Opinion
NOT TO BE PUBLISHED
Alameda County, Super. Ct. No. RG04-138813.
Margulies, J.
While crossing Bancroft Avenue in Oakland in a pedestrian crosswalk, plaintiffs Patricia Jackson and her children, Ebony Reeves and Marquez White, were struck by an automobile and seriously injured. They sued the City of Oakland (City), among other parties, alleging that their injuries were proximately caused by the dangerous condition of the intersection where the accident occurred. The City moved successfully for summary judgment on the grounds, among others, that the City’s property was not in a dangerous condition as a matter of law. Plaintiffs appeal from the adverse judgment. Finding no triable issues of material fact with respect to the existence of a dangerous condition, we affirm.
I. BACKGROUND
A. The Accident
About 10:00 p.m. on August 12, 2003, plaintiff Patricia Jackson and her children, Ebony, age 14, and Marquez, age 6, walked from their home on 80th Avenue to L.T. Liquors located near the southwest corner of Bancroft and 78th Avenue in Oakland to purchase some items. After leaving the store to return home, and before she entered the crosswalk across Bancroft, Jackson looked to her left. She could see as far as the intersection of Bancroft and 73d Avenue, a distance of about four blocks. She saw no eastbound traffic.
At this location, Bancroft has two eastbound lanes and two westbound lanes, divided by a median strip. The only marked crosswalk across Bancroft at 78th Avenue, consisting of two white parallel lines, is located on the east side of the intersection. Pedestrians crossing Bancroft at that location walk across the eastbound lanes to the median strip and then continue across the median to a marked crosswalk over Bancroft’s two westbound lanes. The median strip, which contains trees and foliage, blocks vehicular traffic on 78th Avenue from continuing across Bancroft, creating what traffic engineers refer to as a “T-intersection” at Bancroft and 78th.
Jackson was holding Marquez’s left hand with her right hand as they started to cross Bancroft toward the median. Bryant Marable was driving eastbound on Bancroft that night, in the right-hand lane. He was on his way home to Antioch but had stopped in Oakland to drop off a CD at a friend’s house. As Marable passed L.T. Liquors, he saw people standing on the sidewalk in front of the store. He could also see people further up Bancroft on his left. Marable, who had his passenger window rolled down, thought he heard someone yell. He turned his head to the right for about a second or a second and a half and looked at the crowd of people to see if the person yelling was someone he knew. When he looked back at the roadway, Jackson and her family were directly in front of him. The impact occurred immediately after he turned his head back to the roadway. He was unable to brake before impact. He testified that he was traveling 30 to 35 miles per hour, but an eyewitness estimated his speed at 40 to 50 miles per hour. Marable did not see the marked crosswalk at any time as he was approaching the intersection and was unaware there was a crosswalk at 78th.
Jackson and Ebony sustained leg fractures. Marquez sustained severe head and spinal injuries, and is paralyzed from the neck down.
B. The City’s Summary Judgment Motion
In a second amended complaint, plaintiffs alleged that the City was liable for a dangerous condition of property owned by the City, which caused their injury. The City denied the allegations and asserted a number of affirmative defenses.
The City moved for summary judgment on the grounds that: (1) it was entitled to immunity for its discretionary decisions regarding the design of the intersection under Government Code sections 830.4 through 830.8; (2) it was entitled to immunity for its discretionary decisions regarding the signalization of the intersection under the same code sections; and (3) the intersection was not in a dangerous condition as a matter of law, and was not the cause of the accident.
All further statutory references are to the Government Code unless otherwise indicated.
In opposition to the City’s motion, plaintiffs argued that the following disputed facts, among others, created material fact issues for trial: (1) there was no stoplight on Bancroft between 73d Avenue and 82d Avenue, allowing drivers to reach high levels of speed over that portion of Bancroft and making it difficult to safely cross Bancroft; (2) shrubs and trees in the area block the view, making it harder to see pedestrians approaching the crosswalk; (3) a number of factors combined to create a dangerous condition at the accident intersection, including (i) relatively short blocks, (ii) the absence of stoplights or other speed reduction devices along Bancroft, (iii) the inconspicuous T-intersection at 78th and Bancroft (i.e., with 78th Avenue ending at eastbound Bancroft due to the median), (iv) alternating light and shadow at night due to the foliage and location of the streetlight, (v) the absence of controls to prevent cars from parking so close to the intersection of Bancroft and 78th that they obscured the presence of the intersection, (vi) the failure to post crosswalk warnings for drivers, and (vii) the pedestrians’ false sense of security due to the marked crosswalk.
The trial court granted the City’s motion, finding as a matter of law that the site of the accident was not in a dangerous condition, that there was no evidence the accident was caused by any condition of the intersection, and that there was no triable issue of material fact as to whether the City was immune from liability. Plaintiffs timely appealed from the ensuing judgment in favor of the City.
II. DISCUSSION
A public entity is generally liable for injuries caused by a dangerous condition of its property if “the property was in a dangerous condition at the time of the injury, . . . the injury was proximately caused by the dangerous condition, . . . the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . either: [¶] . . . [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] . . . [t]he public entity had actual or constructive notice of the dangerous condition [in time to prevent the injury].” (§ 835.)
By statute, a dangerous condition is defined as a “condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it was reasonably foreseeable that it will be used.” (§ 830, subd. (a).) A public entity may be liable for failing to warn of a dangerous condition arising from the design of an improvement to its property. (§§ 835, subd. (b), 830, subd. (b) & 830.8.)
Plaintiffs argue that the intersection of 78th and Bancroft was in a dangerous condition because neither the intersection nor the crosswalk were apparent to motorists, thus making pedestrian crossings at that location unexpected. According to plaintiffs, this dangerous condition arose from the combined effect of various factors, none of which in itself would have constituted a dangerous condition. Plaintiffs concede, for example, that a city is under no duty to light its streets and that its failure or negligence in doing so will not render it liable to one injured solely by that omission. (See Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483 (Antenor).) Although a straight and level road with few intersections may encourage drivers to exceed the speed limit, this condition in itself is also not a dangerous condition. (City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 30–31.) But, plaintiffs maintain, conditions that are not in themselves dangerous may be considered together with other conditions in determining whether the property is dangerous.
See also section 830.4: “A condition is not a dangerous condition . . . 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 . . . .”
Plaintiffs cite Gardner v. City of San Jose (1967) 248 Cal.App.2d 798 (Gardner) and Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531 (Washington). In Gardner, a 15-year-old girl was struck by an automobile when she walked across a busy thoroughfare over an unmarked surface crosswalk in darkened conditions instead of using a pedestrian subway to cross. (Gardner, at pp. 800–801.) There was evidence that the pedestrian subway lights were rarely working, and that the subway was dangerous in an unlighted condition. (Id. at p. 802.) Nonetheless, the city relied on the subway to protect pedestrians attempting to cross the thoroughfare. (Id. at p. 803.) Despite the heavy traffic conditions and poor surface lighting, it did not mark the surface crosswalk or provide warning or yield signs. (Ibid.)
On these facts, the Gardner court held that although the failure to provide regulatory traffic signals at the site was not itself a basis for liability, that failure combined with other factors to create a dangerous condition: “Although section 830.4 . . . provides that a condition of public property is not . . . dangerous . . . merely because of the failure to provide regulatory traffic control signals, the absence of such signals for the protection of pedestrians must be taken into consideration, together with other factors. It is a logical inference . . . that the condition of the intersection was allowed to remain as it was because of the existence of the subway. But the lack of crosswalk markings, better illumination and warning signs became important factors in the case when the subway itself was in a dangerous condition. Although the city need not have provided a subway, once it had done so it was bound to see to it that the condition of the subway would not become such that, in combination with other factors within the city’s control, a dangerous condition would be created.” (Gardner, supra, 248 Cal.App.2d at p. 803, italics omitted.)
Washington also involved the limited immunity provided by section 830.4: “Section 830.4 exempts from the definition of ‘dangerous condition’ found in section 830, subdivision (a) a condition resulting ‘merely’ from failure to provide regulatory traffic controls or definitive roadway markings. It implicitly confers a limited immunity from injury liability on a public entity if that failure is the only basis for fixing such liability. Where, however, the dangerous condition of public property exists for reasons other than or in addition to the ‘mere[]’ failure to provide such controls or markings, the public entity is liable for injury therefrom if the conditions of its liability under section 835 are otherwise met.” (Washington, supra, 219 Cal.App.3d at pp. 1535–1536, original italics, fns. omitted.)
The City maintains that the plaintiffs’ legal premise—that individually nondangerous conditions can combine to create a dangerous condition—has been “resoundingly rejected by the courts of this state.” In fact, the City cites only one case to support that rather sweeping proposition, Antenor, supra, 174 Cal.App.4th 477. Antenor does address the point, but its analysis of the issue is limited to one conclusory sentence, which we have italicized: “We have not lost sight of plaintiffs’ contention that these four physical factors have combined to create the ‘dangerous condition’ which plaintiffs must establish if they are to survive the nonsuit. However, if each of the four has a zero danger factor, it cannot be said that any alchemist’s process will create one for the whole.” (Id. at p. 484, italics added.) No published case has quoted or followed Antenor on this point.
The City has cited other cases in which the courts have considered and rejected a series of individual factors claimed to constitute dangerous conditions. (See Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 440–444; Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 10–12.) These cases did not address whether individually nondangerous conditions can combine to create a dangerous condition.
On the other hand, the facts of the Gardner and Washington cases offer little to support plaintiffs’ position in this case. In Gardner, the fact that the city had built a pedestrian subway was treated by the appellate court as a tacit concession that the crosswalk was unsafe. The court also found specifically that the subway itself was maintained in a dangerous condition. Thus, Gardner turned on the fact that the city had provided no safe way to cross the street at the location in question. It does not stand for the proposition that two nondangerous elements can combine (or alchemize) to form a dangerous condition.
The issue decided in Washington was whether the immunity provided in section 830.4 applied to a traffic intersection that was dangerous for reasons other than the failure to provide regulatory signals or street markings. (Washington, supra, 219 Cal.App.3d at pp. 1534–1535.) Washington held that the statute by its own terms provided no immunity when another dangerous condition—in that circumstance, vision limitations caused by metal pillars and shadows—was also present. (Id. at p. 1535.) The case did not address whether the immunity would apply if the vision limitations did not themselves create a dangerous condition.
As we view the case law, there is no hard and fast rule that individually nondangerous conditions can never combine to create a substantial risk of injury for which a public entity may become liable. At least two cases cited for this point in plaintiffs’ reply brief do suggest that an amalgam of a few, otherwise nondangerous elements may create a dangerous condition. (See Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1476; Curreri v. City etc. of San Francisco (1968) 262 Cal.App.2d 603, 610.) At the same time, the more factors that must interact to create a substantial risk of injury, the more difficult it is to charge a public entity defendant with actual or constructive knowledge of the danger. In any event, alleging the interactive effect of multiple factors to establish the existence of a dangerous condition does not prevent a trial or appellate court, in an appropriate case, from deciding the issue of dangerousness as a matter of law. We believe this is such a case.
Section 830.2 provides: “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 . . . was used with due care in a manner in which it was reasonably foreseeable that it would be used.” Here, viewing the evidence most favorably to the plaintiffs, we must reject their position that the crosswalk at Bancroft and 78th Avenue (and the possibility of pedestrians crossing at that location) would have been unexpected to a reasonably attentive driver in Marable’s position.
The intersection is located on a straight stretch of roadway with good visibility and lighting that met or exceeded applicable design standards. When Jackson looked down Bancroft to her left before crossing, she could see for a distance of four blocks. Marable testified that he could see people on the left side of Bancroft beyond the crosswalk. An overhead street lamp directly adjacent to the crosswalk fully illuminated the street and crosswalk, as shown in pictures of the scene. There is no evidence, pictorial or otherwise, that overgrown vegetation in the median strip created shadows that obscured the presence of the crosswalk.
Plaintiffs’ expert opined that untrimmed tree branches on the median prevented the streetlights from “sufficiently” illuminating the crosswalk. He did not explain how trees or vegetation on the median blocked illumination from the overhead street lamp on the opposite side of Bancroft from the median. That street lamp was shining directly down on the crosswalk, and was located in an area where there were no trees or vegetation to block its illumination. Although the trees and vegetation on the median affected the light cast from the shorter luminaires on the median, the luminaires were not installed to light the roadway, but to light the pedestrian pathways on the median.
There is also no evidence that red curb markings along Bancroft were contrary to design standards, thereby allowing cars to park too close to the intersection with 78th Avenue and making the existence of the intersection less noticeable to drivers. The conclusory statements of plaintiffs’ experts that the curb marking was “too short” and “insufficient” fail to create a triable issue on this point, even assuming that such issue would be material. In fact, although parked cars might affect the visibility of the west corner of the intersection, the crosswalk was located at the east corner, across 78th Avenue. This was beyond the point at which the presence of parked cars assertedly interfered with the driver’s ability to see the intersection. If Marable failed to notice the intersection, it was because he was looking away instead of paying attention to the road.
The lack of stoplights or other speed reduction devices along Bancroft between 73d and 78th Avenues also cannot be transmuted into a dangerous condition. As noted earlier, the presence or absence of traffic control devices does not in and of itself constitute a dangerous condition. (§ 830.4.) There is no evidence in this case that Marable’s failure to notice pedestrians in the crosswalk was caused by his speed, as opposed to his inattention to the road ahead of him. There was no history of pedestrian accidents at 78th Avenue and Bancroft, and auto collision rates at the intersection were less than the average than would be expected citywide for intersections with comparable traffic volume. Although higher than the accident rate at 78th and Bancroft, the accident rate at 77th and Bancroft was also not sufficiently high to qualify that intersection for a traffic signal. Plaintiffs’ claim that the lack of speed reduction devices interacted with other factors to create a dangerous condition is based on nothing more than unfounded speculation.
Plaintiffs argue that the crosswalk at this T-intersection functioned similarly to a midblock crosswalk. According to the California Department of Transportation (Caltrans) Traffic Manual and the United States Department of Transportation Manual on Uniform Traffic Control Devices, midblock crosswalks are generally considered to be unexpected by motorists and warning signs are therefore recommended at such locations. But the crosswalk in issue here was not in fact a midblock crosswalk. It was located at an intersection and, as discussed, the presence of the intersection was not obscured by poor lighting, shadows, parked cars, or other conditions. In our view, the photograph of the intersection that is in the record, and which plaintiffs reproduced in their opening brief, demonstrates as a matter of law that the intersection is “clearly visible to approaching traffic,” that “there is nothing which would prevent the observant motorist from becoming aware of it at a safe distance before the intersection is entered,” and that “no reasonable person could find that it constituted a dangerous condition.” (City of South Lake Tahoe v. Superior Court (1998) 62 Cal.App.4th 971, 979.) We therefore find no triable issue of material fact as to whether the conditions plaintiffs rely on, either individually or in combination, substantially reduced the ability of an attentive driver to perceive the presence of the crosswalk or the presence of pedestrians walking in it.
The trial court properly granted summary judgment to the City because there were no triable issues of material fact with respect to the existence of a dangerous condition. We do not reach the causation and statutory immunity issues raised by the City.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Stein, J.