Opinion
Superior Court County of Santa Barbara No. 1165119, Thomas P. Anderle, Judge
Law Offices of Steven R. Andrade, Steven R. Andrade, Michael Troy; Lascher & Lascher, Wendy C. Lascher and Aris E. Karakalos for Appellant.
Stephen Shane Stark, County Counsel, Michael M. Youngdahl, Deputy County Counsel, for Respondent.
PERREN, J.
Cynthia Marie Ewing was severely injured in an automobile accident. She sued Santa Barbara County (the County), alleging that the accident had been caused by the dangerous condition of a public roadway. The County moved for summary judgment. In support of its motion it offered the expert declarations of two traffic engineers who opined that the portion of the roadway where the accident occurred did not constitute a dangerous condition or contribute to the cause of the accident. Ewing opposed the motion by submitting the declarations of two experts which came to opposite conclusions. The trial court granted the County's objections to virtually all of Ewing's experts' opinions as speculative and lacking in foundation. An objection to all of the opinions stated in one of the declarations was also sustained on the ground that the declarant had failed to demonstrate he was qualified to render opinions on the relevant issues. The court accordingly granted summary judgment in favor of the County. Ewing now appeals from that judgment.
Because the case is essentially a "battle of the experts," its resolution turns on the parties' respective expert declarations. We conclude the court did not abuse its discretion in sustaining the County's objections to the opinions of Ewing's experts, which were speculative, lacking in foundation, and which ignored undisputed facts that fatally undermined their conclusions. The court also properly exercised its discretion in finding that one of Ewing's proffered experts was not qualified to render the opinion stated in his declaration. Accordingly, we affirm the grant of summary judgment in favor of the County.
FACTS AND PROCEDURAL HISTORY
At approximately 9:00 p.m. on December 18, 2003, Ewing was traveling as a passenger north on Drum Canyon Road in a Ford truck driven by Alana Rose Crandall. Drum Canyon Road is a paved, rural county road that runs north and south between Highway 246 and the town of Los Alamos. After traveling past the intersection of Highway 246, Crandall saw that the road ahead gently curved to the left. Crandall was not surprised by the curve because she had driven that segment of road many times, including at night. Nevertheless, just as Crandall entered the curve, she suddenly swerved to the right. She initially told the police she did not know what had caused her to steer the truck in the opposite direction of the curve. In a subsequent statement to the police and her deposition testimony, however, Crandall admitted that she had swerved to avoid a deer in the road.
At the point where the truck left the road, the dirt shoulder is approximately 12 feet wide. Adjacent to the shoulder is an embankment that drops approximately eight feet into agricultural fields. The truck traveled across the shoulder and over the embankment, rolling at least once before coming to rest. Ewing suffered serious injuries as a result of the accident.
The speed limit where the accident occurred is 55 miles per hour, and the curve can be negotiated comfortably at that speed. There was no guardrail at the curve, nor any signs warning that the curve was ahead. In the 10 years prior to the accident, there were no other accidents involving a vehicle traveling over the embankment. No one had ever complained that the curve was unsafe.
Ewing filed a complaint alleging seven causes of action against various defendants, including one count against the County alleging that the accident site constituted a dangerous condition of public property. Ewing alleged that the road was unsafe due to (1) inadequate grading or banking of the road; (2) the radius of the curve; (3) inadequate width of the road; (4) inadequate width of the shoulder; and (5) the lack of adequate lighting, edge lines, road delineators, guard rails, warning signs and reflective devices.
The County moved for summary judgment on the grounds that none of the alleged deficiencies had caused Ewing's injuries, and that the road where the accident occurred did not constitute a dangerous condition. In support of the motion, the County produced evidence, including expert declarations, and alleged undisputed facts demonstrating that none of the purported deficiencies or conditions identified by Ewing had rendered the road dangerous or had caused the accident that resulted in her injuries. In his declaration, Kenneth Berner, a traffic engineer, stated that testing had indicated that the curve could be driven comfortably at the speed limit, which eliminated the need for any warning signs or other indicators. Another traffic engineer, Stephen Blewett, offered a similar opinion, and further noted that a sign would not have helped Crandall because she indicated to the police and in her deposition testimony that she was familiar with the curve and expected to see it. Berner further concluded that installing an unnecessary warning sign would be counterproductive because such signs tend to lose their effectiveness when too many are posted. For the same reasons, both experts concluded that the lack of other "visual cues" such as edge lines or reflectors would not have prevented the accident. Blewett noted that the path of the tire marks shown in post-accident photographs indicated that Crandall intentionally turned her vehicle in the opposite direction of the curve, even though she knew the curve was there.
Berner also concluded that guardrails should only be installed on an existing road where there is a history of over-embankment accidents, because guardrails can cause more accidents and injuries than they prevent. Because there was no history of such accidents at the site, no guardrail was warranted. Berner further concluded that a guardrail would not be required even assuming a statistically significant accident history, because accidents involving impact with the guardrail would, on average, be more severe than accidents involving vehicles going over the embankment.
In opposing the motion, Ewing did not dispute the County's showing with regard to the grade, bank, or width of the road, the width of the shoulder, or the radius of the curve where the accident occurred. Instead, Ewing limited her opposition to the issues regarding the lack of adequate lighting, edge lines, road delineators, guard rails, warning signs and reflective devices at the accident site. In support of her claim that these deficiencies constituted a dangerous condition of public property that contributed to the accident, Ewing submitted two expert declarations. Kenneth Solomon, an engineer who has qualified as an expert in accident reconstruction, biomechanics, and/or human factors, and Harry Krueper, who has purportedly evaluated over 20,000 accidents involving roadway safety evaluation and design and construction operations, as well as accident reconstruction, both opined that the lack of "visual cues" such as warning signs, reflective devices, and edge lines rendered the accident site dangerous. According to Solomon, these visual cues would provide drivers with "a constant reminder that the roadway is curved" and would help drivers to avoid missing the curve or temporarily forgetting it was there in a "panic situation." Krueper opined that a warning sign was required due to the "high prevailing speed" and "limitations of the roadway." He further opined that edge lines were required to provide "positive guidance" to drivers. Solomon also concluded that a guardrail "would have served as yet another constant visual cue that the roadway was curved and that an elevation drop was present" and that it would have prevented Crandall's vehicle from leaving the roadway.
The County objected to the opinions stated in both expert declarations as speculative and lacking foundation. The County also challenged Solomon's opinions on the ground that he was not qualified to render them. The court granted nearly all of the County's objections to the declarations of Ewing's experts. The court reasoned that Krueper's declaration "articulates no evidence, and provides no explanation, about how or why the existing specifications . . . caused or contributed to the happening of the accident." The court further found that "Mr. Solomon's statement is little more than speculation, with respect to his conclusion that Ms. Crandall must have forgotten about the presence of the curve and drop-off because she was placed in a panic situation. He makes no attempt to explain why the evidence, which exists in this action, supports such a conclusion. Further, the critical issue is not whether the presence of an edgeline would have prevented the accident, but whether the absence of an edgeline on the roadway constituted a dangerous condition. There is no attempt to establish that the accident would not have happened just as it did, had there been edge lines." The court reached similar conclusions as to the experts' opinions about the lack of a guardrail, and noted that "Even plaintiff's expert [Krueper] tacitly acknowledged that installation of a guardrail was not mandated by the conditions at the accident location, by his reference to his opinion that discretionary installation of a guardrail could have prevented the vehicle from rolling down the embankment." The court also noted that the lack of any similar accidents resulting from any of the claimed deficiencies "certainly reinforces the conclusion that County is entitled to judgment." Accordingly, the court granted summary judgment in the County's favor. This appeal followed.
DISCUSSION
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists 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, at p. 850, fn. omitted.)
We review the grant of summary judgment de novo. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our obligation is "'". . . to determine whether issues of fact exist, not to decide the merits of the issues themselves. . . ." . . .'" (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We "must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) A defendant is entitled to summary judgment when the evidence shows there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
"A dangerous condition of public property is 'a condition . . . 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, subd. (a).)" (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69.) Government Code section 835 provides that a public entity may be liable for an injury caused by a dangerous condition of its property if the injury was proximately caused by the dangerous condition, the dangerous condition created a foreseeable risk of the type of injury suffered, and the public entity had actual or constructive knowledge of the dangerous condition in sufficient time to protect against it. Government Code section 830.2 further provides that a condition is not dangerous as a matter of law if "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 statute "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." (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 830.2, p. 309.)
Accordingly, while the determination of dangerousness is a question of fact, the court may adjudicate it as "'". . . a question of law if reasonable minds can come to but one conclusion."'" (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) Moreover, "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 section 830.2, of independently evaluating the circumstances." (Id., at p. 705.) Causation may also be decided as a matter of law, even where the plaintiff has submitted an expert declaration opining otherwise. "'. . . [W]hen the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.'" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776.)
Ewing does not dispute that the County made the requisite showing on its summary judgment motion, such that the burden shifted to Ewing to "present admissible evidence that a triable issue of material fact exist[ed]" as to each element of her causes of action. (Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1414.) Nor does she dispute that her opposition to the County's motion was limited to claims that the lack of visual cues or a guardrail at the accident site constituted a dangerous condition that contributed to the accident that resulted in her injuries. She does dispute, however, the trial court's conclusion that her experts' opinions on these subjects were speculative and lacked foundation, as well as the court's conclusion that Solomon was not qualified to render an opinion on those issues.
The trial court "exercises discretion when ruling on the admissibility of expert testimony under Evidence Code section 801, subdivision (b). If the court excludes expert testimony on the ground that there is no reasonable basis for the opinion, we review the exclusion of evidence under the abuse of discretion standard." (In re Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) "'It is [also] for the trial court to determine, in the exercise of sound discretion, the competency and qualification of an expert witness to give his opinion in evidence [citation], and its ruling will not be disturbed upon appeal unless of manifest abuse of that discretion is shown. [Citations.]'" (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701.)
We conclude that the trial court did not abuse its discretion in sustaining the County's objections to the declarations of Ewing's experts. As the County correctly notes, both experts failed to credit Crandall's testimony that she was well aware of the curve, as well as Berner's opinion that accidents involving impact with a guardrail are, on average, more severe than accidents such as this one in which a vehicle travels over an embankment. Moreover, neither expert referred to any experience, training, resources, or theories that are generally accepted by traffic engineering experts and relied on by them in opining that the curve either created a dangerous condition or contributed to the accident. Under the circumstances, their opinions that visual cues or a guardrail would have prevented the accident are pure speculation. "'[W]here an expert bases his conclusion upon . . . factors which are speculative, remote or conjectural, . . . the expert's opinion cannot rise to the dignity of substantial evidence.'" (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487.) "[E]xpert opinion resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a '"reasonably probable causal connection"' between the defendant's negligence and the plaintiff's injury." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 775, citing Leslie G., at p. 487.) "'A mere possibility of such causation is not enough; . . . when . . . the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.'" (Saelzler, at pp. 775-776; Leslie G., at p. 484.)
The court also properly exercised its discretion in sustaining the County's objections to Solomon's opinions on the ground that he had failed to demonstrate he was qualified to render them. Solomon stated facts indicating that he was qualified to render opinions on traffic engineering regarding the use and effectiveness of visual cues at the accident site. Because he failed to explain how his experience in accident reconstruction qualified him to render such opinions, the court did not abuse its discretion in rejecting those opinions. (Evid. Code, § 801, subd. (b); Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487.)
Ewing also complains that the trial court erred in relying on the absence of prior accidents in concluding that the proffered evidence was insufficient as a matter of law to establish a dangerous condition. In fact, the court found that "the lack of any similar accidents resulting from any of the claimed dangerous conditions certainly reinforces the conclusion that [the] County is entitled to judgment." In other words, the court concluded that the opinion evidence was insufficient and that the absence of "similar accidents" added to that conclusion. The absence of prior accidents is probative of notice and failure to warn of a dangerous condition. (See, e.g., Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 237.) The fact that more than 400,000 vehicles drove through the subject curve in the 10 years prior to the accident evidences that the County had no obligation to warn drivers of the curve or install a guardrail to prevent any over-embankment accidents. Ewing points to one prior accident on Drum Canyon Road and one complaint of speeding, neither of which are factually related to the location of Ewing's accident and are thus of no moment.
CONCLUSION
Once the opinions of Ewing's experts were stricken, the trial judge was left with facts evidencing that the driver of the truck in which Ewing was injured—either for no apparent reason or because she belatedly saw a deer in the dark—swerved off the road and over the embankment. Whatever the cause of the accident may ultimately be determined to be, Ewing failed to offer any facts or opinions from which a trier of fact could find that it was attributable to the County's design or maintenance of the road. There was no material fact supportive of Ewing's theory. The County was thus entitled to summary judgment.
The judgment is affirmed. The County is entitled to its costs on appeal.
We concur: GILBERT, P.J. COFFEE, J.