California Court of Appeal, First Appellate District, Destiny Thimon, v. City of Newark, Docket No. A152093, Certified for Publication

Tort

Dangerous Condition Liability

Public Defendant

Dangerous Condition of Public Property

Substantial Risk Test

Traffic Case

California Law

Evidence: Expert Declaration: The proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment

Destiny Thimon, then 14 years old, was crossing Cherry Street in Newark, California one morning when she was hit by a car driven by Bihn Soudachanh, who did not see her because the sun was in his eyes. Thimon was seriously injured as a result.

Through her guardian ad litem, Thimon sued the City of Newark (Newark), asserting that a variety of alleged defects in the intersection and its surrounds rendered it a dangerous condition that partially caused the accident. Newark filed a motion for summary judgment contending, among other things, that the intersection did not constitute a dangerous condition and that Thimon could not show it was a dangerous condition. The trial court granted summary judgment on these grounds and entered judgment in favor of Newark. Thimon timely appealed. We affirm.

The governing law in this dispute over the condition of the Cherry/Redeker intersection is the Government Claims Act (Gov. Code, § 810 et seq. (the Act)).
“Section 835 . . . of the Act . . . prescribes the conditions under which a public entity may be held liable for injuries caused by a dangerous condition of public property. [Citation.] Section 835 provides that a public entity may be held liable for such injuries ‘if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [and] [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.’ In addition, the plaintiff must establish [4] that 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 . . . notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.’ ” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105 (Cordova).)

“The Act defines a ‘ “dangerous 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.’ ([Gov. Code,] § 830.) Public property is in a dangerous condition within the meaning of [Government Code] section 835 if it ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.’ ” (Cordova, supra, 61 Cal.4th at p. 1105.) “But public property has also been considered to be in a dangerous condition ‘because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.’ ” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149 (Bonanno).) “A dangerous condition of public property can come in several forms and may be based on an ‘amalgam’ of factors.” (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1069 (Salas).) “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.’ ([Gov. Code,] § 830.2.)” (Cordova, at pp. 1104-1105.)

The fact that Soudachanh’s negligence was a proximate cause of Thimon’s injury does not preclude a finding of dangerous condition. “If a condition of public property ‘creates a substantial risk of injury even when the property is used with due care’ [citation], a public entity ‘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.’ ” (Cordova, supra, 61 Cal.4th at p. 1105.) When a third party’s conduct is the immediate cause of a plaintiff’s harm, the question becomes whether the dangerous condition “increased or intensified” the risk of injury from the third party’s conduct. (Zelig v. City of Los Angeles (2002) 27 Cal.4th 1112, 1137; Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348.)

On the other hand, a public entity is not required to assume that third parties such as Soudachanh will act negligently or recklessly. “As one court has 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 that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not “dangerous” within the meaning of section 830, subdivision (a).’ ” (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.)

“Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion. [Citation.] ‘It is for the court to determine whether, as a matter of law, a given defect is not dangerous. This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.’ ” (Salas, supra, 198 Cal.App.4th at p. 1070.) Moreover, “expert opinions on whether a given condition constitutes a dangerous condition of public property are not determinative: ‘The fact that a witness can be found to opine that such a condition constitutes a significant risk and a dangerous condition does not eliminate this court’s statutory task pursuant to [Government Code] section 830.2, of independently evaluating the circumstances.’ ” (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189 (Sun).)

(…) Newark proffered evidence establishing that Cherry has no blind corners, elevation variances, trees, plants or shrubbery that would obstruct a driver’s view of a pedestrian in the area of the Cherry/Redeker intersection; that the intersection had a crosswalk painted with white lines; that signs warning of pedestrians had been installed on the approach to the intersection; that although the sun impeded Soudachanh’s view, he was aware of the glare well before he approached the intersection; that Soudachanh was neither wearing sunglasses nor the prescription glasses required by his license, but instead was only wearing drug store reading glasses; that police found Soudachanh violated the Vehicle Code (by failing to yield to a pedestrian in a crosswalk and traveling at an unsafe speed), which caused the accident; and that despite the heavy morning commute traffic and sun glare during certain months there was no history of collisions at this crosswalk involving pedestrians in the 10 years prior to this accident. (See, e.g., Salas, supra, 198 Cal.App.4th at pp. 1062-1064.) The absence of prior similar accidents supports the inference that drivers exercising due care, such as by driving more slowly or taking other precautions to mitigate the effect of the sun’s glare, would not have caused such an accident. (Id. at pp. 1064, 1071; Mixon v. Pacific Gas & Elec. Co. (2012) 207 Cal.App.4th 124, 138 (Mixon).) This in turn indicates the “substantial risk” requirement of Government Code section 830, subdivision (a) cannot be met, and there was thus no dangerous condition.

(…) It also presented a study by a consulting company conducted shortly after the accident that analyzed whether a traffic signal was warranted at the intersection based on the criteria for traffic signals in the California Manual on Uniform Traffic Control Devices, which study concluded a traffic signal was not warranted.

(…) Thimon correctly points out that Soudachanh’s negligence does not preclude a finding of dangerous condition. When third-party negligence or misconduct has proximately caused a plaintiff’s injury, the question is whether the alleged dangerous condition “ ‘increased or intensified’ the danger to users from third party conduct.” (Bonanno, supra, 30 Cal.4th at p. 155; Cerna, supra, 161 Cal.App.4th at p. 1348.)

(…) Evid. Code, § 664 [presumption that official duty has been regularly performed].)

(…) (See Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 992 [whether condition of property poses substantial risk of injury to foreseeable users exercising due care is objective standard measured by risk posed to ordinary foreseeable user].)

(…) Evidence shows the conditions Thimon claims are dangerous were apparent to pedestrians

(…) Cherry Street at, approaching and beyond the crosswalk was straight and level, without significant curves, elevation variances, blind corners or sight obstructions. Nor were there trees, plants or shrubbery that would prevent drivers from seeing pedestrians or, conversely, pedestrians from observing the oncoming traffic on Cherry Street. Thus, nothing prevented pedestrians from observing the volume of the oncoming traffic or its speed. Given these conditions, there is no reason to believe the width of Cherry at the intersection with Redeker was not apparent to any pedestrian using the crosswalk. The same is true of the absence of a signal or other traffic controls. Likewise, all pedestrians walking on Cherry who exercised due care by looking both ways before crossing would be exposed to the same intense sun glare as southward traveling motorists experienced. (Cf. Mixon, supra, 207 Cal.App.4th at p. 134 [“ ‘it is obvious to all when a streetlight is out’ ”]; Chowdhury v. City of Los Angeles, supra, 38 Cal.App.4th at p. 1194 [obviously inoperative traffic signals during a power outage did not amount to dangerous condition as a matter of law].)

(…) We also note that the overwhelming weight of authority, including from our own court, strongly suggests that an intersection with a crosswalk but no signals, whether marked or unmarked, is not a dangerous condition within the meaning of the Government Claims Act even when it is located on a high-speed, high-traffic road, particularly in the absence of a history of other collisions.

(…) The proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment. (Sun, supra, 166 Cal.App.4th at p. 1189.)

(…) We so conclude here. In light of the undisputed evidence, including the lack of any similar collisions over the 10 years preceding the accident during which tens of millions of vehicles passed through this intersection, we agree with the trial court that the tragic accident and injury plaintiff suffered was caused entirely by the negligence of a driver and not by any dangerous condition of public property

(…) Plaintiff’s expert’s review of citywide speed studies indicated the average daily traffic on Cherry Street at the intersection with Redeker from 2006 up to the time of the accident ranged from 18,348 to 27,212 vehicles, indicating that roughly 80 million vehicles passed through the intersection during that time without the occurrence of a single vehicle-pedestrian accident similar to the one that injured Thimon. Similar statistics have led other courts to conclude there was no dangerous condition. (Salas, supra, 198 Cal.App.4th at pp. 1064, 1071 [31.5 million vehicles over 10 years with no accidents]; Mixon, supra, 207 Cal.App.4th at p. 138 [7.8 million vehicles over five years with only one accident].) Such evidence tends to prove that any risk is remote, rather than constitutes a risk that meets Government Code section 830’s requirement that it be “substantial.”

(California Court of Appeal, First Appellate District, January 27, 2020, Destiny Thimon, v. City of Newark, Docket No. A152093, Certified for Publication)