Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 380561 William Fahey, Judge.
Law Offices of Amy Ghosh and Amy Ghosh for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, and Blithe S. Bock, Deputy City Attorney, for Defendant and Respondent.
FLIER, J.
Appellant Yesenia De La Canal sustained serious head injuries when she was thrown from a motorcycle on which she rode, without a helmet, as a passenger. She brought an action against respondent City of Los Angeles (City). The trial court granted City’s motion for summary judgment. We agree with the trial court that failure to provide additional street lights does not constitute a dangerous condition of public property and therefore affirm.
We rely on the statement of undisputed material facts. Unless we state the conflict, the facts in our summary are undisputed.
Dean Jordan was driving his motorcycle south on Edgemont Street in Los Angeles at approximately 9:30 p.m. on November 9, 2006, when a Jaguar driven by Beverly C. Ostil (not a party this appeal) pulled away from the curb to make a U-turn on Edgemont. The motorcycle and car collided as the latter was making its turn. There is a street light 145 feet from the point of impact, which was functioning properly at the time of the accident. Appellant was thrown 70 feet and landed on the pavement; she was in a coma for 10 days.
There is a dispute about how fast Jordan was driving. He claims he was doing 25 miles per hour, which is the posted limit, but an accident reconstructionist estimated that he was going at least 45 miles per hour. There is also a dispute about the quality of the lighting at the accident scene, with the parties taking predictably contrary positions. According to appellant, the lighting was “really bad” to the point that “[no] one can see at night, ” while City states that the lighting was “sufficient.”
The predicate and alleged facts on which appellant’s claim is predicated are that the point of impact “was not well lit with street lamps and... the street should have had more lights.”
DISCUSSION
1. Darkness Is Not a Condition of Property
City contends that inadequate street lighting, standing alone, does not constitute a dangerous condition under Government Code section 835. We set forth the governing statute in the margin.
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)
City relies on three cases that support its position.
The first decision in this line of cases is Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483, which relied on American Jurisprudence 2d: “The general rule is stated in 39 American Jurisprudence Second, Highways, Streets and Bridges, section 405 at pages 803-804: ‘In the absence of a statutory or charter provision to the contrary, it is generally held that a municipality is under no duty to light its streets even though it is given the power to do so, and hence, that its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof. [Fn. omitted.] A duty to light, and the consequent liability for failure to do so, may, however, arise from some peculiar condition rendering lighting necessary in order to make the streets safe for travel. [Fn. omitted.]’” This passage has been redrafted in the current edition of American Jurisprudence 2d and it now appears in section 425, page 126. We set forth this version in the margin.
“There is authority to the effect that, in the absence of a statutory or charter provision to the contrary, a municipality is generally under no duty to light its streets even though it is given the power to do so, and, thus, its failure to light them is not actionable negligence, and will not render it liable in damages to a traveler who is injured solely by reason thereof. However, a governmental entity may be found negligent in its lighting of a road, under certain circumstances.” (40 Am.Jur.2d (2008) Highways, Streets, and Bridges, § 425, p. 126, fns. omitted.)
In Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441, 1445, where the accident occurred in a cross-walk and involved a car and a pedestrian, the court noted that, other than the lack of a light, the plaintiff had not shown that there was anything dangerous about the cross-walk. The court went on to make the cogent observation that “darkness is a naturally occurring condition that the city is under no duty to eliminate.” (Ibid.)
In City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 31, the court concluded that streets lights were a “preventative safety measure” and the lack of street lighting “does not describe a defective physical condition any more than would an entity’s failure to provide adequate lights to assure assaults do not take place at a highway rest stop.”
In sum, there are different approaches to the question of street lights as a dangerous condition but they all end with the same conclusion.
The root problem about appellant’s claim is that the absence of street lighting does not amount to a condition of public property. In the apt words of the Plattner v. City of Riverside court, darkness is a natural condition (Plattner v. City of Riverside, supra, 69 Cal.App.4th at p. 1445); darkness is not a dangerous condition of public property but is rather a regular natural phenomenon. If darkness were a condition of property that would have to be ameliorated, the burden on municipalities would be incalculable.
It may be that a condition of public property, when coupled with a lack of street lighting, constitutes a dangerous condition. A good illustration is Stanhope v. Brown County (Wisc. 1979) 280 N.W.2d 711, 724, which is cited in American Jurisprudence 2d, section 245, page 126, footnote 2, where a curve in the highway had dips and depressions in the roadway, coupled with a lack of light, created an “‘optical trap’” for the driver. But in the case before us appellant has not cited to any conditions in the street other than the allegedly poor lighting, even though appellant did submit an additional statement of material facts in opposition to the motion.
We conclude that there was no dangerous condition of public property and that for this reason City was entitled to judgment.
2. Appellant’s Contentions Are Without Merit
Appellant states in her opening brief that in addition to the lack of adequate street lighting, there are “various aspects of the condition of the street on which the incident occurred” and that it remains to be determined whether these other factors constituted dangerous conditions. But appellant does not state what these “other factors” were. In any event, as City points out, in the pleadings and discovery in the trial court appellant limited the dangerous condition to inadequate street lighting. It is now too late to advance novel theories of liability. “Specifically, in reviewing a summary judgment, the appellate court must consider only those facts before the trial court, disregarding any new allegations on appeal. [Citation.] Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal.” (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.)
We need not engage in a discussion of whether the proximate cause of the accident was the negligence of Jordan and the driver of the Jaguar or the street lighting. Because darkness is not a condition of public property, City cannot be liable under Government Code section 835, no matter what the cause of the accident was.
The same is true of City’s alleged knowledge that people were in habit of speeding on Edgemont Street. This is simply irrelevant.
Finally, appellant claims that California courts have “in the past been confronted with whether a city’s failure to provide adequate lighting or visibility” is actionable. This is true as far as it goes, which is not very far. As we have seen, California courts have rejected the suggestion that lack of street lighting is actionable.
The cases appellant cites (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799 & Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484) are of no help to appellant. Peterson does not even address the issue of street lights. Slapin involved a physical attack in an airport parking lot at night; the allegation was that the defendant knew that the parking lot was “dangerous and unsafe unless properly supervised, maintained, patrolled and protected.” (Slapin v. Los Angeles International Airport, supra, at p. 486.) While it is true that the plaintiff also alleged that the parking lot was insufficiently lighted (id. at p. 488), this was coupled with the fact that the defendant was aware of prior criminal attacks in the parking lot. As we have noted, lack of street lighting may be coupled with actual dangerous conditions of property, in which event the lack of lighting is a factor that can be considered. No such actual dangerous conditions exist in this case.
DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.
We concur: RUBIN, Acting P. J., GRIMES, J.