Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC443779. Bernard Schwartz, Judge.
Gilbert, Kelly, Crowley & Jennett, Peter J. Godfrey; Law Offices of Fred G. Glantz and Fred G. Glantz for Plaintiffs and Appellants.
Thompson & Colegate, Susan Knock Brennecke and John W. Marshall for Defendant and Respondent Yeager Skanska, Inc.
Murtaugh Meyer Nelson & Treglia and James A. Murphy for Defendant and Respondent Lim & Nascimento Engineering Corporation.
OPINION
Hollenhorst, Acting P.J.
This case arises from a serious automobile collision occurring when plaintiff, Cynthia Grammatico, turned left onto the eastbound Ramona Expressway (Expressway), at the T-intersection of Bridge Street and the Expressway, without stopping at the stop sign. As Cynthia entered the intersection, a westbound tractor-trailer rig, driven by defendant Carlos De La Garza, and owned by defendant Silly Transport, collided with Cynthia’s pickup truck. Cynthia, her 14-year-old son (Adam Grammatico) and her eight-year-old grandson were seriously injured. In consolidated actions, Cynthia, Adam, and Michael Grammatico, Cynthia’s husband, sued various defendants, including general construction contractor, Yeager Skanska, Inc. (Yeager), and Lim & Nascimento Engineering Corporation (LAN).
Plaintiffs Cynthia Grammatico, an incompetent person, and Adam Grammatico (hereinafter referred to collectively as plaintiffs) appeal from summary judgment granted in favor of defendants Yeager and LAN (collectively referred to herein as defendants). Plaintiffs contend the trial court erred in granting defendants’ summary judgment motions since there were triable issues of fact as to whether defendants owed and breached a duty of care, proximately causing plaintiffs’ injuries.
Michael Grammatico, Cynthia’s husband, who brought a separate, consolidated action for loss of consortium, is not a party to this appeal.
We conclude plaintiffs failed to cite any evidence raising a triable issue of fact and, therefore, the trial court properly granted both defendants’ motions for summary judgment.
1. Summary Judgment Standard of Review
In this appeal, plaintiffs challenge trial court rulings granting defendants’ separate motions for summary judgment. Since the two motions differ, we address each motion separately, beginning with Yeager’s motion.
The well-known principles generally governing appellate review of an order granting a motion for summary judgment are as follows: “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, ’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action....” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, citing Code Civ. Proc., § 437c, subd. (o)(2) & Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
2. Yeager’s Motion for Summary Judgment
A. Facts and Procedural Background
The following facts, included in Yeager’s motion for summary judgment statement of facts, were undisputed.
In several instances (fact Nos. 7, 11, 12, 22), plaintiffs objected to facts but did not cite any evidence refuting the facts. There was no ruling on the objections. We thus deem such facts undisputed. (Whitehead v. Habig (2008) 163 Cal.App.4th 896, 902; Code Civ. Proc., § 437c, subd. (b)(3).)
The Collision
This case arises from an automobile collision on November 19, 2004, about 1:55 p.m., at the intersection of Bridge Street and the Expressway, in Riverside County. Right before the collision, Cynthia was stopped in a line of cars on southbound Bridge Street. She intended to make a left turn onto the Expressway, headed eastbound. The Bridge/Expressway T-intersection was controlled by a stop sign on Bridge Street, with no traffic controls for the Expressway traffic. As Carlos De La Garza drove a freightliner tractor-trailer westbound on the Expressway, toward the Bridge/Expressway intersection, Cynthia accelerated her Ford pickup truck into the intersection, directly into the path of the tractor-trailer. Cynthia’s pickup truck and the tractor-trailer collided.
County construction engineer, Richard Call, witnessed the collision. Seconds before the collision, he noticed Cynthia’s vehicle stopped on Bridge Street, behind another vehicle stopped at the stop sign. Both cars accelerated simultaneously into the intersection, intending to turn left onto the Expressway. When Cynthia reached the stop sign, she did not stop.
Before the collision, De La Garza, the driver of the tractor-trailer, noticed that Cynthia was stopped behind the car in front of her, which was stopped at the stop sign, and within a second of the first car entering the intersection, Cynthia accelerated into the intersection without stopping at the stop sign.
Construction Work at the Intersection up to the Time of the Collision
On July 16, 2004, prior to the collision, Yeager and the County of Riverside (County) entered into a construction agreement relating to the construction of a portion of Gilman Springs Road, running northwest of Route 79 (the Gilman Springs project). In furtherance of the construction, the County provided Yeager, the general contractor on the project, with plans and specifications to be followed by Yeager.
Prior to the County contracting with Yeager, the County contracted with LAN, an engineering consulting firm, for the preparation of a detour and traffic management plan for the Gilman Springs project. A detour route was required to circumvent the portion of Gilman Springs Road under construction. LAN provided a detour plan redirecting traffic traveling eastbound on Gilman Springs Road, southbound onto Bridge Street, toward the Expressway. The Expressway runs parallel to Gilman Springs Road. LAN’s detour and traffic management plan was reviewed and accepted by the County. Yeager was not licensed or qualified to modify the project design plan and was not involved in its design or preparation.
In mid-to-late October 2004, after awarding Yeager the construction contract for the Gilman Springs project, the County issued change order No. 1, requiring Yeager to install a temporary traffic signal at the Bridge/Expressway intersection. There was no specified completion date for installation of the signal. Installation of the traffic signal was due to concerns about traffic at the intersection. According to Don Reiter, Yeager’s project manager for Phase II of the Gilman Springs Road project, completion of installation of the temporary traffic signal in about three weeks after issuance of the change order was early and in accordance with the County’s expectations. The signal, however, was not yet installed at the time of the subject collision.
Pursuant to change order No. 1, Yeager contracted Sudhakar Company International (Sudhakar) to provide striping removal and repainting work at the Bridge/Expressway intersection. Sudhakar was required to perform the work in accordance with the terms of the master agreement with the County. In the morning of November 19, 2004, before the subject collision, Sudhakar began striping work on the Expressway, in preparation for installation of the temporary traffic signal at the intersection. At the time of the collision, Sudhakar was working about 300 to 500 feet east of the intersection.
On the day of the collision, Sudhakar placed traffic cones and signs on the Expressway within 300 to 700 feet east and west of the intersection. The signs stated, “Flagmen Ahead, ” “Prepare to Stop, ” and “Road Construction Ahead, ” to control and direct traffic on the Expressway. At the time of the collision, to the east of the intersection, there were cones placed in the middle of the street, splitting the eastbound and westbound traffic. The cones were intended to slow down traffic on the Expressway.
During the morning of November 19, 2004, Yeager also performed work at the intersection in preparation for installation of the temporary traffic light. Yeager paved and repaired “alligator cracks at the northwest and northeast existing corner edges/shoulders outside the parameters of the subject intersection.” The work was not done in the traffic lanes on Bridge Street or the Expressway. At the time of the collision, Yeager had completed this work and was not performing any other work there. Yeager was removing “orange cones/delineators” placed earlier that day on the shoulder of the northeast corner of the intersection. The delineators were used to protect Yeager’s work, which was performed outside the intersection during the morning of November 19.
At the time of the collision, Yeager had not assumed control or management of the intersection. In addition, the County had not requested Yeager to provide flagmen at the intersection on November 19, 2004, and Yeager did not have any flagmen there at the time of the collision. At all relevant times, Yeager followed the Gilman Springs Project plans and specifications as set forth in the construction contract between Yeager and the County. Yeager complied with the terms and requirements of the contract.
County construction engineer, Richard Call, was present at the intersection during the morning of November 19, 2004, and at the time of the collision. Call worked in the County transportation department’s construction inspection section. His job responsibilities included observing the construction, enforcing contract specifications, and supervising County resident engineer, Jesse Mendoza. Mendoza was managing the Gilman Springs Road project. Mendoza was present at the intersection immediately prior to the collision. His job responsibilities included observing the construction, directing Yeager when necessary, and enforcing the specifications.
On November 19, 2004, prior to and at the time of the collision, Call observed that there were no lane closures and the capacity of the intersection was not impacted such that traffic needed to be flagged or piloted through the intersection. The decision to flag to relieve congestion is normally made by County traffic control people, such as Call. Call could have requested traffic control if required, but did not do so.
Plaintiffs’ Complaint
In January 2006, Cynthia and Adam filed a complaint against the County, Silly Transport, Carlos De La Garza, Sudhakar, and Yeager for general negligence, premises liability, and negligent design, installation, and maintenance of the Bridge/Expressway intersection. In the first cause of action for general negligence, plaintiffs alleged: “Defendants... negligently, carelessly and/or unlawfully caused a dangerous condition to exist which created a reasonably foreseeable risk for the kind of injuries which are hereinabove alleged; and defendants, and each of them, had actual knowledge of the existence of the condition and knew, or... should have known of its dangerous condition. Pursuant to Government Code Sections 830 & 835, a dangerous condition exists for reasons including, but not limited to, a lack of additional [sic] traffic control devices or flag persons at the subject intersection; a lack of traffic controls as a result of the high rates of speed on the Ramona Express Way [sic] not allowing for a gap for Bridge St. traffic to enter Ramona Express Way [sic] safely; a pattern of left turn accidents occurring at the subject intersection; and because slow moving traffic turning from Bridge onto Ramona requires additional time to clear the intersection without being struck by fast moving trucks traffic along the Ramona Express Way [sic].”
Plaintiffs alleged in the second cause of action for general negligence: “Defendants... negligently, carelessly or unlawfully failed to provide additional traffic control devices, proper signage and cones or flag persons at the subject intersection to direct traffic while the intersection was under construction.”
Yeager was not named as a defendant in the third cause of action for motor vehicle negligence. The fourth cause of action for premises liability contained the same allegations as those in the first cause of action. Plaintiffs further alleged that Yeager negligently owned, maintained, managed and operated the subject premises.
In November 2006, Michael Grammatico filed a complaint against Yeager and various other defendants for loss of consortium. The complaint alleged that as a result of the collision, Cynthia became, and remained since the time of the collision, comatose. Michael incorporated the allegations contained in Cynthia and Adams’s complaint. In January 2007, the complaints of Cynthia, Adam and Michael were consolidated.
In March 2007, plaintiffs added LAN as a Doe defendant to their complaint. Plaintiffs thereafter dismissed LAN from the second, third and fourth causes of action.
Summary Judgment Motions
In October 2007, Sudhakar filed a motion for summary judgment, which the court granted in March 2008. The trial court found that Sudhakar had no duty to plaintiffs and did not cause the collision. The court stated in its minute order that “the party that was responsible for undertaking this particular project was the County. And it is clear... that the decision to place flagmen at the location, ... was the County’s responsibility, because they had an engineer that was present, and they were responsible for the project.” In the court’s written order signed on March 24, 2008, the court stated that Sudhakar “had no duty regarding the intersection... at the time of the subject automobile accident, had no control of the intersection... and that the actions of Sudhakar... were unrelated to the occurrence of the subject automobile accident.”
In February 2008, Yeager and LAN each filed separate motions for summary judgment.
Yeager argued in its summary judgment motion that plaintiffs could not establish negligence because Yeager followed the plans and specifications set forth in the contract between Yeager and the County. Yeager asserted plaintiffs failed to provide any evidence that Yeager’s acts and or omissions were a legal or proximate cause of plaintiffs’ injuries. Yeager was not involved in the design or preparation of the detour and traffic management plan, and was not involved in the original design or construction of the intersection.
In addition, Yeager argued it did not assume control or management of the intersection and was not contractually obligated to provide traffic controls at the intersection. At the time of the collision, Yeager was not working at the intersection. Yeager further noted there was evidence that Cynthia caused the collision by failing to stop at the stop sign and by accelerating into the intersection, into the path of the tractor-trailer.
Yeager relied on the following evidence in support of its summary judgment motion: (1) Declaration of Don Reiter, Yeager’s project superintendent; (2) Deposition of Richard Call, County construction engineer; (3) Yeager’s subcontract work order with Sudhakar; (4) Deposition of Lawrence Tai, County traffic engineer; (5) Deposition of Enrique Sanjuan, a Yeager employee; (6) Deposition of Alvaro Guillermo, a Sudhakar foreman; (7) Deposition of Rob Simmons, a Sudhakar laborer; (8) Deposition of Officer Williams; (9) Deposition of Carlos De La Garza; and (10) Reporter’s transcript of Sudhakar’s summary judgment motion proceedings.
Opposition to Summary Judgment Motion
Plaintiffs filed opposition to Yeager’s summary judgment motion. Plaintiffs argued in their opposition that, as the general contractor for installation of the traffic signal at the intersection, Yeager had a duty of care to the public, separate from and in addition to its contractual obligations. Yeager breached that duty by not providing additional traffic controls when, prior to and at the time of the collision, there was a dangerous traffic backup condition on Bridge Street, at the intersection.
Plaintiffs further argued Yeager was responsible for the control of traffic at the intersection; that a dangerous condition was created by the construction at the intersection; and that Cynthia’s view was obstructed by construction equipment, thereby causing the collision.
Plaintiffs noted that Sudhakar had provided flagmen at the intersection earlier in the day but removed them prior to the collision. Plaintiffs argued a triable issue of fact existed as to whether Yeager had a separate, independent duty, apart from that of the County, to provide appropriate traffic controls. Plaintiffs asserted that, under such duty, Yeager should have had flagmen present at the intersection at the time of the collision. Yeager, as the general contractor, was responsible for the dangerous condition regardless of whether Yeager or Yeager’s subcontractor, Sudhakar, created it.
Plaintiffs also argued there was a triable issue of fact as to whether Yeager was independently liable for obscuring the view of southbound Bridge Street traffic by parking construction equipment along the northeast shoulder of the Expressway, as noted in the declaration of engineer, Richard Grossman. In support of plaintiffs’ opposition, plaintiffs provided a declaration by traffic engineer, Edward Ruzak.
Plaintiffs’ response to Yeager’s statement of undisputed material facts added the following two additional “facts, ” which plaintiffs claimed were undisputed: (1) Yeager should have had flagmen at the accident scene during construction of the temporary traffic signal; and (2) Yeager was responsible for providing flagmen and for ensuring the safety of the public at the intersection.
Yeager filed a reply to plaintiffs’ opposition and disputed facts, asserting that plaintiffs had failed to cite any evidence disputing Yeager’s statement of undisputed facts or raising any additional material undisputed facts.
Trial Court Hearing on Yeager’s Summary Judgment Motion
After several continuances, the court heard Yeager’s summary judgment motion on February 24, 2009. Citing Paz v. State of California (2000) 22 Cal.4th 550 (Paz), the trial court stated that its tentative ruling was to grant summary judgment because Yeager did not create or increase the dangerous condition at the Bridge/Expressway intersection. It was preexisting. Yeager undertook to install a traffic control signal at the intersection, and this did not create a duty owed to third persons, such as the Grammaticos.
The trial court added that under Yeager’s contract with the County, Yeager did not assume control or management of the intersection. The County had a duty to control the intersection. The County did not request Yeager or any other party to provide flagmen at the intersection on the day of the collision. Also, there was no evidence that the failure to provide flagmen at the intersection increased the risk of harm to motorists at the intersection. Therefore plaintiffs failed to raise a triable issue of material fact.
After hearing oral argument, the trial court granted Yeager’s summary judgment motion, noting that the County, not Yeager, controlled the intersection. The court concluded that, based on the circumstances of the collision and Yeager’s limited work at the intersection, any duty of care to provide traffic controls at the intersection at the time of the collision did not extend to Yeager. The court reiterated in its written statement of decision essentially the same reasoning the court stated in its tentative ruling on the motion.
B. Duty to Provide Traffic Controls at the Intersection
Plaintiffs alleged in their complaint against Yeager that Yeager was negligent in causing a dangerous condition. The dangerous condition allegedly consisted of a lack of additional traffic control devices, flagmen, proper signage, and cones at the intersection during installation of a temporary traffic signal. Additional traffic controls were allegedly needed during the construction because traffic on the Expressway travelled at high rates of speed, not allowing for a sufficient gap required for Bridge Street traffic to enter the Expressway safely. Additional traffic controls, such as flagmen, would slow down Expressway traffic to allow traffic turning from Bridge onto the Expressway additional time to clear the intersection without being struck by fast moving truck traffic on the Expressway. Plaintiffs alleged there had been a pattern of left turn accidents at the intersection.
Plaintiffs argue that, as general contractor, Yeager had a duty to provide additional traffic controls, such as flagging, during installation of the traffic signal. Generally, “ ‘ “[a] highway contractor doing work on a public highway or street owes to the traveling public the duty of protecting it from injury that may result from his negligence” ’ [citations] and is under ‘a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions.’ ” (Thirion v. Fredrickson & Watson Const. Co. (1961) 193 Cal.App.2d 299, 304-305 (Thirion), quoting Breslin v. Fredrickson (1957) 152 Cal.App.2d 780, 786 (Breslin).)
This duty “applies even when the contractor has performed his work properly and the hazard is created by conditions immediately adjacent to the roadway upon which the contractor worked. [Citation.]... ‘The contractor’s responsibility [is] not limited to dangerous conditions within the scope of his own work while he [is] in control of the job site. He [is] under a duty to protect the public against dangerous conditions existing where the public in rightful use of the roadway might encounter such conditions.’ [Citation.]” (Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1134 (Ray), quoting Breslin, supra, 152 Cal.App.2d at p. 786.)
Here, the issue is whether Yeager had a duty to provide any traffic controls, such as flagmen, at the time of the collision. The County had contracted with Yeager to install a temporary traffic signal at the intersection. In preparing to install the signal, on the day of the collision, Yeager worked in the morning on the northeast shoulder of the Expressway, filling cracks for the purpose of creating a westbound, right-hand turn lane off of the Expressway, onto Bridge Street.
County Director of Transportation, George Johnson, testified at his deposition that he “would expect that the contractor would have some sort of flagging operation for traffic during the construction.” Johnson stated several reasons why he would expect this: “One is to control traffic while they are out there doing the construction and for the safety of his own crews as well as the traveling public. [¶]... Another reason is that when there are gaps in the construction activity, then they could move the vehicles through the intersection. [¶] Without that manual operation, it would just be left up to the motorist, and it would not operate as well.”
Johnson was shown the “Traffic Control Plan, General Notes, ” which stated in part, “It is the responsibility of the contractor performing work on a public street to install and maintain the traffic control devices as shown herein as well as any such additional traffic control devices as may be required to ensure the safe movement of traffic and pedestrians through or around the work area and provide maximum protection and safety to construction workers.” Johnson stated that, as general contractor, Yeager was responsible for adhering to these requirements during construction.
In addition, Richard Grossman, plaintiffs’ engineering expert, noted in his declaration that the introduction to chapter 5 of the State of California, Department of Transportation’s (Caltrans) “Traffic Manual, ” entitled “Traffic Controls for Construction and Maintenance Work Zones, ” stated: “It is the responsibility of the Contractor or Organization performing work on, or adjacent to, a highway to install and maintain such devices which are necessary to provide passage for the traveling public (including pedestrians and bicyclists) through the work, as well as for the safeguard of workers.”
Vehicle Code section 21367, subdivision (a), further provides: “As provided in Section 125 of the Streets and Highways Code and in Section 21100 of this code, respectively, the duly authorized representative of the Department of Transportation or local authorities, with respect to highways under their respective jurisdictions, including, but not limited to, persons contracting to perform construction, maintenance, or repair of a highway, may, with the approval of the department or local authority, as the case may be, and while engaged in the performance of that work, restrict the use of, and regulate the movement of traffic through or around, the affected area whenever the traffic would endanger the safety of workers or the work would interfere with or endanger the movement of traffic through the area. Traffic may be regulated by warning signs, lights, appropriate control devices, or by a person or persons controlling and directing the flow of traffic.” (Italics added.)
Sudhakar, which Yeager subcontracted to do striping in connection with the installation of the traffic signal, provided three flagmen at the intersection during the morning, before the collision. Sudhakar withdrew the flagmen prior to the collision because, according to Sudhakar foreman, Alvaro Guillermo, about an hour or 45 minutes before the collision, Sudhakar was off the road, having completed a substantial portion of its work. There remained on the Expressway construction warning signs, which Sudhakar had provided in connection with its striping work, and there were cones delineating the boundaries of the east and westbound Expressway lanes, because the lanes were moved six feet south of their original location.
Sudhakar’s subcontract with Yeager stated that Sudhakar would provide traffic control in connection with its work. Before hearing Yeager’s summary judgment motion, the trial court granted Sudhakar’s motion for summary judgment, which was brought on essentially the same grounds as Yeager’s motion.
Yeager argues that it is undisputed that at the time of the collision, it had no duty to provide traffic controls, such as flagmen, at the intersection. Rather, the County was responsible for providing such controls, particularly since supervising construction engineer, Richard Call, was present at the intersection during the morning of November 19, 2004, and at the time of the collision. County resident engineer Jesse Mendoza, who was managing the Gilman Springs Project under Call’s supervision, was also present during the morning of November 19. Prior to the collision, Call did not request Yeager to use flagmen at the intersection, after Call inspected the intersection that morning.
Even though the County and Sudhakar were responsible for providing adequate traffic controls at the intersection during the construction, this did not necessarily absolve Yeager of the duty also to provide traffic controls, if needed, while performing construction at the intersection. Nevertheless, plaintiffs have failed to provide any evidence that, at the time of the collision, Yeager had a duty to provide additional traffic controls, such as flagmen, at the intersection, since it was undisputed that, prior to the collision, Yeager had finished working for the day at the intersection.
At the time of the collision, Yeager was in the process of removing cones and lane delineators that were placed earlier in the day on the northeast shoulder of the intersection, off the road. The delineators were used to protect Yeager’s work, performed outside the intersection during the morning on November 19, 2004.
In plaintiffs’ response to Yeager’s statement of undisputed facts, plaintiffs did not cite any evidence refuting that, “[a]t the time of the incident, Yeager had completed its work, and was not performing any construction work at the subject intersection or at Ramona Expressway.” Plaintiffs merely objected to the statement on the ground it was a legal conclusion and issue for the jury. However, on appeal, plaintiffs cite Officer Williams’s deposition testimony that Yeager supervisor, Enrique Sanjuan, confirmed that Yeager was working on the northeast shoulder east of Bridge Street, at the time of the collision. Sanjuan did not specify what Yeager was doing.
Call’s deposition testimony, also cited by plaintiffs, stated: “Yeager’s crews had completed their work and were removing the cones from the north side of the Ramona Expressway, paving was all done.” Call added that he also “didn’t see any striping going on right at that moment.” Such activity would not have required flagman.
Plaintiffs acknowledge in their appellate opening brief that Call stated that, at the time of the collision, Yeager had completed its work and was removing cones from the north side of the Expressway. Plaintiffs nevertheless claim this establishes that Yeager was “active in the intersection, at the time of the accident.” Yeager may have been “active” but it is undisputed that Yeager was done with its work at the time of the collision, other than removing cones that were outside the traffic lanes.
Call also testified that on November 19, 2004, prior to and at the time of the collision, he observed that there were no lane closures and the capacity of the intersection was not impacted such that traffic needed to be flagged or piloted through the intersection. The decision to flag to relieve congestion was normally made by County traffic control, such as Call. Call could have requested traffic control if required, but did not do so.
The work Yeager performed did not in any way interfere with or change the preexisting traffic flow or safety at the intersection. It thus is undisputed that Yeager did not breach any duty to provide traffic controls. Not only did Yeager not perform any construction in the intersection traffic lanes but, in addition, prior to the collision, Yeager had not altered the intersection in such a way as to increase the risk of harm to drivers, such as Cynthia. (Paz, supra, 22 Cal.4th at p. 560.)
Even assuming Yeager, as the general contractor, had a duty to provide traffic controls while performing construction at the intersection, the instant case is controlled by principles set forth in Paz, supra, 22 Cal.4th 550, and those principles provide that, as a matter of law, under the undisputed facts, Yeager cannot be found liable to plaintiffs for negligence.
In Paz, supra, 22 Cal.4th 550, the plaintiff, who was injured in a traffic accident at an intersection controlled by a stop sign, argued the intersection was dangerous because sight lines were obstructed. (Id. at p. 553.) Defendant Stoneman Corporation (Stoneman) was required to design and install traffic signals at the intersection as a condition of approval of a condominium development project. Stoneman in turn hired defendant Katz, Okitsu & Associates (KOA) to design the traffic signals and striping plan and obtain necessary permits for the installation. Three years later, at the time of the plaintiff’s accident, KOA had not yet obtained the necessary permits or installed the traffic signals. The plaintiff in Paz alleged the defendants had negligently delayed installing the traffic signals, which would have eliminated the dangerous condition at the intersection. (Id. at pp. 553-555.) The trial court granted summary judgment in favor of the defendants, but the appellate court reversed, holding that the defendants were required by contract to provide traffic signals at the intersection; they had a duty to motorists to install those signals in a reasonable and timely manner; and because of their failure to do so, the preexisting dangerous condition contributed to the plaintiff’s injuries. (Id. at p. 554.)
The California Supreme Court in Paz reversed, holding, “A contract for a public project does not create a general duty to third persons that gives rise to negligence liability, with respect to an allegedly dangerous condition the contract work may correct, if the requirements for application of [Restatement Second of Torts, ] section 324A [hereafter, section 324A] are not otherwise satisfied.” (Paz, supra, 22 Cal.4th at p. 554, italics added.) The court explained, “Section 324A prescribes the conditions under which a person who undertakes to render services for another may be liable to third persons for physical harm resulting from a failure to act with reasonable care. Liability may exist if (a) the failure to exercise reasonable care increased the risk of harm, (b) the undertaking was to perform a duty the other person owed to the third persons, or (c) the harm was suffered because the other person or the third persons relied on the undertaking.” (Id. at p. 553.)
The Paz court observed that “[s]ection 324A’s negligent undertaking theory of liability subsumes the well-known elements of any negligence action, viz., duty, breach of duty, proximate cause, and damages, ” and that the existence of duty is a question of law to be resolved by the court. (Paz, supra, 22 Cal.4th at p. 559.) The court continued, “ ‘To say that someone owes another a duty of care “ ‘is a shorthand statement of a conclusion, rather than an aid to analysis in itself.... “[D]uty” is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ [Citation.]” [Citation.] “[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” [Citation.]’ [Citation.]” (Ibid.)
Even assuming that for purposes of argument Yeager undertook the tasks that Yeager allegedly negligently performed, i.e., providing additional traffic controls, such as flagging, none of the three conditions required for liability under section 324A is present.
The first condition required for such liability under section 324A, subdivision (a), is satisfied if Yeager’s conduct increased the risk of physical harm to plaintiffs beyond that which already existed. (Paz, supra, 22 Cal.4th at p. 560.) Here, no such showing was made. The dangerous condition alleged in the complaint was preexisting. The dangerous condition was due to the Gilman Springs Road project and the traffic detour. This was why the County contracted Yeager to install a temporary traffic signal at the intersection. It is undisputed that Yeager’s construction work, patching cracks on the northeast shoulder of the intersection, as well as Sudhakar’s striping work, did not increase the risk of harm to the public, including plaintiffs.
The second condition for negligence liability under section 324A, subdivision (b), is satisfied if Yeager undertook to perform a duty another person owed to third persons. (Paz, supra, 22 Cal.4th at p. 560.) Here, plaintiffs failed to establish that Yeager undertook such a duty. Yeager undertook to install a temporary traffic signal for the County. There is no evidence Yeager undertook to provide traffic controls at the intersection, such as flagging, when not performing any construction work at the intersection. Even assuming for purposes of argument the County owed a duty to third persons to provide necessary traffic controls at the intersection, as discussed ante, it is undisputed Yeager had no duty to provide additional traffic controls, such as flagmen, at the intersection at the time of the collision because Yeager was not working at the intersection at the time of the collision.
The third condition for liability under section 324A, subdivision (c), is satisfied if “the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz, supra, 22 Cal.4th at p. 560.) Here, plaintiffs have failed to establish that plaintiffs relied on Yeager’s undertaking to provide additional traffic controls. Thus, under Paz, Yeager could not be found liable for negligence.
Plaintiffs cite Breslin, supra, 152 Cal.App.2d 780, Vinson v. Ham Bros. Constr., Inc. (1970) 7 Cal.App.3d 990 (Vinson), and Thirion, supra, 193 Cal.App.2d 299 for the proposition that Yeager, as the general contractor, owed a duty to the public to ensure safe movement of traffic and to install adequate warning devices to warn the public of any dangerous conditions existing during installation of the temporary traffic signal at the intersection. Plaintiffs’ reliance on these cases is misplaced. In Breslin, the defendant contractor repaved a road resulting in a sudden drop of as much as six inches from the road to the shoulder, with no warning signs or safety devices. The plaintiff in Breslin was killed when one of her vehicle’s wheels left the road, causing the plaintiff to lose control of her car, when it dropped off the road. (Breslin, supra, 152 Cal.App.2dat p. 783.)
In Breslin, supra, 152 Cal.App.2d 780, the court stated that, even though the state was protected by sovereignty from liability, it nevertheless had a duty to use care in making and keeping the road safe for public use. (Id. at p. 784.) This duty of care was contractually cast upon the defendant contractors performing the road repairs, until formal acceptance of the work by the state Director of Public Works. (Id. at pp. 783-785.)
In the instant case, the record does not include a copy of the contract between the County and Yeager regarding installation of the temporary traffic signal. There is thus no evidence that Yeager was contractually responsible for providing traffic controls at the intersection during installation of the traffic signal. However, there are “Traffic Control Plan General Notes, ” which state that “it is the responsibility of the contractor performing work on a public street to install and maintain the traffic control devices... as well as any such additional traffic control devices as may be required to insure the safe movement of traffic and pedestrians through or around the work area and provide maximum protection and safety to construction workers.”
In Breslin, supra, 152 Cal.App.2d 780, the issue was whether at the time of the accident, the contractor owed the public a duty of care, since the contractor had completed its work. Although the state supervisory engineer had inspected and recommended acceptance of the contractor’s work as satisfactory and complete, there was no formal acceptance of the contractor’s work prior to the accident. (Id. at pp. 782-783.) As a consequence, the court in Breslin held that, even though the contractor had completed its work, it remained responsible for warning the public of any dangerous conditions created by its work until formal acceptance of the work, as required pursuant to contract. (Id. at pp. 786, 789.) In Breslin, the contractorwas potentially liable because, unlike in the instant case, the contractor left the resurfaced highway “dangerous for use until further work had been done to render it safe.” (Id. at p. 787; see also Thirion, supra, 193 Cal.App.2dat p. 308.)
Breslin is distinguishable in that in the instant case, Yeager did not create a dangerous condition that proximately caused the plaintiffs’ injuries. Unlike in Breslin, Yeager did not create a construction defect causing plaintiffs’ injury. Yeager did not leave the roadway dangerous for use until further work was done to render it safe. (Breslin, supra, 152 Cal.App.2dat p. 787.) There also was no contractual provision that Yeager remained responsible for the condition of the road and any repairs or construction until formal acceptance of Yeager’s work.
Vinson, supra, 7 Cal.App.3d 990is also distinguishable in that the plaintiff was injured when he drove his motorcycle westbound through a barricade and into an open ditch, which the defendant contractor had excavated across the entire westbound lane. (Id. at pp. 994-995.) The trial court granted the contractor and city’s motion for directed verdict on the ground there was insufficient evidence supporting negligence liability. On appeal, the Vinson court reversed, holding there were triable issues as to negligence and whether the construction company used due care and provided adequate protective devices and warnings to protect the public from the obstruction it had created. (Id. at pp. 996-997.)
In reaching its holding, the Vinson court noted that “[t]he right to obstruct a public street to construct necessary public improvements carries with it a corresponding duty to erect adequate barriers, lights and warning devices to protect those who travel the street from injury. ‘When erected, the sufficiency of these barriers, or lights or other warning signals is a question of fact for jury determination.’ ” (Vinson, supra, 7 Cal.App.3d at p. 996, quoting Stockton Auto Co. v. Confer (1908) 154 Cal. 402, 406.)
Here, plaintiffs did not provide any evidence that Yeager’s work filling cracks on the northeast and northwest corners of the intersection created a dangerous condition and, therefore, there was no duty to provide any traffic controls or protective devices at the intersection, particularly after Yeager completed its work for the day. Furthermore, there is no evidence that Yeager’s work caused or contributed to the collision.
Thirion, supra, 193 Cal.App.2d 299likewise is distinguishable. In Thirion, the court held there was a triable issue as to whether the defendant contractor was negligent in depositing wet loose gravel on the highway and whether this proximately caused the plaintiff to lose control of her car and drive off the road, hitting a ditch and tree. (Id. at pp. 301-302.) The Thirion court concluded that a jury could have reasonably found that the wet gravel deposited on the highway constituted a dangerous condition exposing the driving public to danger, and that such negligence proximately caused the plaintiff’s injuries. (Id. at pp. 306, 309.)
Here, it was undisputed that Yeager’s work filling cracks on the shoulder did not create a dangerous condition exposing the driving public to danger. There is also no evidence that Yeager’s work at the intersection proximately caused plaintiffs’ injuries.
Plaintiffs also rely on Ray, supra, 98 Cal.App.4th 1120for the proposition that Yeager’s liability was not limited to dangerous conditions within the scope of its own work while in control of the jobsite. (Id. at p. 1134.) In Ray, an employee of an independent contractor was killed when construction materials blew off a bridge and struck him in the head while on the roadway below, attempting to secure other construction materials that had blown off the bridge. The trial court granted the defendant general contractor’s motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland), concluding there was no basis for negligence liability as a matter of law. (Ray, supra, 98 Cal.App.4that pp. 1123, 1130.) The Privette/Toland doctrine bars vicarious liability against the general contractor when an employee of an independent contractor is injured on the job due to the independent contractor’s negligence. (Ray, supra, 98 Cal.App.4th at p. 1123; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 668-669.)
On appeal, the plaintiffs in Ray, supra, 98 Cal.App.4th 1120 argued the general contractor was directly liable for its own negligence in failing to close the roadway below the bridge, and therefore the Privette/Toland doctrine did not apply. The general contractor retained the sole authority to close the road and failed to do so. The Ray court agreed, holding there were triable issues of fact as to duty, breach of duty, and causation. (Ray, at pp. 1129-1130, 1139.)
The Ray court noted that under Vehicle Code section 21367, the general contractor may have had a statutory duty to close the underlying roadway to ensure the safety of the traveling public. (Ray, supra, 98 Cal.App.4that p. 1135.) Thecourt concluded there was sufficient evidence to support findings that the general contractor had a duty to ensure that appropriate traffic control measures were undertaken, such as closing the roadway below the bridge, and failure to take such precautionary safety measures caused the plaintiff’s injuries. (Id. at pp. 1128, 1136, 1139.)
The instant case is distinguishable from Ray, supra, 98 Cal.App.4th 1120in that plaintiffs in the instant case were not injured by construction materials or construction activity. Also, unlike in Ray, there was no showing that Yeager owed the public a duty to provide traffic controls at the intersection, since the dangerous condition at the intersection was preexisting and Yeager was not performing any construction work at the intersection at the time of the collision. It is undisputed that Yeager’s construction work at the intersection did not increase the risk of harm. Furthermore, as the trial court ruled when granting Sudhakar’s similar motion for summary judgment, there was no evidence that Yeager’s subcontractor, Sudhakar, was negligent in failing to use additional traffic controls at the time of the collision.
C. Equipment on the Westbound Shoulder of the Expressway
Plaintiffs contend a triable issue exists as to whether Yeager breached a duty to the public to ensure safe movement of traffic at the intersection by placing its equipment along the Expressway so as to obstruct the view of vehicles at the intersection, turning left onto the Expressway.
Plaintiffs argue Yeager created a dangerous condition by parking its equipment on the westbound side of the Expressway, near the northeast corner of the intersection, and this proximately caused the collision. According to plaintiffs’ expert, Grossman, this impeded the ability of drivers turning onto the Expressway to see westbound traffic.
Grossman stated in his declaration that there was a skip loader, at least one pickup truck, a full sized truck, and a roller belonging to Yeager, parked on the north shoulder of the Expressway, east of the intersection. Sudhakar also had a striping truck “parked in the 12-plus foot wide strip lying between the temporary westbound lane and north shoulder of the expressway and a sweeper being used to grind out striping along the north shoulder of the Expressway, reportedly 300 to 500 feet east of Bridge Street.” Grossman concluded “[t]his equipment impeded the ability of drivers waiting to turn onto the Expressway to see westbound traffic.” Grossman did not visit the accident scene until two years after the accident and did not refer to any specific evidence establishing that drivers stopped at the intersection could not see approaching westbound traffic.
Rob Simmons, a Sudhakar laborer, testified that, on the day of the collision, he operated a street sweeper used to remove street striping. During the morning before the collision, he worked on the Expressway, 300 to 500 feet east of the intersection. Simmons was driving the sweeper, removing striping, at the time of the collision. He was not working in the westbound traffic lane since the traffic had been diverted by using cones to form lanes south of where he was working. Simmons was working on the northeast shoulder, 300 to 500 feet east of the intersection. Simmons testified that Yeager had trucks and equipment in the area, but it is unclear from his testimony where they were located.
Even assuming there were vehicles and equipment parked along the Expressway, drivers using reasonable care would be expected to use caution before entering the intersection and turning left onto the Expressway. It is undisputed Cynthia did not exercise reasonable care when entering the intersection. She followed the car in front of her into the intersection without even stopping at the stop sign.
While Grossman concluded that, “[h]ad flaggers been stationed to control traffic at the involved intersection at the time of the subject accident, the accident would not have happened, ...” plaintiffs failed to provide any evidence that Yeager had a duty to provide flaggers or other traffic controls at the time of the collision. Yeager had completed its work for the day, had not been working in the traffic lanes, and did not change the intersection in any significant way.
Furthermore, there is no evidence that Yeager’s vehicles and equipment parked along the shoulder of the westbound Expressway proximately caused the collision. Call, the County supervisor on the project, testified that, while standing at the intersection, on the northwest corner, he did not notice anything obstructing his view of traffic travelling westbound on the Expressway. Call acknowledged that Yeager had some vehicles parked off the Expressway, several hundred feet east of the intersection, but nevertheless stated that there were no obstructions and no one was working in the intersection at the time of the collision. Yeager crews were merely picking up cones since their work was complete.
In addition, Officer Williams testified that he stated in his investigative report that Jay Grammatico told him that, at the time of the collision, Jay was sitting in the rear right passenger seat of Cynthia’s vehicle. As Cynthia stopped southbound on Bridge Street at the stop sign, Jay looked to his left and saw a large truck approaching, traveling westbound on the Expressway. Cynthia accelerated into the path of the oncoming truck. The truck struck the left side of Cynthia’s vehicle.
These unrefuted facts, along with evidence that Cynthia ran the stop sign, establish that, even if Yeager’s vehicles and equipment were parked on the northeast shoulder of the Expressway, this did not constitute a dangerous condition requiring Yeager to provide traffic controls at the intersection. Plaintiffs also failed to provide any evidence that parking Yeager’s vehicles and equipment on the Expressway proximately caused the collision.
3. LAN’s Motion for Summary Judgment
Plaintiffs contend the trial court erred in granting LAN’s motion for summary judgment because there were triable issues as to whether LAN had a duty to recommend a traffic engineering analysis and installation of a temporary traffic signal at the intersection.
A. Factual and Procedural Background
LAN was added to plaintiffs’ personal injury complaint as a DOE defendant, and was dismissed from the second, third, and fourth causes of action, leaving the first cause of action against LAN for professional negligence. LAN was the civil engineering firm hired by the County to design a detour plan for Phase II of the Gilman Springs Road project.
Plaintiffs proceeded against LAN solely on the claim that LAN negligently designed the detour route where the collision occurred. Plaintiffs alleged the detour plan was defective because the detour added traffic on Bridge Street, which in turn resulted in an unreasonable left-turn bottleneck at the intersection of Bridge Street and the Expressway. This allegedly created an unreasonable increased peril to drivers taking the detour. Plaintiffs argued LAN should have addressed this foreseeable risk of harm to drivers by recommending a traffic engineering analysis and installation of a temporary traffic signal.
In February 2008, LAN filed a motion for summary judgment, arguing that it had no obligation or duty to provide traffic engineering, including traffic controls and traffic safety. LAN expressly negotiated contract terms that provided LAN was not responsible for any traffic engineering, traffic control plans, or traffic analysis. The County, on the other hand, retained complete control over the traffic engineering for the project.
In support of LAN’s summary judgment motion, LAN provided declarations by LAN’s civil engineers, William Nascimento and Edward Ng, along with various other evidence, including deposition testimony by County traffic engineer, Lawrence Tai.
In October 2008, plaintiffs filed opposition to LAN’s summary judgment motion, arguing that there was evidence supporting professional negligence liability against LAN. Plaintiffs argued LAN was obligated to ensure that the detour process was conducted in a safe manner, including ensuring that flagmen or other measures were used at the time of the collision. Within six weeks after beginning construction on Phase II of the Gilman Springs Road project, Tai met with the County Director of Transportation, George Johnson, who instructed Tai to install a temporary traffic signal at the intersection due to the traffic volume and hazard to the public. Plaintiffs argue this indicated LAN breached its duty to recommend in its detour plans installation of a temporary traffic signal at the intersection.
The following facts were undisputed. LAN and the County entered into an agreement that LAN would provide the County transportation department with on-call engineering services. The County contracted LAN to serve as the design engineer for Phase II of the Gilman Springs Road project, which involved the realignment of approximately 1.4 miles of the Gilman Springs Road. Phase II was developed under the control of the County transportation department and required the detour plan in question.
During negotiations over LAN’s scope of work in designing Phase II, LAN and the County agreed LAN would not be responsible for traffic control, traffic engineering, traffic management, and traffic control studies. Under the final agreement for Phase II, between the County and LAN, executed on July 27, 2001, LAN had no responsibility for any traffic control or traffic engineering. The County had its own traffic engineer, Lawrence Tai, who managed the County’s transportation department traffic division. LAN and Tai understood that LAN was to provide civil engineering for the roadway detour design and was not hired to do any traffic engineering. Tai and his County traffic department were to provide whatever traffic engineering services were needed for the project.
Tai’s office dealt with traffic and highway safety, traffic controls, signal design, inspection of signal control construction, signage and striping. The primary focus was transportation safety and traffic engineering. Tai’s role in the project was to provide traffic engineering services. The County did not generally hire traffic safety engineers or retain outside consultants for traffic engineering. Tai understood that LAN was hired to design a traffic detour plan for Phase II of the project.
LAN completed the Phase II detour plans in March 2002. Edward Ng, LAN’s project manager, signed off on the plans and delivered them to the County’s project manager, Farah Khorashadi. LAN’s original design plan did not include a detour route. Rather, it showed flagmen within the Gilman Springs Road construction zone, thus obviating the need for a detour.
Toward the end of 2003, Khorashadi informed Ng that the County wanted to proceed with the Phase II construction, but had decided to close Gilman Springs Road during the construction and therefore a detour route was needed during the Phase II construction. Khorashadi requested LAN to prepare a detour and signage plan, which would be included with the County’s application for an encroachment permit seeking to place detour signs on state highways. The original Phase II plan’s scope-of-work assignment was amended to eliminate all traffic control and traffic engineering requirements from LAN’s undertaking. In November 2003, Ng submitted to Khorashadi a detour plan for Phase II. The following day, Tai, the County’s traffic engineer, reviewed, signed, and approved the detour plan as proposed by LAN.
Tai testified during his deposition that he did not find anything that led him to believe the detour would cause increased congestion or a need for a traffic control device other than the preexisting stop sign at the Bridge/Expressway intersection. According to Tai, at that time, the intersection had excellent sight distance.
Using LAN’s detour plans, in December 2003, the County applied to Caltrans for an encroachment permit for the Phase II detour route. Thereafter, Caltrans approved the encroachment permit for the detour. In April 2004, LAN submitted to the County its final specifications and estimates needed for the Phase II construction bidding. This was LAN’s last substantive contact with the County on the design of Phase II. Thereafter, the County never contacted LAN regarding any aspect of LAN’s design of Phase II, including the detour.
The County approved putting Phase II out to bid, and the County Board of Supervisors approved the award of the Phase II construction contract to Yeager. The closure of Gilman Springs Road was also approved.
In September 2004, Phase II construction began. LAN was not requested to attend a meeting in September, during which the County’s resident engineer, Mendoza, and the general contractor, Yeager, met with a Caltrans representative to consider the encroachment permit and review the detour plan. LAN was also not consulted thereafter regarding the detour.
In October 2004, Tai visited the detour and viewed the traffic at the Bridge/Expressway intersection. LAN was not consulted regarding Tai’s findings. Tai did not notice any safety problems during his visit to the intersection. Tai recommended to Johnson, the County’s Director of Transportation, that the north shoulders of the intersection be expanded to facilitate traffic turning onto and off of Bridge Street. He also recommended a left-turn pocket be installed to facilitate drivers turning left off the Expressway onto Bridge. Tai suggested adding signage and restriping at the intersection, as well. He did not recommend installation of a temporary traffic signal in place of the existing stop sign.
A couple weeks later, Tai met with Johnson to discuss Tai’s recommendations. At the meeting, Johnson instructed Tai to install a temporary traffic signal at the intersection. LAN had no input into this decision by the County. Following the meeting, Tai’s office prepared plans for installation of the temporary traffic signal and restriping. LAN was not involved in the design or drafting of the plans for the signal.
Construction on the intersection improvements required for installation of the signal began on November 16, 2004. LAN was not involved.
The subject collision occurred at the intersection on November 19, 2004. That day, prior to the collision, work was done at the intersection in preparation for the installation of the temporary traffic signal.
Plaintiffs argued in opposition to LAN’s motion for summary judgment that, even though there was no contractual obligation to provide traffic controls and analysis, there nevertheless was common law tort liability based on professional negligence. Citing Johnson’s deposition testimony, plaintiffs also argued that LAN undertook to provide traffic controls.
Plaintiffs filed supplemental opposition to LAN’s summary judgment motion, along with a declaration by Edward Ruzak.
On February 24, 2009, the trial court heard and granted LAN’s summary judgment motion, concluding it was undisputed that LAN did not owe a duty of care to plaintiffs, plaintiffs could not establish a claim for professional negligence against LAN, and LAN’s professional conduct did not proximately cause plaintiffs’ injuries.
The trial court stated in its written statement of decision that it was undisputed that LAN was responsible for designing a detour plan, with the County retaining sole responsibility for traffic engineering. The trial court acknowledged that Johnson testified that he would have expected LAN to recommend a temporary traffic signal at the intersection but such a recommendation did not fall within the responsibilities of LAN under the scope-of-work agreement. The scope-of-work agreement for the Phase II detour plan expressly eliminated any responsibility by LAN for designing, recommending or advising on traffic controls. The trial court concluded it was undisputed LAN did not undertake any contractual or statutory obligation giving rise to a duty of care to plaintiffs and, therefore, under Paz, LAN could not be found liable for professional negligence.
The trial court stated in its written statement of decision the following: “The Court concludes that Paz[, supra, 22 Cal.4th 550], Dekens [v. Underwriters Laboratories, Inc. (2003) 107 Cal.App.4th 1177 (Dekens)] and Weseloh [Family Ltd. Partnership v. K.L. Wessel Construction, Co., Inc. (2004) 125 Cal.App.4th 152] control this situation. Here, LAN did not undertake to perform the engineering tasks which plaintiffs contend gave rise to the dangerous condition at the intersection. Further, LAN specifically negotiated the traffic engineering tasks, which plaintiffs contend were negligently performed and increased the risk of harm to them, out of its agreement with the County. So the professional design services LAN did perform did not create any duty of care toward plaintiffs as third party users of the detour route, and cannot be shown to create any duty of care in LAN.”
B. Discussion
Plaintiffs argue that under the negligent undertaking theory of liability articulated in Paz and in section 324A, a triable issue exists as to whether LAN undertook to provide traffic control advice in connection with designing the detour plan and breached that duty by not recommending appropriate traffic controls, such as a temporary traffic signal at the intersection.
Under the negligent undertaking doctrine, commonly referred to as the Good Samaritan doctrine, “a defendant may be liable when it undertakes to render services necessary for another’s protection, but negligently performs that undertaking.” (Dekens, supra, 107 Cal.App.4th at pp. 1180-1181.) “ ‘ “The foundational requirement of the good Samaritan rule is that in order for liability to be imposed upon the actor, he must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully.” ’ [Citation.]” (Id. at p. 1182, quoting Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614-615.)
As mentioned ante in connection with Yeager’s motion for summary judgment, the California Supreme Court in Paz, supra, 22 Cal.4th 550, noted: “A contract for a public project does not create a general duty to third persons that gives rise to negligence liability, with respect to an allegedly dangerous condition the contract work may correct, if the requirements for application of section 324A are not otherwise satisfied.” (Id. at p. 554, italics added.) The court further explained: “Section 324A prescribes the conditions under which a person who undertakes to render services for another may be liable to third persons for physical harm resulting from a failure to act with reasonable care. Liability may exist if (a) the failure to exercise reasonable care increased the risk of harm, (b) the undertaking was to perform a duty the other person owed to the third persons, or (c) the harm was suffered because the other person or the third persons relied on the undertaking.” (Paz, at p. 553.)
Plaintiffs oppose LAN’s summary judgment based on the theory that LAN undertook to perform traffic control responsibilities in connection with designing the detour route. Whether and to what extent LAN’s civil engineering services, designing a detour route, constitute an undertaking for purposes of section 324A is a legal question for the court to resolve since the material foundational facts are undisputed. (Dekens, supra, 107 Cal.App.4th at p. 1182.)
It is undisputed that LAN and the County entered into an agreement whereby LAN was to design a detour route for Phase II of the Gilman Springs Road project. LAN expressly excluded any responsibility for traffic control engineering services, recommendations or advice, with the understanding that the County was solely responsible for the design, use, and installation of detour traffic controls throughout the detour, including at the intersection.
Plaintiffs argue that the declaration of their engineering expert, Edward Ruzak, and Johnson’s deposition testimony provide evidence that LAN nevertheless undertook to provide traffic controls in connection with the detour design. Such evidence, however, fails to refute the fact that LAN specifically and expressly declined to provide traffic control engineering services and did not undertake in any way to provide such services in connection with designing the detour route.
Ruzak stated in his declaration that LAN “failed totally to assess the need for positive and temporary traffic controls” at the intersection. Ruzak noted that Ng, whom Ruzak erroneously assumed was responsible for preparing a traffic control plan, did not have any training in traffic engineering. Ruzak concluded that Ng and LAN’s engineering services were below the reasonable level of practice and contributed to the intersection’s dangerous condition. Specifically, Ng and LAN did not assess the traffic volume diverted to the intersection and did not recommend any traffic controls as part of the detour. But the evidence establishes that LAN did not contractually agree to prepare a traffic control plan or provide any services relating to traffic control. LAN’s contractual responsibilities were limited to designing a detour route, with traffic control expressly left within the County’s exclusive control.
Johnson, the County Director of Transportation, testified during his deposition that the County used LAN as a consulting engineer in forming the detour plan. LAN designed the detour plan and the County reviewed it. For safety reasons, the County decided to install a temporary traffic signal at the intersection because traffic was backing up at the intersection on southbound Bridge Street. The County wanted to improve the intersection mobility and safety by installing a traffic signal at the intersection. Johnson testified that under such circumstances, in which traffic was backing up at the intersection and there were insufficient gaps in traffic on the Expressway, he would expect that LAN would have recommended installing a temporary traffic signal there.
Although Johnson might expect this, it is undisputed LAN did not have any duty to make such a recommendation since LAN expressly stated in the agreement entered into by the County and LAN that LAN was not responsible for traffic control services. Johnson’s testimony thus did not establish or support a finding that LAN undertook to provide recommendations on the use of traffic controls in connection with the detour.
It is undisputed that LAN had no responsibility, either contractually or under common law, to provide traffic control engineering services. Because there is no evidence establishing an undertaking, the court need not consider the requirements of subdivisions (a), (b) and (c) of section 324A discussed in Paz. (Dekens, supra, 107 Cal.App.4that p. 1183.)
LAN met its burden on summary judgment by showing through admissible evidence that it never undertook to provide traffic control engineering services in connection with designing a detour plan for Phase II of the Gilman Springs Road project. Since plaintiffs failed to show any triable issues of material fact refuting this, the trial court properly granted LAN’s motion for summary judgment.
4. Disposition
The judgments as to defendants Yeager and LAN are affirmed. Yeager and LAN are awarded their costs on appeal.
We concur: McKinster, J., Miller, J.