Opinion
A145023
01-19-2017
JOHN LUIGI SELLEM et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSC-1101705)
After being injured in an accident on a state highway, plaintiffs John Luigi Sellem and John Carlo Sellem III (Plaintiffs) sued respondent State of California (Caltrans) claiming certain aspects of the highway constitute a dangerous condition of public property (Govt. Code, § 835). The trial court granted Caltrans's motion for summary judgment, and we affirm.
All undesignated section references are to the Government Code.
BACKGROUND
About 10:40 a.m. on June 20, 2010, during clear and dry weather conditions, Plaintiffs were passengers in a van traveling eastbound on State Route 4 just before the Port Chicago off-ramp. A guardrail runs along the right side of the highway but ends at the beginning of the exit to the Port Chicago off-ramp. A new stretch of guardrail begins, on the right side of the Port Chicago off-ramp, approximately 450 feet after the end of the previous guardrail.
The driver of the van apparently fell asleep and the van travelled across the Port Chicago off-ramp and struck the front end of the second stretch of guardrail running along the right side of the off-ramp. The van continued driving into the guardrail, then went down an embankment to the right of the guardrail. At the bottom of the embankment was another state highway. The van entered this highway, collided with another vehicle, and burst into flames. Plaintiffs suffered severe burns.
Plaintiffs filed the instant lawsuit against Caltrans and other defendants not at issue in this appeal. The operative first amended complaint alleges Caltrans is liable for a dangerous condition of public property including "[a] failure to provide and/or maintain an adequate and safe guardrail" and "[a] design and/or construction and/or maintenance resulting in an unsafe and dangerous guardrail." Caltrans moved for summary judgment or summary adjudication on two grounds: first, the property was not in a dangerous condition; and second, Caltrans was shielded from liability in any event by the affirmative defense of design immunity (§ 830.6).
The trial court granted Caltrans's motion for summary judgment, finding Caltrans established design immunity. The court did not decide whether the accident location was a dangerous condition of public property. Judgment was entered in favor of Caltrans.
Plaintiffs filed a motion for a new trial, which was denied.
DISCUSSION
" 'A trial court properly grants a motion for summary judgment where "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." [Citation.] "Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ' "We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained." ' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." ' " (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton).)
I. Design Immunity
Plaintiffs argue the trial court erred in finding Caltrans established design immunity. We agree with respect to the absence of a guardrail, but disagree with respect to the guardrail end treatment.
"A public entity may be liable for injuries caused by dangerous conditions of public property. [Citations.] An entity may avoid liability, however, through the affirmative defense of design immunity. (§ 830.6.) 'A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.' " (Hampton, supra, 62 Cal.4th at pp. 342-343, fn. omitted.)
Section 830.6 provides, in relevant part: "Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor."
A. Background
In 2007, Caltrans was performing, through a contractor, a pavement rehabilitation project on an area including the Port Chicago off-ramp. After becoming aware of cracks in the soil by the off-ramp, Caltrans requested a quote from the contractor for certain additional work, including "[r]emove the existing [guardrail]" on the Port Chicago off-ramp and "[r]econstruct the [guardrail] with an updated end treatment." An end treatment is an additional feature connected to the end of a guardrail as a safety device. The existing guardrail had a "flared" end.
The contractor recommended the replacement guardrail use a "Type ET Terminal System (A77L3)" and a "Type WB Transition (A77J4)." Detailed plans for this type of end treatment and transition system appear in Caltrans's Standard Plans. The end treatment is designed to act as a "crash cushion" if a vehicle collides with the end of the guardrail, by allowing the car to push the end treatment along the guardrail and slow the vehicle down gradually. Two Caltrans engineers approved the recommendation. The work was characterized in Caltrans's "Contract Change Order" form as "remove existing metal beam guard rail and reconstruct with an updated end treatment."
B. The Absence of a Guardrail
Plaintiffs first argue Caltrans failed to establish any plan or design with respect to the lack of a guardrail on the portion of the Port Chicago off-ramp in between the two guardrails. Plaintiffs contend their complaint encompassed two dangerous conditions: first, the end of the guardrail which the van ran into, which failed to stop the van; and second, the absence of a guardrail in the immediately previous stretch of road. With respect to the latter, Plaintiffs' theory is, had the van struck a continuous guardrail, rather than the front end of a short stretch of guardrail, it would not have proceeded over the embankment.
As an initial matter, Caltrans contends Plaintiffs' complaint did not allege the absence of a guardrail constituted a dangerous condition or proximately caused Plaintiffs' injuries. Caltrans points to the complaint's description of the incident, which provides the van "br[oke] through a metal guardrail . . . . The metal guardrail gave way causing the vehicle to go down a steep embankment." However, the complaint also alleges the incident "was caused by [Caltrans] . . . for reasons including . . . [a] failure to provide . . . an adequate and safe guardrail . . . ." Although this language could be construed to mean the provision of a guardrail that was not adequate and safe, it could also be construed to mean the guardrail was an insufficient length. "[N]ew factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1257.) Plaintiffs' complaint, construed broadly, encompasses the theory that the lack of a guardrail constitutes a dangerous condition and caused Plaintiffs' injuries.
Although Plaintiffs do not so argue, we note that Caltrans did not raise this argument below. "When a plaintiff opposes a motion for summary judgment or adjudication by raising an 'unpleaded issue,' the defendant's failure to 'object to [the] injection of [the] unpleaded theory' constitutes a 'waive[r].' [Citations.] The purpose of this objection requirement is to ensure that, if the objection is sustained, the plaintiff has an opportunity to request leave to amend the pleading to raise the unpleaded theory." (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1448.)
We turn next to whether the evidence submitted demonstrates a design to leave a portion of the roadway without a guardrail. The parties cite three cases addressing when a reasonable inference exists that an element omitted from a design or plan was in fact considered and rejected. Plaintiffs rely on Cameron v. State of California (1972) 7 Cal.3d 318 (Cameron), in which a car lost control after entering "a steep downgrade with a rather sharp 'S' curve." (Id. at p. 321.) The plaintiffs sued the state, alleging "the curve was so improperly graded or banked that an automobile could not negotiate the curve even though going at a lawful speed." (Id. at p. 322.) The state produced design plans for the section of the highway, but the plans did not include any information about superelevation. (Id. at p. 325.) Our Supreme Court explained: "The rationale behind design immunity 'is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.' " (Id. at p. 326.) Because "[t]he design plan contained no mention of the superelevation intended or recommended," the court reasoned, "the state has presented no evidence that the superelevation which was actually constructed on the curve in question in this matter was the result of or conformed to a design approved by the public entity vested with discretionary authority. Thus, there would be no reexamination of a discretionary decision in contravention of the design immunity policy because there has been no such decision proved." (Ibid.)
Caltrans argues Cameron is distinguishable, pointing to Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82 (Anderson) and Alvarez v. State of California (1999) 79 Cal.App.4th 720 (Alvarez), abrogated on another ground by Cornette v. Department of Transportation (2001) 26 Cal.4th 63. In Anderson, a car drove off a city road while trying to navigate a sharp curve; no signs warned drivers of the upcoming curve. (Anderson, at p. 86.) The plans submitted by the city did not include warning signs, but the court found Cameron distinguishable: "First, in such a comprehensive design as the one submitted to [the city], it is less likely that the omission of some feature commonly associated with a roadway was not a conscious design choice. Second, the banking of a curve is more intimately associated with sound design than is the inclusion of warning indicators appurtenant to the curve. Speed reduction signs, and other indicators warning of an approaching curve, may not be necessary in many cases in which the curve is adequately visible to approaching motorists, and where it may safely be negotiated at the existing speed limit. Finally, there was mention of signing in these plans, at least with regard to approaching street intersections, indicating inferentially, at least, that other forms of signing had been considered and rejected." (Id. at p. 90.) Similarly, in Alvarez, a car crossed a barrierless highway median and struck the plaintiff's vehicle. (Alvarez, supra, at p. 724.) The plans for this stretch of highway did not include a median barrier and the engineer who prepared the plans stated he omitted the barrier in conformity with design and safety standards then in effect. (Id. at p. 728-729.) The court found a reasonable inference that "omission of the barrier was a conscious decision." (Id. at p. 734.)
We find this case governed by Cameron, rather than Anderson and Alvarez. There may be circumstances in which the decision to install an end treatment on a guardrail indicates a deliberate decision not to extend the length of the guardrail. However, Caltrans was simply replacing an existing guardrail that had been damaged by erosion. There is no indication that extending or changing the length of the guardrail was considered at all, and no basis for us to so infer. The only design plans submitted were of the updated end treatment; there was no evidence of a comprehensive plan for the Port Chicago off-ramp. Accordingly, Caltrans failed to demonstrate entitlement to design immunity with respect to the lack of a guardrail on the portion of the Port Chicago off-ramp preceding the guardrail struck by Plaintiffs' van.
Caltrans submitted no evidence of plans for the original guardrail.
C. The Guardrail End Treatment
Plaintiffs also argue Caltrans failed to establish design immunity for the guardrail end treatment. We disagree with this contention.
Plaintiffs first argue the plans lacked the necessary detail to support design immunity. "There is no requirement that the design be expressed in any particular form. The plan need only be sufficiently explicit to assure that it is understandable to the employee giving the approval." (Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 385; cf. Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 370 ["the low standard set in Thomson" not met where the county "introduced no design at all . . . , even something as simple as a shop drawing"].) The end treatment plans here were a detailed engineering drawing that was part of Caltrans's Standard Plans. Plaintiffs point to the lack of information regarding the length and location of the guardrail. Although this information was not on the engineering drawing itself, other evidence submitted by Caltrans, including the change order, make clear that the guardrail was to replace the previous one. Plaintiffs also argue the design lacks information about the angle of the end treatment and the "site preparation, materials, installation instructions, how to secure the struts, how to install the cable anchor assembly, how deep to set the posts and how they are to be secured in the ground, etc." Plaintiffs cite no evidence creating an issue of fact as to whether the absence of this information made the plan not understandable to the employee giving approval.
As discussed above, we agree with Plaintiffs that this does not give rise to a reasonable inference that a longer guardrail was considered.
Plaintiffs make several other assertions in this section of their brief, including that Caltrans did not design or test the end treatment. Plaintiffs do not explain how these assertions relate to the issue of whether the plan lacked the necessary detail.
Plaintiffs next contend there is an issue of fact regarding whether the built end treatment conformed to the design. Andrew Baskerville, the Caltrans senior engineer who approved the work, averred in a declaration it took place on October 18, 2007, and submitted an "Extra Work Detail Report" stating the work "remove and replace [guardrail] @ pt chicago" pursuant to "CCO No: 016", the contract change order for this work is identified as "CCO 16", was performed on that date. A "daily diary" for that date signed by a Caltrans assistant engineer does not indicate any problems or concerns. Baskerville averred: "an assistant resident engineer will typically only note in their daily diaries problems or deviations from construction plans/drawings that are not in conformity with the approved plans/drawings. The fact that no problems or deviations were noted in the daily diary of the assistant resident engineer tasked with inspecting MBI's guardrail work on the Port Chicago off-ramp, leads me to the conclusion that MBI constructed the Type WB Transition (A77J4) and Type ET Terminal System (A77L3) in conformity with the Standard Plan drawings." Caltrans also submitted a receipt showing Caltrans paid the contractor for the work, and Baskerville stated: "Caltrans does not pay for work completed unless the completed work was inspected and conformed with pre-approved plans/drawings. . . . This receipt of payment also leads me to the conclusion that MBI constructed the Type WB Transition (A77J4) and Type ET Terminal System (A77L3) in conformity with the Standard Plan drawings." Plaintiffs argue Caltrans failed to submit any "as built plans," but concedes as-built plans are not the only evidence sufficient to demonstrate the property was built to plan. The evidence submitted by Caltrans is sufficient.
We reject Plaintiffs' attempt to create a dispute of fact as to when the work was performed. They point to the notation on the daily diary that the subcontractor worked on "remove of k-rail," but ignore a handwritten notation indicating "[r]emove and [r]eplace MBGR [metal beam guardrail]." They also point to a record of the contractor indicating that on October 21, 2007, the contractor removed and installed guardrail but, as Caltrans points out, there is no indication that this work was performed on the Port Chicago off-ramp.
Plaintiffs' final contention with respect to this issue is that the evidence shows the end treatment built differed from the one depicted in the design. Plaintiffs' sole evidence is portions of an expert declaration excluded by the trial court. Plaintiffs challenge the exclusion of this evidence. The declaration was submitted by Joshua Harman, who provides no information about any relevant education, training, or licensing. He does not state he is an engineer. Instead, he identifies himself as the plaintiff in what is apparently a qui tam action against the manufacturer of the guardrail end treatment installed here; he is also the owner of a company that manufactures guardrails. Harman avers, "[t]hrough my companies, I have been in the business of manufacturing and installing guardrails for nine (9) years," but he does not aver that he personally designed or installed guardrails. He avers he inspected numerous crash sites and end treatments, but again fails to establish any education or training. Harman's declaration claims there are two differences between photographs of the end treatment installed on the Port Chicago off-ramp and the design submitted by Caltrans: the "guide channels" are four inches rather than five inches, and are connected to the "extruder throat" by "a fillet weld" rather than a "butt weld[]." Caltrans objected to Harman's declaration and submitted an opposing declaration from a licensed mechanical and civil engineer stating the design requires neither five inch guide channels nor butt welding to the extruder throat. The trial court sustained Caltrans's objections to Harman's statements regarding the differences between the plans and the built guardrail, finding he "lacks the expert qualifications to give such an opinion; his testimony is also speculative and lacks foundation." In light of Plaintiffs' failure to establish Harman's relevant expertise, the trial court's ruling was not an abuse of discretion.
Although the trial court noted Harman was involved in a lawsuit against the end treatment manufacturer and owned a business that "apparently is a competitor of" the manufacturer, it did not exclude Harman's testimony on those grounds.
Although it is an open question whether evidentiary rulings on summary judgment are reviewed for abuse of discretion or de novo (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), Plaintiffs do not contend the appropriate standard of review is de novo and have therefore forfeited any such argument.
In sum, although Caltrans did not establish design immunity with respect to the lack of a guardrail, it did establish the immunity with respect to the guardrail end treatment. As Plaintiffs argue, "[i]f a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered." (McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 975.) We therefore cannot affirm the trial court's order based solely on design immunity.
II. Dangerous Condition of Public Property
Caltrans argues we can affirm the trial court's order on the alternative ground that the property is not a dangerous condition as a matter of law. Because we affirm the trial court's conclusion that Caltrans has established design immunity with respect to the guardrail end treatment, we need not decide whether the end treatment constitutes a dangerous condition of public property. With respect to the lack of a guardrail, we find Caltrans has established it is not a dangerous condition of public property.
Although we are affirming in part on a ground not relied on by the trial court, "supplemental briefing is not required under Code of Civil Procedure section 437c, subdivision (m)(2) because the ground on which we rely has already been briefed on appeal." (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1175, fn. 16; accord, Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1147, fn. 7.)
Section 835 "provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition 'created a reasonably foreseeable risk of the kind of injury which was incurred' and either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on 'actual or constructive notice' of the condition in time to have taken preventive measures. [Citations.] A dangerous condition is one that 'creates a substantial risk of injury' when the property is 'used with due care in a manner in which it is reasonably foreseeable that it will be used.' " (Hampton, supra, 62 Cal.4th at pp. 347-348.)
A. Background
Between January 1, 2000 and the day before the accident, there were no accidents at this location. During this time, more than 17.5 million vehicles used the Port Chicago off-ramp. Visibility on the approach to the accident location is excellent and unobstructed.
Plaintiffs submitted a declaration of Dale R. Dunlap, a registered engineer, stating that the Caltrans Traffic Manual, as updated in 1998 and 2012, sets forth a guideline to help determine whether a guardrail should be placed by an embankment. Dunlap explained that the guideline "is an evaluation of whether it would be worse for vehicle occupants to hit the guardrail or go over the embankment." Dunlap's crew conducted a field review, under his guidance, of the slope adjacent to the accident. Dunlap concluded, based on the slope of the embankment between the two stretches of guardrail, the Caltrans guideline indicated a guardrail should have been installed.
The Traffic Manual provides: "When considering installation of guardrail at an embankment or a fixed object the following criteria, although not an all inclusive list, may be used as a guide . . . ." The criteria are "Collision History," "Roadway Alignment," "Operating Conditions," "Climate Conditions," and "Roadside Recovery Area." The manual continues: "Installing guardrail to shield embankment slopes is largely a result of analyzing the above criteria on a case by case basis and determining whether a vehicle hitting guardrail is more severe than going over an embankment slope. A tool developed for evaluating this severity, . . . developed in the 1960s and updated in the early 1980s, is still applicable." The tool consists of a graph plotting the height and slope of embankments. A line marks when the severity of colliding with a guardrail is equal to a vehicle going over an embankment slope. When the slope and height combination fall above the line, "the severity of colliding with the guardrail should be less than the severity of a run-off-road vehicle going over the embankment." The manual concludes, "guardrail can be installed when the embankment height and slope plot above the band, and the criteria in Topic 7-03.3 [listed above] are considered." Based on the figures provided in Dunlap's declaration, the portion of the embankment unprotected by a guardrail plots somewhat above the line.
B. Analysis
Caltrans submitted undisputed evidence that visibility at the accident location was excellent and unobstructed. Caltrans also submitted undisputed evidence that out of more than 17 million cars travelling on the Port Chicago off-ramp in the ten years preceding this incident, there were no accidents other than the one involving Plaintiffs. Plaintiffs, in turn, submitted evidence that an accident involving a vehicle going over the embankment to the right of the Port Chicago off-ramp between the two guardrails will be more severe than a collision hitting a guardrail placed in that location.
At oral argument, Plaintiffs' counsel argued the location in which Caltrans searched its database for previous accidents was too small to cover the entire relevant area. Plaintiffs' counsel conceded this argument was not raised in the trial court or in their briefs on appeal; the argument is therefore forfeited. (People v. Thompson (2010) 49 Cal.4th 79, 110, fn. 13.) Moreover, the length of the location covered by Caltrans's search is not apparent based on a review of the portion of the record referred to by counsel.
Caltrans claims the trial court excluded this evidence on Caltrans's objections. The trial court's order indicated it was sustaining a foundation objection to an exhibit to Dunlap's declaration containing the field notes of his crew measuring the slope of the embankment. However, the trial court overruled objections to the paragraphs of Dunlap's declaration analyzing the slope of the embankment and discussing the application of the state guideline to this property. We need not decide whether the exclusion of the exhibit necessarily excluded Dunlap's analysis reciting the data from his crew because, as discussed below, we reject Plaintiffs' argument that this evidence created a triable issue of fact.
There are "a number of factors to be considered when a court makes a determination of whether a given condition of public property is minor or insignificant as a matter of law. The court should consider both the physical description of the condition, and 'whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract [description] would indicate.' [Citation.] Where appropriate, the court should consider not only the intrinsic nature and quality of the condition, but also other factors such as the time and place of the occurrence. [Citation.] 'Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.' " (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)
The undisputed evidence demonstrates the condition of the roadway itself was not a dangerous condition; in other words, there was no substantial risk that drivers using due care would drive off the road past the shoulder. Although the absence of previous off-the-road accidents at this location is not dispositive, it is highly relevant, particularly where Plaintiffs have identified no elements of the roadway itself rendering such accidents likely. (Salas v. California Department of Transportation (2011) 198 Cal.App.4th 1058, 1071 ["Caltrans offered evidence that no other collisions involving pedestrians had occurred in a 10-year period, although over 30 million vehicles had passed through the intersection. While this evidence is not dispositive on the issue of dangerousness, it is a relevant consideration."]; Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 379 ["The paucity of accidents occurring during this time [the four and one-half years before the plaintiff's accident] clearly indicates that the intersection was a safe one except for drivers [not using due care]."].)
Plaintiffs argue the unprotected embankment constitutes a dangerous condition. Caltrans responds that Plaintiffs are merely describing the absence of a preventative safety measure which, alone, does not constitute a dangerous condition. For this proposition, Caltrans cites City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21 (San Diego). In San Diego, a car turning left on a city street at dusk was struck by an approaching car engaging in an illegal street race and driving without headlights. (Id. at p. 26.) It was undisputed that the street was straight with unobstructed visibility; illegal street races frequently took place on the street; and the intersection in question was not well lit at night. (Id. at pp. 27, 30-31.) The Court of Appeal concluded there was no dangerous condition as a matter of law: "We cannot conclude the roadway was inherently defective at the time of this accident. Despite the lack of lights, there is no claim that if used by all drivers in the manner intended there is some inherent defect in the roadway where the accident took place." (Id. at p. 30.) As for the absence of lighting, the court found that "without a showing of previous accidents caused by poor lighting, we are led to conclude that the lighting is sought as a preventative safety measure. As such, it does not describe a defective physical condition." (Id. at p. 31.) Plaintiffs' reply brief makes no attempt to distinguish San Diego or otherwise respond to this argument. We agree with Caltrans that, as in San Diego, the lack of a guardrail alone does not render the property a dangerous condition.
McKray v. State of California (1977) 74 Cal.App.3d 59 (McKray), cited by Caltrans, is also instructive. In McKray, a car drove off a state highway, crossed the shoulder, straddled a berm, and struck a concrete abutment. (Id. at p. 61.) The stretch of highway was straight with excellent visibility, and had seen no other accidents in the previous five and one-half years. (Id. at pp. 61-62.) The plaintiff's expert opined that "if a guard rail had been placed at the edge of the shoulder near the abutment a less serious accident would have occurred." (Id. at p. 62.) The Court of Appeal affirmed summary judgment for the defense, finding the plaintiff's evidence "in no way suggests that absence of guard rails on this particular one-mile stretch of highway, where clear visibility is in no way obstructed, contributed in any way to any defective or dangerous condition. . . . No reasonable person could conclude that any risk of injury existed to one using the highway 'with due care in a manner in which it was reasonably foreseeable that it would be used.' " (Id. at pp. 62-63.) Again, Plaintiffs' reply brief made no attempt to distinguish McKray.
The court noted the plaintiff's expert provided statistics about guardrail safety "but did not relate such statistics to this one-mile stretch" where the accident occurred. (McKray, supra, 74 Cal.App.3d at p. 62.) While Plaintiffs' expert here did discuss the slope of the embankment next to the Port Chicago off-ramp, McKray's conclusion—that the absence of a guardrail did not create a dangerous condition where visibility on the roadway was excellent and there had been no other recorded accidents for several years—is still applicable. --------
We conclude Caltrans has demonstrated the lack of a guardrail on the stretch of the Port Chicago off-ramp preceding the guardrail struck by Plaintiffs' van does not constitute a dangerous condition as a matter of law. Because we conclude Caltrans prevails with respect to both of Plaintiffs' theories—the guardrail end treatment and the lack of a guardrail—we affirm the trial court's order granting summary judgment.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.