prokop v. City of Los Angeles (2007)
150 Cal.App.4th 1332, 1335, 1341–1342 (Prokop) [trail immunity where
plaintiff collided with chain link fence after exiting bike path].)
2. The bike path and dirt strip both qualify as a “trail.”
We begin by addressing, and rejecting, Skelton’s appellate argument
that section 831.4 does not apply to paved trails, contrary to well-settled case
law. (Prokop, supra, 150 Cal.App.4th at pp. 1338–1341 [discussing cases];
Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 418 [“the nature
of the trail’s surface is irrelevant to questions of immunity”].) Skelton did not
raise this argument in the trial court, and we therefore deem it forfeited and

11
decline to reach its merits. (See Meridian, supra, 67 Cal.App.5th at pp. 698–
699.)
Putting aside this late-raised argument, it is undisputed that the bike
path is a trail under section 831.4, subdivision (b). In moving for summary
judgment, the City argued that the dirt strip is part of the bike path, which
Skelton disputed. The trial court determined that the dirt strip qualified as a
trail, whether because it is part of the bike path or a separate path. (See
Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1079
(Amberger-Warren) [“path” is synonymous with “trail”].)
As the City points out, in his opening brief Skelton did not challenge
the trial court’s determination that the dirt strip is a “trail.” Because he
raises such a challenge for the first time in his reply brief, his argument is
forfeited. (See Nick v. City of Lake Forest (2014) 232 Cal.App.4th 871, 879.)
Thus, we will assume the trial court correctly concluded that the dirt strip is
a trail under section 831.4.
In its order, the trial court effectively found that the metal grates on
the concrete trench did not themselves form a trail. The City, however, now
argues that the metal-grate-covered trench “runs on the dirt trail because
where [it] . . . ends on either end, the dirt trail continues.” Not only did the
City not raise this argument in moving for summary judgment, but the
argument also directly contradicts the City’s position below that the trail at
issue “consist[s] of an asphalt and dirt portion” and that the trench and
grates “run parallel along the entirety of the dirt path that [Skelton] was
using as a trail.” Accordingly, the City’s contention that the trench and metal
grates are actually part of the trail’s surface is forfeited. (See Meridian,
supra, 67 Cal.App.5th at pp. 698–699.)

12
 Furthermore, even if the City’s contention were not forfeited, we would
disagree with it. It is readily apparent that the concrete trench does not run
“on” the dirt strip. As for the metal grates, although they are basically flush
with the dirt strip, they are “on” the trench, not the dirt. Moreover,
photographs of both ends of the spillway show that while one end terminates
in dirt similar to the dirt strip, the other terminates partially in dirt and
partially in the park’s grassy area. Finally, the City identifies no evidence
suggesting that the metal grates are designed to be traveled for any
appreciable length in the same direction as are the bike path and dirt strip.
In short, we are not persuaded that the trench and grates are actually on a
trail.
3. Triable issues exist as to whether the grate-covered
trench is “a condition of” a trail.
We now turn to the key question, which is whether the metal grates
covering the trench qualify as “a condition of” the bike path or the dirt strip
under section 831.4. We conclude that there are triable issues of material
fact on this issue.
In concluding that trail immunity applied, the trial court relied mostly
on two decisions it found analogous to this case: Amberger-Warren, supra,
143 Cal.App.4th 1074, which this division decided, and Arvizu v. City of
Pasadena (2018) 21 Cal.App.5th 760 (Arvizu), which the Second District
Court of Appeal decided. We agree with Skelton that these decisions are
distinguishable.
In Amberger-Warren, the plaintiff was on a paved pathway that ran
across a hill in the off-leash area of a city dog park. (Amberger-Warren,
supra, 143 Cal.App.4th at p. 1077.) As the plaintiff walked up the pathway
to get her dog, she “slipped on some debris . . . and fell backward, landing
‘part-way off’ the pathway. To avoid going down the hill next to the pathway,

13
she grabbed an exposed cement edge as she fell, and injured her hand in the
process.” (Id. at pp. 1077–1078.)
In relevant part, we rejected the plaintiff’s attempt “to avoid [trail]
immunity by identifying the hill next to the trail, rather than the trail itself,
as a dangerous condition.” (Amberger-Warren, supra, 143 Cal.App.4th at
p. 1085.) We explained that “this condition is not unrelated to the trail
because the trail is what provides access to the hill and exposure to the
alleged danger.” (Ibid.) Thus, accepting the plaintiff’s argument would
require installing safety rails or relocating trails “whenever the surroundings
could otherwise be considered unreasonably dangerous. The likely and
unacceptable result, which the immunity was created to avoid, would be the
closure of many trails in areas that could be deemed at all hazardous.” (Ibid.)
Several years later, the Second District relied on Amberger-Warren in
rejecting a plaintiff’s position that a condition of a trail did not cause his
injuries. (Arvizu, supra, 21 Cal.App.5th at pp. 767–769.) The Arvizu plaintiff
went with friends at night to a city park that contained a recreational trail.
(Id. at pp. 761–762.) To reach the trail, the group took a shortcut down a
natural slope that had no pathway. (Id. at p. 765.) The plaintiff slipped as
he descended, “lost his footing[,] and tumbled head over heels” to the bottom
of the slope and across the trail. (Ibid.) On the other side of the trail was a
10-foot-high retaining wall, which the trail “proceed[ed] along the top of, and
just behind.” (Ibid.) Once he crossed the trail, the plaintiff “sailed over the
retaining wall”—which did not have a guardrail—“and landed on the dirt and
rocks below,” sustaining severe injuries. (Id. at pp. 762, 765.)
Arvizu disagreed with the plaintiff that the alleged dangerous
condition, “the lack of guardrails or warnings along the retaining wall[,] . . .
had nothing to do with the trail’s location and design.” (Arvizu, supra,

14
21 Cal.App.5th at p. 767.) The Second District explained that since “[v]ery
little space separate[d] the edge of the trail and the top of the wall,” any
guardrails or warning signs “would therefore have to be placed along the
trail. For the reasons articulated in Amberger-Warren, the [defendant] is
immune from claims that warnings or guardrails are required to protect
against falls from the [t]rail over the concrete retaining wall, or that the
[t]rail should be relocated to a safer location, because these claims concern
the location and design of the trail.” (Id. at pp. 768–769.)
Here, the trial court interpreted Amberger-Warren and Arvizu to
establish that trail immunity applies if the trail “ ‘provides access to [the
dangerous condition] and exposure to the alleged danger.’ ” (Quoting
Amberger-Warren, supra, 143 Cal.App.4th at p. 1085, italics omitted.) In
those cases, however, the trail provided the only access to the dangerous
condition, which was significant because it meant that to protect the public
from the danger, either safety devices would have to be installed on the trail
or the trail would have to be relocated. (See Arvizu, supra, 21 Cal.App.5th at
pp. 768–769; Amberger-Warren, at p. 1085.) Here, the trench and metal
grates are also accessible from the park, and if Skelton prevailed the City
would not necessarily be required to install safety devices on the trail or
relocate it.
Thus, this case is more analogous to Toeppe, in which the claimed
dangerous condition was a negligently maintained eucalyptus tree in a public
park. (Toeppe, supra, 13 Cal.App.5th at p. 923.) A branch from the tree fell
on the plaintiff while she was using a trail that ran through the park. The
Fourth District Court of Appeal held that even assuming the plaintiff was
actually on the trail when the branch hit her, trail immunity did not apply.
(Id. at pp. 926–929.) In reaching its holding, Toeppe, which predates Arvizu,

15
distinguished Amberger-Warren for two key reasons. First, unlike the
hillside in Amberger-Warren, the eucalyptus tree could injure a park visitor
“whether [the visitor] used the trail or simply walked across the grass and
was struck by a falling branch.” (Toeppe, at p. 928.) And second, unlike the
Amberger-Warren plaintiff, the Toeppe plaintiff did not “allege[] that a safety
barrier need[ed] to be added to the trail or that the trail must follow a
different path.” (Toeppe, at p. 929.)
The City argues that Toeppe is “distinguishable and inapplicable,”
because here the trail is the only reason that a person would be exposed to
the claimed dangerous condition. The City may be correct that a trail user
will encounter the metal grates only “because of” the trail, similar to the
relationship between the retaining wall and the trail in Arvizu. But we
cannot agree that the only reason a park user would encounter the metal
grates is “in order to access the [trail].” (Italics omitted.) It seems perfectly
plausible to us that a person using the park’s grassy area for recreation could
go onto the metal grates, either purposely or inadvertently, without intending
to reach the dirt strip or bike path. Nor is there any evidence that the
condition of the metal grates is dangerous only to bicyclists, not to people on
foot.
The City also argues that “the metal[-]grate[-]covered [trench] is
patently an integral part of the trail, would not exist but-for the trail, and
therefore is a condition of the trial within the meaning of [s]ection 831.4.”
Specifically, the City claims that the trench’s purpose is “to provide drainage
to prevent ponding/pooling of water on the trail.” These contentions,
however, have not been factually established. If it were true that the trench
was built only to allow for drainage from the dirt strip, we might agree that
the trench, and thus the metal grates covering it, qualify as “a condition of” a

16
trail under section 831.4, subdivision (b). (See, e.g., Nealy, supra,
54 Cal.App.5th at pp. 604–605 [fence dividing trail “was ‘inherently
connected to’ and existed ‘only because of its connection with the trail’ ”];
Prokop, supra, 150 Cal.App.4th at p. 1342 [“[a] gateway to or from a bike
path is patently an integral part of the bike path”].) But the City identifies
no evidence establishing that the trench was in fact built only to allow
drainage from the dirt strip. The City did not claim below that this was the
trench’s purpose, and the only supporting evidence the City cites on appeal
consists of photographs of the bike path, dirt strip, and metal grates. These
photographs do not prove that the trench has an inherent connection to, and
exists only because of its connection with, the trail.
Moreover, Skelton presented evidence that the trench was built and
accessible to the public before the trail was. According to the City’s
interrogatory responses, the park was first opened to the public in the
summer of 2007, and the trail was “officially accepted and opened to the
public” the following May. The parties appear to agree that the trench was
present when the park opened. Although the City suggests the trail may
have been publicly accessible before its official opening date, there are at
least triable issues of fact involving the trench’s relationship to the bike path
and dirt strip. As a result, the City was not entitled to summary judgment
based on trail immunity.
III.
DISPOSITION
The judgment is reversed, and the matter is remanded for further
proceedings consistent with this opinion. Skelton is entitled to his costs on
appeal.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Getty, J.*

*Judge of the Superior Court of the County of Solano, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

Skelton v. City of Brentwood A163442

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