Opinion
A159306
07-28-2021
JOHANNA FORMAN, Plaintiff and Appellant, v. CITY OF OAKLAND, Defendant and Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG16825793
BROWN, J.
The trial court granted the City of Oakland's summary judgment motion and entered judgment on plaintiff Johanna Forman's complaint for maintaining a dangerous condition of public property under Government Code section 835. Plaintiff sought to hold Oakland liable for injuries she suffered when a driver, Laquita Houston, hit Forman with her car in a crosswalk. Forman appeals, arguing she provided sufficient evidence of a triable issue of material fact concerning whether the intersection was dangerous and proximately caused her injuries. We conclude the trial court correctly granted summary judgment and affirm the judgment.
Undesignated statutory references are to the Government Code.
BACKGROUND
College Avenue in Oakland is a major arterial running north-south with one lane in each direction. Miles Avenue is a one-way street, with two lanes running from east to west at its intersection with College Avenue. An off-ramp from Highway 24 merges with Miles Avenue one-third of a mile to the east of the intersection. A middle school occupies the northeast corner of the intersection of College Avenue and Miles Avenue, and a BART station sits at the southeast corner. A traffic light controls vehicular traffic at the intersection. The traffic light has two phases, alternating between College Avenue and Miles Avenue traffic. There are painted yellow crosswalks with pedestrian signals on all four corners of the intersection. Pedestrian signals follow the same phases as the traffic lights, so pedestrians waiting to cross College Avenue receive a walk indication at the same time that westbound Miles Avenue traffic receives a green light. Because Miles Avenue is one-way, westbound drivers can turn left without concern for any oncoming traffic.
One evening in July 2015, at around 7:30 PM, Forman was waiting at this intersection to cross College Avenue. After Forman received a walk signal, she looked for cars coming from either direction. Seeing none, she proceeded to cross the street, heading west.
At the same time, Houston was driving westbound on Miles Avenue. She stopped at the intersection when the light was red. When the light turned green, she began to turn left on southbound College Avenue. Houston's vehicle struck Forman from behind, tearing the skin on Forman's foot, injuring the meniscus of her knee, and fracturing her elbow. From the time she arrived at the red light until she struck Forman, Houston looked only straight ahead at the traffic light and never looked to her left or observed the crosswalk.
When Houston stopped and checked on Forman, Forman asked her what happened. Houston responded, “Well, we both had the green light.” A police officer arrived at the intersection after the incident and concluded that Houston's failure to yield to Forman caused the accident. Houston agreed with that assessment.
Forman filed suit against Oakland in August 2016. In her operative complaint, Forman alleged, as relevant here, that Oakland was liable under Government Code section 835, subdivision (a) for having a dangerous condition of property caused by negligence of a public employee, and under subdivision (b) for having a dangerous condition of property of which it had notice. Oakland moved for summary judgment on the grounds that the undisputed evidence showed that the city was not liable because (1) Houston's negligence was the sole and proximate cause of Forman's injuries, (2) the intersection was not dangerous as a matter of law, (3) Oakland had no notice of a dangerous condition, (4) Oakland did not negligently create a dangerous condition, and (5) the city was protected by design immunity under Government Code section 830.6. The trial court granted Oakland's motion because it found the undisputed evidence showed that the alleged dangerous conditions were not proximate causes of Forman's injuries and that the timing and nature of the traffic signals was not dangerous as a matter of law. The trial court did not address the city's other theories.
Forman previously sued Houston in a separate action. Forman accepted a $15,000 settlement and her complaint against Houston was dismissed. In the present case, Oakland filed a cross-complaint against Houston seeking indemnity, contribution, and declaratory relief. The trial court later denied Houston's application for determination of good-faith settlement. Oakland later dismissed its cross-complaint against Houston.
DISCUSSION
“We review the grant of summary judgment de novo and decide independently whether the parties have met their burdens and whether there are triable issues of material fact. [Citation.] The defendant has the initial burden on summary judgment to show that undisputed facts establish an affirmative defense. [Citation.] Once the defendant meets that burden, the burden shifts to the plaintiff to show a triable issue of material fact regarding the defense. [Citation.] We review the evidence in the light most favorable to the plaintiff.” (Filosa v. Alagappan (2020) 59 Cal.App.5th 772, 778.) We review the trial court's result and not its reasoning, so we must affirm the trial court's ruling if there is any correct legal reason to sustain it. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1347; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.)
Oakland's liability for Forman's injuries, if any, “is defined by statute, specifically the portion of the Government Claims Act entitled Liability of Public Entities and Public Employees. (Gov. Code, §§ 814-895.8, added by Stats. 1963, ch. 1681, § 1, pp. 3266-3284; [Citation].) These statutes declare a general rule of immunity (Gov. Code, § 815) and then set out exceptions to that rule. [Forman] invokes the exception for a dangerous condition of public property, as set out in Government Code section 835.... As there laid out, the cause of action consists of the following elements: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758, fn. omitted.) We conclude that Forman fails to raise a triable issue of fact supporting her claim that the intersection was dangerous, so we limit our discussion to that element.
Section 830, subdivision (a) 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.” “Determining whether a dangerous condition exists for which a public entity may be held liable is a complex question. The development of the law rests on varied fact patterns. It also rests on legal vocabulary which is at times drawn broadly and at times narrowly. It is no simpler where, as here, third party liability is involved. However, as the Supreme Court has noted: ‘ “[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.]' (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1134 (Zelig).) ‘ “If the risk of injury from third parties is in no way increased or intensified by any condition of the public property... courts ordinarily decline to ascribe the resulting injury to a dangerous condition of the property. In other words, there is no liability for injuries caused solely by acts of third parties. [Citations.] Such liability can arise only when third party conduct is coupled with a defective condition of property.”' ” (City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 28-29.)
“The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” (Zelig, supra, 27 Cal.4th at p. 1133.) Section 830.2 makes this clear by providing that “[a] condition is not a dangerous condition within the meaning of this chapter 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.” The law revision comment to this section acknowledges that it is technically unnecessary because courts ordinarily review the sufficiency of the evidence of a dangerous condition of property. (Cal. Law Revision Com., West's Ann. Gov. Code (2021 ed.) foll. § 830.2.) But the statute was intended “to emphasize 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.” (Ibid.) “ ‘This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.' ” (Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 482.)
Forman contends that an amalgam of three factors combined to make the intersection of Miles Avenue and College Avenue unusual and dangerous. (See Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1476 [amalgam of factors can create a dangerous condition].) First, she highlights the high volume of traffic on Miles Avenue coming from Highway 24 and the heavy pedestrian and bicycle traffic going to and from the middle school and BART station on two corners of the intersection. Second, she points to the fact that Miles Avenue is one-way, so that drivers turning left onto College Avenue are closer to pedestrians in the crosswalk on the south side of the intersection than they would be if Miles Avenue were two-way. To oppose Oakland's summary judgment motion, Forman submitted an expert declaration from Dale Dunlap, a civil and transportation engineer, opining that this reduces the time before a vehicle will encroach on the south crosswalk. Dunlap stated that this condition is unusual for drivers, who do not expect pedestrians to be walking so closely to the left side of their vehicles. According to Dunlap, “[i]n this position the pedestrian may be hidden by the vehicle's ‘A'-pillar.” Third, Forman identifies the simultaneous signals for pedestrians and vehicles on Miles Avenue as contributing to the danger. She contends the simultaneous signal did not allow pedestrians enough time to establish their position in the south crosswalk before left-turning vehicles entered the crosswalk. We disagree and conclude none of these factors, alone or in combination, made the intersection dangerous.
Forman does not explain the meaning of this term, but we interpret it as referring to the pillar at the driver's side front corner of a vehicle where the windshield meets the forward edge of the driver's side window.
Forman's first argument that the volume of traffic at the intersection adds to the danger is unpersuasive. Courts have long held that traffic volume does not make a road dangerous. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7 [“the heavy use of any given paved road alone does not invoke the application of Government Code section 835”]; accord, Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 441.)
Moreover, the conditions of the intersection are not unusual. Neither left turns from one-way streets nor simultaneous pedestrian and vehicle signals are uncommon, and Forman offers no evidence to the contrary beyond Dunlap's bare assertion that drivers do not expect to encounter pedestrians on the left sides of their vehicles. As the trial court pointed out, accepting Forman's argument that a left turn from a one-way street with simultaneous pedestrian and vehicle signal timing makes an intersection unusual and dangerous would mean that every such intersection in the state is dangerous. In response, Forman contends only that a problem does not become less of a problem merely because it is widespread. But the linchpin of Forman's argument that the intersection is a problem in the first place is the intersection's purported rarity. The fact that similar intersections are widespread and Forman's failure to present any evidence to the contrary refutes the contention that these intersections are problems at all, since it directly undermines Dunlap's assertion that drivers at such intersections are surprised by the proximity of pedestrians to the left sides of left-turning vehicles. Because such conditions are not unusual, drivers operating their vehicles with due care-i.e., in a manner consistent with the statutorily-imposed obligation to yield to pedestrians (Veh. Code, §§ 21451, subd. (a); 21950)-can be expected to anticipate and look for pedestrians in these situations.
Forman states that her expert's declaration regarding dangerousness was uncontradicted, which she contends is sufficient to preclude summary judgment. However, an expert declaration is not sufficient to defeat summary judgment where, as here, the declaration fails as a matter of law to demonstrate that a condition is dangerous. (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189 [“expert opinions on whether a given condition constitutes a dangerous condition of public property are not determinative: ‘[T]he 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,' ”].)
It makes no difference that pedestrians may be obscured by a vehicle's A-pillar. Forman cites various cases holding that sight obstructions at intersections can create dangerous conditions, but all those cases involved obstructions affecting the intersection itself. (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1537-1538 [shadows and pillars from overhead highway obstructed sight lines]; Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838, 841 [trees and sign on adjacent property obstructed the view of a driver approaching the intersection]; Erfurt v. California (1983) 141 Cal.App.3d 837, 841-843 [overpass abutment in the middle of highway was dangerous when drivers approached it after cresting hill looking directly into sun].) A pillar in a vehicle is not part of an intersection. The driver of a vehicle can be expected to be familiar with any blind spots behind the vehicle's A-pillar and compensate for them. Dunlap's declaration also opined only that a pedestrian “may be hidden by the vehicle's A-pillar, ” which is speculative. Forman provided no concrete evidence of where such pillars would be positioned relative to drivers in vehicles and pedestrians in the crosswalk, presumably because the positioning of drivers, pillars, and pedestrians will vary based on the design of different vehicles and where the vehicles are positioned. The intersection does not pose a substantial risk of injury if the risk depends on the concatenation of such variable circumstances.
Nor does the simultaneous signal timing make the intersection dangerous, either on its own or in combination with the layout of the intersection. Forman argues that Oakland should have changed the signal timing to give pedestrians a head start (known as a leading pedestrian interval), given traffic a protected left turn, or used a “pedestrian scramble” control system to give pedestrians exclusive use of the intersection during one phase. Forman also suggests that the city should have installed a sign instructing drivers to yield to pedestrians. Forman's argument at its core seeks to hold Oakland liable for failing to provide a particular kind of traffic signal or sign. The Government Code forecloses such an argument, as Oakland cannot be held liable “merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code” (§ 830.4) or for “the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code” (§ 830.8). (See Frazier v. County of Sonoma (1990) 218 Cal.App.3d 454, 459 [§ 830.4 governs signals, signs, and markings of the “regulatory type, ” whereas § 830.8 governs those of the “warning type”].)
Forman points out that despite these provisions, if a public entity installs traffic signals and “invites public reliance upon them, it may be held liable for creating a dangerous condition in so doing.” (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 746.) She does not explain, however, how she or Houston relied on the existing signal timing or how the timing increased the danger, since she does not address how pedestrians and left-turning vehicles would have handled the intersection in the absence of a simultaneous pedestrian signal. This situation is unlike other cases in which traffic signals were dangerous because they invited public reliance, such as when a stop sign or pedestrian signal was hidden or obscured and thereby gave the false impression that other drivers would yield. (Id. at pp. 743, 745-746 [intersection where only one street had stop signs was dangerous where stop sign was hidden by tree and shrubbery]; Teall v. City of Cudahy (1963) 60 Cal.2d 431, 433-434 [traffic light designed to guide pedestrians in crossing street was not visible to pedestrians and plaintiff mistakenly thought opposing traffic light indicated it was safe to cross].)
Moreover, the intersection is a dangerous condition only if it poses a substantial risk of injury when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a); Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384 [“A condition is not dangerous within the meaning of [§ 830, subdivision (a)] ‘unless it creates a hazard to those who foreseeably will use the property... with due care' ”].) Simultaneous signaling poses a minor risk if drivers drive with due care, because, as noted, drivers are obligated to yield to pedestrians in any marked or unmarked crosswalk and reduce their speed to safeguard pedestrians' safety. (Veh. Code, § 21950, subds. (a) & (c); Cerna v. Oakland (2008) 161 Cal.App.4th 1340, 1351 [risk from failure to use specific colors for crosswalk markings was minor and insignificant because drivers were required to yield to pedestrians in any marked crosswalk].) Even if changing the signaling or adding a warning sign would have improved the safety of the intersection as Forman contends, that does not mean the simultaneous signal timing created or contributed to a substantial risk of injury if drivers proceed through the intersection with due care. (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 [“ ‘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)' ”].)
Forman admits that Houston was negligent but insists that the condition of the intersection nonetheless increased the risk of injury because Houston was not “intent on violating the law.” Forman's focus on Houston conflates the elements of dangerous condition and proximate causation. (See Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1106 [condition of property may proximately cause injury without being dangerous]; Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 702-704 [dangerousness is determined without regard to a specific incident].) And regardless of whether Houston was intent on violating the law, she admitted she only looked straight ahead at the traffic light, never looked to her left, and did not observe the crosswalk. Nothing in Houston's testimony indicates that the intersection would have contributed in any way to the accident if Houston had been driving with due care.
Forman next faults the trial court for ignoring a previous accident at the intersection that she contends is further proof that the intersection was dangerous. A plaintiff may use evidence of previous accidents to prove the existence of a dangerous condition, but before doing so the plaintiff must first show “that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question.” (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1072.) In the five years preceding Forman's injury, the only accident Forman contends was substantially similar was a September 2014 incident in which a driver turning left from Miles Avenue onto southbound College Avenue struck an individual on a skateboard proceeding toward the driver (east) in the crosswalk.
This accident does not show the intersection was dangerous in the way that Forman now contends. In the September 2014 accident, the pedestrian was heading east and so was further away, more visible to the driver, and not unexpectedly close to the left side of the driver's car. Besides, as Oakland argues, evidence of this one accident does not prove the intersection was dangerous in relation to the number of cars that pass through the intersection. Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 138, held that evidence of one prior similar accident at an intersection in the preceding five years did not prove the intersection was dangerous where between 2.8 and 3.5 million vehicles passed through the intersection each year. Here, around 8 million vehicles pass through the intersection of College Avenue and Miles Avenue each year. Forman has not pointed to any evidence that the rate of one accident in five years at an intersection with this volume of use was so high that the intersection was dangerous.
In sum, the trial court did not err in finding that Oakland was entitled to summary judgment because Forman had failed to show a triable issue of fact as to whether the intersection was a dangerous condition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: POLLAK, P. J., STREETER, J.