Opinion
F074937
05-14-2018
KERRY SCOTT USSERY, Plaintiff and Appellant, v. COUNTY OF STANISLAUS, Defendant and Respondent.
Law Office of Mark R. Swartz and Mark R. Swartz for Plaintiff and Appellant. Dan Farrar for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 662273)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Law Office of Mark R. Swartz and Mark R. Swartz for Plaintiff and Appellant. Dan Farrar for Defendant and Respondent.
-ooOoo-
Appellant, Kerry Scott Ussery, a retired Modesto police officer, challenges the judgment entered in favor of respondent, County of Stanislaus (County), following a court trial on appellant's personal injury action. Appellant's complaint alleges the County is liable for injuries he sustained during a pursuit intervention technique (PIT) training session that is required for Modesto police officers. According to appellant, although the vehicles used for the PIT training belonged to the Modesto Police Department (MPD), the County is liable for their dangerous condition because the County had the right to control the PIT vehicles.
The trial court found that the evidence "unwaiveringly [sic]" pointed to the County's lack of control of the property alleged to be dangerous, i.e., one or more PIT vehicles. Accordingly, the trial court ruled in the County's favor on the ground that appellant did not meet his burden of proving the County owned or controlled the property at issue.
Substantial evidence supports the trial court's ruling. Therefore, we affirm the judgment.
BACKGROUND
All California peace officers are required to take an emergency vehicle operations course (EVOC) every two years. The California Peace Officer Standards and Training commission mandates this training. The County runs the EVOC training through the sheriff's department.
Michael Cook coordinates the EVOC training program for the County. This training takes place at the County's Crows Landing facility on portions of a former naval air station runway.
PIT training is separate from EVOC training and the Peace Officer Standards and Training commission does not require it. MPD conducts PIT training in-house for MPD officers.
A PIT maneuver involves a pursuing vehicle gently turning into the rear quarter of the target vehicle, causing the target vehicle to spin out. To successfully PIT, the vehicles must be able to maintain a constant speed. The pursuing vehicle must match the speed of the target vehicle. MPD uses two modified vehicles for PIT training, both of which are retired MPD patrol cars.
Before January 2010, MPD contacted Cook to schedule EVOC training. MPD also wanted to know if they could do their PIT training on the same day. Cook agreed to MPD's request. MPD told Cook "they wanted to pull their officers out to conduct PIT training."
On January 26, 2010, appellant participated in EVOC training while employed as an MPD officer. He signed a waiver releasing the County from liability before beginning the course. Appellant also participated in the PIT training that day.
David Serratos was the PIT instructor on January 26, 2010. At the time, he was an MPD officer. Although Serratos had worked for the County as an EVOC instructor, the last time the County paid him for those services was July 31, 2008. MPD paid Serratos for PIT training.
The City of Modesto (Modesto) owns the PIT vehicles. In 2010, they were stored at the Crows Landing facility. The County allowed MPD to keep the PIT vehicles in a fenced area at Crows Landing so MPD did not have to drive them back and forth every day. Modesto maintained the PIT vehicles and paid for the fuel. The PIT vehicles were "common keyed," i.e., two or three keys fits the entire fleet of police vehicles.
There was testimony that, on January 26, 2010 at least one of the PIT vehicles had an issue with either the drive train or the transmission. This caused the driver to have difficulty accelerating. Further, if the driver let off the gas, the car would immediately decelerate.
Appellant's partner for the PIT training on January 26, 2010, was Michael Hicks, an MPD officer. In one PIT maneuver, while Hicks drove the pursuit vehicle and appellant was the passenger, the target vehicle slowed just before Hicks made contact with it. Consequently, Hicks hit the target vehicle in front of the rear wheels. This caused the target vehicle to spin in front of the pursuit vehicle and then hit the pursuit vehicle on the passenger side.
Appellant filed the underlying action against the County alleging he suffered back and neck injuries during the PIT maneuver. According to appellant, the dangerous condition of the PIT vehicles caused the accident. Therefore, appellant argues, the County is liable pursuant to Government Code section 835.
Following a bench trial, the trial court ruled in the County's favor. The trial court concluded that the "fulcrum upon which this case resolves ... rests on a determination whether or not the County of Stanislaus 'owned or controlled' the property." The trial court found that, because the County neither owned nor controlled the vehicles, appellant did not meet his burden of proof by a preponderance of the evidence.
Nevertheless, the trial court also made findings on other legal issues in the event this court disagreed with the trial court's finding on the "'control'" issue. Accordingly, the trial court also found that the release did not cover the incident in question in that failing to remove the non-conforming cars from service constituted gross negligence. The court further held that, because appellant was not able to call expert witnesses due to his untimely attempt to designate his experts, appellant failed to prove any damages related to the PIT maneuver training.
DISCUSSION
A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition proximately caused the injury; and (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred. Further, liability requires that either an employee created the dangerous condition by a wrongful act or omission or the public entity had actual or constructive notice of the dangerous condition in time to take measures to protect against it. (Gov. Code, § 835.)
For purposes of Government Code section 835, a public entity's property means real or personal property owned or controlled by the public entity. (Gov. Code, § 830.) Thus, in order to be liable, the public entity must be the owner or in control of the property at the time of the injury. (Tolan v. State of California ex rel. Dept. of Transportation (1979) 100 Cal.App.3d 980, 983.) One way to determine if a public entity controls the dangerous property is to inquire whether that entity has the power to prevent, remedy or guard against the dangerous condition. (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.)
Here, it is undisputed that the County did not own the PIT vehicles. Thus, the question is whether the County controlled those vehicles, i.e., whether the County had the power to prevent, remedy or guard against their being in a dangerous condition.
In the trial court, appellant argued the County controlled the PIT vehicles based on claims that: (1) the vehicles were stored at the County's Crows Landing facility; (2) the County maintained the keys that operated the PIT vehicles; (3) County fuel may have been used for the PIT vehicles; and (4) County personnel may have changed tires on the vehicles. However, as found by the trial court, these factors either do not demonstrate control or are not supported by the evidence.
In 2010, the County permitted MPD to store the PIT vehicles in a gated area at the Crow's Landing facility rather than in a Modesto lot. This way, MPD did not need to shuttle the PIT vehicles back and forth every day for the training. However, this fact does not indicate the County had any control over the PIT vehicles. Rather, MPD was merely storing their vehicles at the training facility.
Similarly, whether the County had keys that might work in the PIT vehicles is immaterial. The PIT vehicles were common keyed. Therefore, the keys that operated the PIT vehicles also worked for multiple law enforcement vehicles. The PIT vehicles did not have special keys.
Regarding maintenance and fuel supply for the PIT vehicles, every witness who testified on the subject stated that Modesto maintained the vehicles and provided all repairs and supplies. Both Cook and Ronald Cloward, the MPD employee in charge of PIT training, repeatedly testified that County resources were not used for PIT vehicles. Rather, Modesto was responsible for fuel and maintenance.
To support his claim that the County may have fueled the PIT vehicles and changed their tires, appellant relies on testimony from Serratos. Serratos testified that he took the PIT vehicles to a gas station in town for fuel. However, he also stated that he saw a truck at the Crows Landing facility that sometimes fueled the PIT cars. Nevertheless, Serratos did not identify this truck as belonging to the County. Appellant's counsel then asked Serratos if he ever saw "people you believed to be employees with Stanislaus County or work project people changing the tires on those PIT cars" and Serratos answered "Yeah."
The trial court concluded the evidence "unwaiveringly [sic] points to a lack of control of the property alleged to be dangerous." Substantial evidence supports this finding. As noted by the trial court, multiple witnesses unambiguously testified that Modesto provided the fuel and performed all maintenance on the PIT vehicles. Serratos's vague and equivocal testimony regarding fuel and tires does not support a contrary conclusion.
Appellant contends the County controlled the PIT vehicles because "the County incorporated the PIT cars into its EVOC course and used those cars to train the officers in the PIT maneuver, which was one of the training blocks that comprised the subject EVOC course." However, appellant's position finds no support in the record.
The witnesses consistently testified that PIT training was not part of the EVOC course. Rather it was entirely separate and put on by MPD. The County was not involved in any way with the PIT training and had no authority to intervene. The officers taking the EVOC course were not required to pass the PIT training in order to pass the EVOC course. Moreover, PIT training was not a substitute for any of the EVOC training blocks. An officer doing PIT training would simply be exempted from one of those blocks. Finally, the County did not employ Serratos when he conducted the January 26, 2010, PIT training.
In sum, the record supports the trial court's finding that the County did not control the PIT vehicles. Accordingly, appellant did not meet his burden to show that the County's property proximately caused his injury. Therefore, the County is not liable under Government Code section 835. In light of this conclusion, we do not address whether the release was enforceable or whether appellant failed to prove damages.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI section 6 of the California Constitution. --------