Opinion
B217314
12-20-2011
ERIC SLIMKO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Kane Law Firm, Brad S. Kane; Markson Pico and Brett Markson for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Amy Jo Field and Blithe S. Bock, Deputy City Attorneys, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. EC044348)
APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph Kalin, Judge. Affirmed.
Kane Law Firm, Brad S. Kane; Markson Pico and Brett Markson for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Amy Jo Field and Blithe S. Bock, Deputy City Attorneys, for Defendant and Respondent.
Eric Slimko sued the City of Los Angeles (City) alleging a claim for personal injuries caused by a dangerous condition of public property. (Gov. Code, §§ 830, 835.) A jury returned a special verdict in which it answered "no" to this question: "Was the property in a dangerous condition at the time of the accident?" The trial court thereafter entered judgment in favor of the City in accord with the jury's special verdict. Slimko appeals. We affirm.
FACTS
On Friday, January 6, 2006, Robert Mitcheltree, Adam Steltzner, and Eric Slimko, all engineers at the Jet Propulsion Laboratory, met at Pepe's restaurant at about 4:00 p.m. to "relax" at the end of a workweek. They consumed chips, salsa and margaritas until about 6:00 p.m. According to Steltzner's trial testimony, they had three rounds of drinks. Mitcheltree and Slimko left in Mitcheltree's Dodge Ram pickup truck. At about 6:30 p.m., Mitcheltree drove his pickup truck through a 10 foot by 5 foot "patch of sand" on the roadway in a foothill area on Haines Canyon Avenue near St. Estaban Street and Mistletoe Road. Mitcheltree lost control of his pickup truck, ending in a rollover accident that crushed the truck's cab. Mitcheltree was killed. Slimko suffered serious and permanent injuries, including loss of 10 percent of his frontal lobe, permanent disfigurement, and loss of vision in one eye.
In February 2007, Slimko sued the City. In July 2007, Slimko filed his operative second amended complaint, alleging a claim for injuries caused by a dangerous condition of public property. In April 2009, the case was tried before a jury. Slimko's appeal claims an error in jury selection, and evidentiary and instructional errors. We discuss the factual and procedural background in more detail below in addressing Slimko's claims on appeal.
Slimko also sued DaimlerChrysler, the manufacturer of Mitcheltree's pickup truck. A copy of the civil case summary included in the clerk's transcript shows that DaimlerChrysler settled with Slimko during the litigation, and that the trial court granted the company's motion for a determination of good faith settlement. DaimlerChrysler is not involved in the current appeal, and, other than this historical notation, we ignore the company in this opinion.
Slimko's operative pleading also alleged a cause of action for "negligent road design and maintenance." Slimko's "negligence" claim was not submitted to the jury.
On April 24, 2009, the jury returned a special verdict with the following findings:
"1. Did the City of Los Angeles own or control the property?
X Yes ____ No [¶] . . . [¶]
"2. Was the property in a dangerous condition at the time of the accident?
__ Yes X No"
Viewed in the light of the jury instructions (see CACI No. 1102), which closely mirrored language in Government Code section 830, subdivision (a), the verdict shows the jury found that the 10 foot by 5 foot patch of sand on the roadway did not constitute "a condition of public property that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in a reasonably foreseeable manner." Having answered "no" to Question 2, the jury — as directed by the special verdict form — did not answer any of the remaining questions dealing with issues such as the City's notice of the dangerous condition and causation.
On May 27, 2009, the trial court entered judgment in favor of the City in accord with the jury's special verdict.
Slimko filed a timely notice of appeal.
DISCUSSION
I. The Juror Selection Issue
Slimko contends the judgment must be reversed because the trial court erred in denying his challenge for cause to a prospective juror. We disagree.
A. The Governing Law
The right to a trial by an impartial jury is fundamental. (Liebman v. Curtis (1955) 138 Cal.App.2d 222, 226.) A prospective juror may be challenged for cause based upon his or her actual bias. (Code Civ. Proc., § 225, subd. (b)(1)(C).) Actual bias means "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Ibid.) In the trial court, a prospective juror's actual bias need not be proven with "unmistakable clarity"; it is sufficient that the trial judge is "left with a definite impression" that the prospective juror would be unable to decide the case before the juror impartially. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1146-1147.) On review, "if the juror's statements are equivocal or conflicting, the trial court's determination of the juror's state of mind is binding. If there is no inconsistency, we will uphold the court's ruling if it is supported by substantial evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 357.)
B. The Voir Dire
Voir dire took place on April 8 and 9, 2009. During the morning of April 9, Prospective Juror M.J. was called for examination. M.J. stated he was a lawyer with the California Department of Justice, that he worked on criminal cases doing "mostly appellate work," and that he had served on two previous juries. His work did not involve drunk driving or similar issues. M.J. stated that drinking and driving was "a huge problem," but believed that "zero tolerance is probably not a realistic way" to address the problem. M.J. stated he could set aside his own training and experience, and consider the evidence in the case. M.J. acknowledged that he was "open to the idea" that, even if someone had been drinking and driving, a crash might be caused by some other factor. M.J. admitted that he had driven a car after having had a drink.
Before the lunch recess, with Prospective Juror M.J. on the panel, the trial court indicated, "The peremptory is with the plaintiff," and Slimko's counsel replied, "The plaintiff is satisfied with the jury as presently constituted." The City's trial counsel exercised a peremptory, prompting the defense to exercise a peremptory. The City then exercised another peremptory, at which point the trial court noted there were only 11 "people in the box," and that the plaintiff "still ha[d] one peremptory." The court made some housekeeping comments, and the proceedings were recessed for the lunch break.
After the lunch recess, the court clerk called three additional prospective jurors for examination, including B.J. When asked whether he knew anyone with a relationship to the parties, B.J. stated that his mother worked for the City, explaining she was a teacher for the Los Angeles Unified School District. B.J. expressed his belief that "you're impaired when you drink, even one drink," and that, if there is an accident, "the first thing that someone should look at is[,] was intoxication involved with that accident." B.J. also stated that he "[did not] like the idea of the City paying out money to someone" because "the City, the state, the country is already in deep debt." When directly asked whether he would be able to set aside his beliefs, and follow the instructions and the law, B.J. answered, "I would have to, wouldn't I?" When asked whether he would be "comfortable" following the law, B.J. answered, "I wouldn't be comfortable, no." In response to further questions, B.J. explained: "I would follow court's instructions, but, I mean, I know that my life experience is going to have . . . some bearing on . . . you know, my final judgment." In response to still further inquiries, B.J. stated, "I believe we all deserve an equal hearing," but added, "I will be bringing in some of my own biases, I'm sure, just from living. We've talked about alcohol. There's been mention of how we regard the police, and I have strong feelings about things like that. So I believe that's going to come into play."
At the conclusion of the examination of Prospective Juror B.J. and the other two then-newly called prospective jurors, the trial court and the lawyers retired into chambers to address challenges for cause. In opening the discussion, the trial court expressed its view "ahead of time" that what it had seen during voir dire was "people just trying to get off the jury." The court then invited challenges for cause, advising the lawyers, in the event they made a challenge for cause, to "establish a record." Slimko's counsel challenged B.J. for cause. The trial court expressed its impression that B.J. was "doing everything he [could] to get off [the] jury," and had "just slewed everything to get off [the] jury." The trial court denied the challenge.
The court and the lawyers returned to the courtroom, and, with Prospective Jurors M.J. and B.J. sitting in the jury box, the trial court asked Slimko's counsel if he would like to use his final peremptory challenge. Slimko's counsel thanked and excused Prospective Juror M.J, leaving B.J. to sit as a trial juror.
C. Analysis
Before we may consider Slimko's contention that the trial court erred in denying his challenge for cause to Juror B.J., we must first address the City's contention that Slimko is foreclosed from raising his claim on appeal. According to the City, Slimko's juror challenge issue "cannot be heard [on appeal] since he had a peremptory challenge left when he accepted . . . juror [B.J.]." The City misreads the cases on this point of law.
While a party must have exhausted all of his or her peremptory challenges in the trial court before bringing a claim on appeal that a juror was biased (Kimbley v. Kaiser Foundation Hospitals (1985) 164 Cal.App.3d 1166, 1169), this rule does not, as the City suggests, have a timing element with regard to any particular point in the voir dire process. Rather, the exhaustion rule cited by the City is based on the common sense principle that a party may not announce that he or she is satisfied with a jury panel, and does not wish to use his or her remaining peremptory challenges, and then be allowed to argue on appeal that it was impossible to secure an unbiased jury. (Ibid.) In short, when a party keeps unused peremptory challenges in his or her pocket, the party is not allowed on appeal to complain about the make-up of the jury. We have no quarrel with this rule, but it does not apply in Slimko's present case.
This is the better rule to be applied in Slimko's present case: when the trial court wrongly denies a valid challenge for cause, leaving the challenging party to use one of his or her peremptory challenges on a particular juror, and effectively disallowing the party a peremptory challenge that he or she otherwise could have used elsewhere, the party may argue the wrongful denial of the challenge for cause on appeal. In other words, where a party is effectively given one less peremptory challenge than that to which he or she was entitled, a claim that the trial court erred in denying the challenge for cause may be raised on appeal. (Leibman v. Curtis, supra, 138 Cal.App.2d at p. 226.)
The fact that Slimko's counsel had accepted Prospective Juror M.J. at one point in the voir dire does not give us pause in our conclusion. Voir dire is a dynamic, evolving process; a juror who may appear acceptable in one configuration, may appear unacceptable after a change to the configuration wrought by the opposing party. The alleged problem in this case is that Slimko only had one peremptory challenge left at a point in time when Prospective Jurors M.J. and B.J. were both still in the jury box. Had the trial court granted Slimko's challenge for cause to the Prospective Juror B.J., then Slimko could have used the last peremptory in his quiver to further massage the jury panel as he believed needed by dispatching Prospective Juror M.J. If in fact the challenge for cause was wrongly denied, Slimko was placed in a dilemma of choosing between two jurors, both of whom he viewed as undesirable for his jury. What is critical for his appeal is that Slimko used up all of his peremptory challenges, allowing our court to hear on appeal his claim that a challenge for cause — regardless of when his last remaining peremptory challenge was made — should have been granted.
We now turn to the merits of Slimko's claim of juror challenge error. We see no such error. Slimko argues Juror B.J. was actually biased. As noted above, we must affirm the trial court's determination of no actual bias in the event that determination is supported by substantial evidence. It is. In our view, the record shows no more than Juror B.J.'s acknowledgement that he would bring his own perspectives to the case, "just from living." This does not show actual bias. All jurors bring their own personal backgrounds to a case. What we find dispositive under the substantial evidence test is that Juror B.J. stated that he would set aside his beliefs and follow the court's instructions, and that he believed everyone was entitled to a fair hearing. Whatever negative tenor comes through in B.J.'s statements, we discard those sentiments under the substantial evidence test because the trial court expressly found he was just trying to sound negative to get out of serving on the jury. Juror B.J. simply did not, as Slimko argues in his opening brief on appeal, "expressly state[] that he could not act impartially." We do not see support for the juror challenge error raised by Slimko on appeal, particularly when the record is examined in light of the applicable standard of review on appeal.
II. The Instructional Error Claims
A. Refusal to instruct on concurrent causation
We summarily reject Slimko's claim that the judgment must be reversed because the trial court erred in refusing his proposed jury instructions on "concurrent causation." No judgment shall be reversed for instructional error unless the error prejudiced a party. (See Cal. Const., art. VI, § 13.) The jury found the roadway at issue was not a dangerous condition of public property. Slimko's case ended with that finding. Causation never became an issue for the jury. Because the instructional error alleged by Slimko on appeal concerns an issue which the jury never considered, it is impossible that he was prejudiced by the alleged error. (Murrell v. State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 271.)
B. Refusal to instruct with special jury instructions
C. Slimko contends the judgment must be reversed because the trial court erred in refusing his special jury instructions on "due care" as that element related to the issue of whether the roadway was a dangerous condition of public property. We disagree.
1. The Special Instructions
Slimko proffered the following three special instructions, which the trial court refused:
No. 6: "The fact that the dangerous condition would not have resulted in injury to the Plaintiff without the additional misconduct/negligence of the driver is no defense to the claim against the public entity."
No. 7: "A third party's negligence does not negate the existence of a 'dangerous condition.' If the third party's negligence or criminal conduct is foreseeable, that conduct may be the very risk that makes the public property dangerous when considered in conjunction with some particular feature of the public property."
No. 8: "A condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally. The Plaintiff is not required to prove that the specific negligent third-party used the property with due care."
2. Analysis
Slimko's argument does not persuade us to reverse the jury's verdict because he has not shown us that the trial court's instructions, in their composite, did not adequately convey to the jury the law governing a dangerous condition of public property. The trial court instructed the jury with a number of standard CACI instructions on Slimko's claim that he was injured by a dangerous condition of public property, including, among others, CACI Nos. 1100 (factual elements of the claim) and 1102 (definition of "dangerous condition"). The trial court also instructed the jury on "apportionment of responsibility" (CACI No. 406), and causation (CACI No. 432), generally conveying to the jurors that a person's injuries could be caused by more than one factor. They also specifically conveyed to the jurors that there were issues in the case whether, and to what percentage, Slimko had been injured by the City's acts and by Mitcheltree's acts. We do not agree with Slimko's argument that the trial court's refusal to give his special instructions amounted to a judicial "decree" to the jurors that governmental immunity applies in all cases where there is third party negligence. (He cites Johnson v. State of California (1968) 69 Cal.2d 782, 798.) In fact, the trial court's instructions adequately conveyed the law governing a dangerous condition of public property. Even if Slimko's special jury instructions were correct statements of law and not argumentative, we are not persuaded that the court abused its discretion in denying the instructions.
3. Failure to instruct on title 17 of the California Code of Regulations
We summarily reject Slimko's claim that the judgment must be reversed because the trial court reneged on a midtrial "promise" to instruct the jurors on the requirements for alcohol testing prescribed by title 17 of the California Code of Regulations (title 17). The jury found the roadway was not a dangerous condition of public property. The jury did not go further to consider the issue whether and/or to what extent Mitcheltree's intoxication contributed to Slimko's injuries. Because the instructional error alleged by Slimko on appeal concerns an issue which the jury did not consider, he could not have been prejudiced by the alleged error, and we will not reverse.
III. The Primary Claims of Evidentiary Error
Slimko contends the judgment must be reversed because the trial court prevented him from presenting "essential expert testimony necessary" to establish his claim that the accident was caused by a roadway that was a dangerous condition of public property. We disagree.
A. The Trial Proceedings
Before trial, the City filed a motion in limine to preclude the police officers who responded to the accident scene from giving "expert testimony" on the dangerousness of the roadway, and the cause of the accident. The trial court ruled that Slimko could offer the officers' testimony regarding objective facts as "what he or she . . . found in terms of skid marks, roll over, what they hit, [and] everything else," but that the officers would not be allowed to testify as to their "conclusions" based on their observations. The court ruled that Slimko's experts could testify as to their conclusions based on the facts that the officers recorded at the accident scene.
During trial, Slimko called John Squier as an expert witness on "road and traffic design, construction, operation and maintenance." During the course of his testimony, Squier offered his opinion "that there was a dangerous condition out there at the time of accident because [there was] sand in the travel way where the cars drive and the fact that there [were] no warning [signs] of that condition at the time of the accident." There followed a series of questions from Slimko's counsel to expand on Squier's opinion. There also followed a series of objections from the City's counsel, and a series of rulings from the trial court to which Slimko assigns error on appeal. We address specific questions, objections, and rulings below.
The City's expert, Robert Crommelin, offered a different opinion. Crommelin testified that the roadway was not a dangerous condition of public property because the patch of sand was "obvious" to drivers using reasonable care, it was sufficiently to the right side of the roadway that, if a person was concerned, he or she could "move past it still being on your side of the road," and "people drive through that area with straight wheel paths."
B. Analysis
We start with the motion in limine. Slimko is correct that a police officer " 'who has spent years investigating accidents in which he has been required to render official reports not only as to facts of the accidents but also as to his opinion as to their causes' " may, when identified as an expert witness, give expert opinion on the manner in which a particular accident occurred. (See, e.g., People v. Haeussler (1953) 41 Cal.2d 252, 260; see also Robinson v. Cable (1961) 55 Cal.2d 425, 428.) But Slimko's argument does not persuade us that reversal of the jury's verdict is justified.
Even assuming Slimko is correct that the officers properly could have testified that the patch of sand on the roadway was a contributing "cause" of the accident, this does not show that the judgment should be reversed, not given the jury's finding that the roadway was not a dangerous condition of public property. In other words, we fail to see the value in Slimko's argument for reversal based on his assertion that the trial court's ruling "left [him] to prove causation with [only] a paid accident reconstruction expert . . . ." (Italics added.) Because the evidentiary ruling challenged by Slimko on appeal concerns an issue — causation — which the jury never considered, it is impossible to say that he was prejudiced by the alleged evidentiary error.
According to Slimko, the officers' testimony would have been stronger than his expert's testimony because the officers were actually at the scene of the accident, and because they were not "paid" experts and, thus, may have been viewed as more objective.
We now turn to the evidentiary ruling errors that Slimko alleges occurred during expert Squier's trial testimony. Slimko first alleges that the trial court precluded Squier from testifying about the dangerousness of the patch of sand on the roadway. We do not agree. Although the questioning jumped around somewhat in response to the objections from the City's counsel, Squier testified that sand on a roadway is a problem because it interferes with the "interaction of the pavement surface and [a] vehicle's tires," which is "critical [in] controlling the vehicle." When Slimko's counsel started a line of questions about the road-cleaning policies of the California Department of Transportation (Caltrans) and the County of Los Angeles, the trial court sustained an objection by the City's counsel on the grounds that such evidence was not relevant. When Slimko's counsel then asked a question about the "difference if one of the tires is on a clean pavement and other tire would be on a substance such as sand," the trial court sustained an objection for lack of foundation. After the trial court sustained the objection for lack of foundation, Slimko's counsel moved onto another line of questioning. We do not see error in the rulings noted here. First, the trial court was correct that the road-cleaning policies of other government entities (or even of the City) were not relevant to the question whether the Haines Canyon Avenue roadway, as it existed at the place and time of the accident, was a dangerous condition of public property. Second, the trial court did not err in ruling that a proper foundation was required for an expert's proffered testimony on a subject. The fact that Slimko's counsel moved onto another subject without trying to lay a foundation does not make the court's ruling into error.
As noted, after the trial court's rulings discussed above, Slimko's counsel moved onto a new line of inquiry that went like this: "You testified, it's your opinion that at the time of the collision, the roadway was in a dangerous condition due to sand in the travel lane and no warning sign. [¶] Could you please explain your opinion about that lack of warning signs." And Squier answered: "Well, . . . one way to alleviate [a] dangerous condition is to provide warning of it. If the City had warned of the condition, [then] it would not be my opinion that there was a dangerous condition . . . ." Squier discussed a sample "slippery road" sign, explaining that such a sign could have been placed to warn drivers of the approaching slippery condition of the roadway ahead. Later during his testimony, Squier explained, without objection, that he had reviewed a number of materials showing that there was a history of "sand collection . . . after every rain" in the area where the accident had occurred. We do not see any error in the trial court's ruling during these parts of Squier's testimony.
In his opening brief on appeal, Slimko argues: "To establish the dangerous condition of the [roadway] and the City's failure to exercise due care," he should have been permitted to introduce evidence of the road-cleaning practices of Caltrans and the County of Los Angeles. He further argues: "Since custom in a relevant community may be considered in determining the proper standard of care, . . . in like manner, evidence of departure from custom may be admissible to show lack of due care." He cites a case involving a nongovernment defendant, Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 809, in support of his argument. Slimko is confusing negligence principles applicable to a private party with the law of dangerous condition of a public property. A government entity is liable for an injury caused by a dangerous condition on its property, i.e., a condition of property that creates a substantial risk of injury when the property is used by the general public in a reasonably foreseeable manner. (Gov. Code, § 830, subd. (a), § 835.) Whether or not the City acted in comport with a particular "standard of care" in maintaining the property is a different issue from whether the property, as it existed, posed a substantial risk of injury when it was used in a reasonably foreseeable manner.
IV. The Miscellaneous Evidentiary Error Claims
Slimko contends the judgment must be reversed because of the cumulative effect of a series of the trial court's evidentiary rulings that he contends were infected with error. We disagree.
Slimko contends the trial court erred by permitting the City to introduce evidence of the "absence of prior collisions." Because the record shows the trial court ruled that such evidence would be admissible only on the issue of whether the City had notice of a dangerous condition at the location of the accident (Gov. Code, § 835.2 [a public entity is not liable for a dangerous condition of its property unless it had actual or constructive notice of the condition]), we see no error. Apart from this, the discussion in Slimko's opening brief on appeal about "traffic collision summaries" is not helpful to his position. He has not shown us that any such summaries were actually introduced into evidence at trial; the references to the record provided in his opening brief on appeal encompass copies of traffic collision reports that were part of a motion in limine that he filed before trial. This fails to show that any traffic collision summaries, or any other kind of similar materials, were wrongly introduced during trial.
Slimko contends the trial court erred by permitting the City to introduce evidence of his blood alcohol level as "impeachment" evidence after at least one witness testified that Mitcheltree and Slimko only consumed three drinks. Assuming Slimko's blood alcohol level should have been excluded as irrelevant, as he was only a passenger and had no control over the accident vehicle (see Wineinger v. Bear Brand Ranch (1988) 204 Cal.App.3d 1003, 1007, disapproved on other grounds in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1103-1108), we find this does not require reversal. Because the jury ruled in favor of the City on the dangerous condition aspect of Slimko's case, the blood alcohol evidence could not have had any effect on the outcome of trial.
Slimko's blood alcohol level may have suggested that he consumed more than three drinks, which might have shown that the witness's memory was mistaken.
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Slimko contends the trial court erred in denying his motion in limine to exclude all evidence of postmortem blood alcohol level tests on a sample of Mitcheltree's blood and a sample of his liver. Slimko argues the test results were not admissible because the City did not lay a proper foundation for the test results. A proper foundation was lacking, argues Slimko, because there was no evidence showing substantial compliance with the testing procedures prescribed by title 17, nor any evidence establishing an adequate foundation of reliability under "traditional" test-qualifying standards. Slimko's argument relies heavily on People v. Adams (1976) 59 Cal.App.3d 559 at page 567. Even if the evidence of test results showing Mitcheltree's blood alcohol level should not have been admitted, we disagree that the error requires reversal of the judgment.
The problem with Slimko's argument for reversal is that he has offered little in support of a conclusion that the error adversely affected the outcome of his case at trial. This is the complete text of Slimko's prejudice argument: "[T]he trial court prejudicially erred by not excluding the unreliable post-mortem alcohol test results." That is it. In the absence of an explanation as to how the blood alcohol test results undermine the jury's finding that the roadway was not a dangerous condition of public property, we will not reverse the judgment. (Cal. Const., art. VI, § 13.) Mitcheltree's comparative fault for the accident never became an issue for the jury; the jury found the City was not liable in that its property was not in a dangerous condition.
Slimko contends the trial court erred in denying his motion in limine to exclude all evidence concerning the speed limit at the accident site, and all evidence tending to show that Mitcheltree had been "speeding" at the time of the accident. Again, even if an evidentiary error occurred, we disagree that the error had any effect on the judgment. Slimko's argument does not explain to us how the speeding evidence undermines the jury's finding that the roadway was not a dangerous condition of public property. (Cal. Const., art. VI, § 13.) The jury did not address Mitcheltree's comparative fault for the accident; the jury found the City was not liable because its property was not in a dangerous condition.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
BIGELOW, P. J. We concur:
FLIER, J.
GRIMES, J.