Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara, No. 1306126, James W. Brown, Judge
Stephen P. Wiley, City Attorney, Tom R. Shapiro, Assistant City Attorney, for Defendant and Appellant.
Law Office of Eric A. Woosley, Eric A. Woosley, Jordan T. Porter for Plaintiff and Respondent.
GILBERT, P.J.
Defendant City of Santa Barbara (City) appeals a judgment in favor of plaintiff Wayne Wilcox for $68,270 for personal injuries suffered in a fall. The jury found that Wilcox's injuries were caused by a dangerous condition on City property and that the City had notice of this condition. We conclude, among other things, that: 1) substantial evidence supports the judgment, and 2) the trial court did not err by allowing Wilcox's expert to testify about the standard of care. We affirm.
FACTS
Wilcox was a bus driver for the Metropolitan Transit District for eight years.
On the morning of July 1, 2008, Wilcox was getting off the bus at a bus stop at the end of his shift. He fell as he stepped down from the bus onto the sidewalk. He did not see that the sidewalk had a "raised edge." He twisted his ankle, landed on the ground, hit his head and was knocked unconscious.
The spot where he fell is City property. It was a "very busy corridor." It is a "designated" area "to load and unload passengers, " including children, seniors, the handicapped, and people in wheelchairs. Wilcox testified that the raised part of the sidewalk caused his fall.
Roy Wayne Harthorn, a building code consultant, testified that "the sidewalk where this accident occurred had been displaced by roots" of a tree. The natural process that raised the sidewalk took place over "a matter of years." The "vertical displacement ranged... from 1 and 5/16 inches to 1 and 7/16 inches" and that was "a cause of this accident." He said, "[T]his vertical displacement was a violation of the American[s] [with] Disabilities Act [ADA] Accessibility Guidelines, as well as the California Building Code [CBC]." The City had a duty to inspect the sidewalks. For a "pedestrian path, " the "maximum vertical displacement" under the ADA and CBC is one-half inch. Harthorn said a raised sidewalk is "more dangerous" at a bus stop because pedestrians who are stepping down from a bus "have a harder time seeing the vertical differentials."
Mark Sanders, Ph.D., an "ergonomics" expert, testified that "the vertical offset... creates a trap for someone who is stepping off of a bus." They cannot see the vertical edge when standing directly over it.
Jeff Brent, who testified for the defense, was the City's street maintenance coordinator. He said if there is a complaint about a sidewalk, the City will investigate. Brent said, "[I]f it is uplifted, then we'll try and make an immediate repair...." "[I]f it's just a crack and it's not really a trip hazard, then we'll just have to inform them.... [Y]ou're going to have to live with that." Brent said the City had no written policy for inspecting sidewalks. There is "an informal policy" to "just be vigilant and keep an eye out for flaws in the sidewalk, look for uplifts." In 2000, there was a complaint about a raised sidewalk near the area where Wilcox fell. He said the City keeps records of requests for repairs, but "[w]e don't keep reports of accidents."
On cross-examination, Brent said he considered raised sidewalks to be "dangerous to pedestrians." Because of the "high level of traffic" at a bus stop, it is "particularly important to maintain" that area. The City does not have anyone assigned to review the safety of sidewalks "on a regular routine basis."
DISCUSSION
Substantial Evidence
The City contends: 1) the evidence is insufficient to support any finding that the sidewalk condition was dangerous, and 2) there was no substantial evidence that the City had any actual or constructive notice of any dangerous condition. We disagree.
In deciding the sufficiency of the evidence, we view the record in the light most favorable to the judgment. (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1277.) We do not weigh the evidence or decide the credibility of the witnesses. (Ibid.)
The City's brief does not include all the material evidence in the record; the City primarily cites only the evidence favorable to its position. But the issue is not whether some evidence supports the defense, it is whether substantial evidence supports the judgment. "On appeal, we begin with the presumption that the record contains evidence sufficient to support the judgment." (Grassilli v. Barr, supra, 142 Cal.App.4th at p. 1278.) "It is the appellant's burden to demonstrate otherwise. The appellant's brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant...." (Id. at pp. 1278-1279.) "Where, as here, the appellant fails to set forth all of the material evidence, a claim of insufficiency of the evidence fails." (Id. at p. 1279.) But even on the merits, the result does not change.
A public entity may be liable for injuries caused by a dangerous condition on its property if it had constructive notice of that condition and neglected to take remedial action. (Straughter v. State of California (1976) 89 Cal.App.3d 102, 109.) "'As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts.'" (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 268.)
Courts must consider several factors in deciding the liability of public entities for injuries caused by defects on public access areas and sidewalks. These include the nature and "size of the defect, " as well as "circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract size would indicate." (Dolquist v. City of Bellflower, supra, 196 Cal.App.3d at p. 267.) Courts must consider whether the defect is trivial or substantial and whether the accident occurred in an area where "the view of the defect is obstructed." (Id. at p. 268.)
A public entity has constructive notice of a dangerous condition where: 1) the condition lasted for a sufficient continuous period (Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844-845), and 2) "the dangerous condition would have been discovered by a reasonable inspection" (Straughter v. State of California, supra, 89 Cal.App.3d at p. 109). "[W]hether the dangerous condition should have been discovered by reasonable inspection and whether there is adequate time for preventive measures is properly left to the jury...." (Erfurt, at p. 845.)
From Sanders' and Harthorn's testimony, the jury could reasonably infer that there was a dangerous condition at the bus stop. There was "a vertical displacement" of the sidewalk extending "from 1 and 5/16 inches to 1 and 7/16 inches." From Sanders' testimony, jurors could reasonably infer that this was a "trap" or a hidden defect for pedestrians. Harthorn said the danger is enhanced for someone leaving a bus because they would not be able to see the "vertical differentials." There was also photographic evidence.
The jury could also reasonably infer: 1) the condition had existed for a substantial period, and 2) that had the City conducted reasonable inspections, the defect would have been discovered. The vertical displacement was not new. Harthorn said it developed over "a matter of years." Brent admitted that because it was a bus stop with "a high level of traffic, " it was "particularly important to maintain" that area. He said there was an "expectation" that if City employees "see a raised elevation... that they'll report it... so that it will get fixed." But he admitted that the City did not have anyone to "look at the sidewalks to make sure they're safe on a regular routine basis." The City had no written policy for inspecting sidewalks and did not keep records of sidewalk accidents. Wilcox's counsel asked Brent, "[S]ir, you have no idea if anybody from the City... looked at the bus stop... from September 27, 2000 until July 1st, 2008, correct?" He responded, "I have no way of knowing that, yeah." The evidence is sufficient.
Expert Testimony
The City contends the trial court committed reversible error by allowing Harthorn to opine that the City violated the ADA and the CBC because of the dimensions of the "vertical displacement" of the sidewalk. We disagree.
"An appellate court may not disturb the trial court's ruling on the admissibility of opinion evidence absent an abuse of discretion." (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.) Even where the jury has some knowledge of the subject matter, "'expert opinion may be admitted whenever it would "assist" the jury'" in evaluating the evidence. (Weller v. American Broadcasting Companies (1991) 232 Cal.App.3d 991, 1007.)
The City filed a motion in limine to preclude Harthorn from giving opinions "as to the dangerous condition of the sidewalk." It claimed this was "an ultimate fact to be determined by the jury." "It is settled that 'an expert opinion is not inadmissible merely because it coincides with an ultimate issue of fact.'" (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702.) Moreover, as Wilcox notes, Harthorn's testimony was not merely a duplication of the evidence jurors would be able to see for themselves, it also involved the issue of the standard of care. This is an area where expert opinion may assist jurors and involve matters beyond their common experience. (Ibid.)
The City suggests that Harthorn's testimony posed the risk that jurors would believe that they had to accept his opinion. But the trial court instructed the jury, "You do not have to accept an expert's opinion. As with any other witness, it is up to you to decide whether you believe the expert's testimony and choose to use it as a basis for your decision." It told jurors, "You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence."
The trial court also instructed the jury on the legal standards for the issues of reasonable care, dangerous condition of public property, notice, causation, damages and comparative negligence. The City has not shown that these instructions were incomplete or inaccurate. It simply assumes the jury would ignore them and only use Harthorn's opinions as the applicable legal standard. But "[j]urors are... presumed to follow the instructions given by the court." (People v. Hamilton (1988) 45 Cal.3d 351, 375.) Absent evidence to the contrary, we must presume that the only standards they applied were the ones the court provided for them.
The City claims Harthorn's conclusions harmed its case, but that does not establish trial court error. In making safety evaluations about defective walkways or public access areas, experts properly consider safety rules and statutory standards, such as the ADA and CBC requirements. (See, e.g., Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 21, 29; Madden v. Del Taco, Inc. (2007) 150 Cal.App.4th 294, 302, fn. 3; California Service Station Etc. Assn. v. American Home Assurance Co. (1998) 62 Cal.App.4th 1166, 1178-1179; Sapp v. W.T. Grant Company (1959) 172 Cal.App.2d 89, 93 [violation of industry rule "'would be a circumstance for the jury to consider on the issue of respondent's negligence'"].)
But the critical issue here was not whether the incline's dimensions exceeded code, it was whether its location at the bus stop, hidden from view, increased the risks. Wilcox's experts said it did; the City disagrees. But courts are not required to exclude expert opinions simply because the opposing party rejects them. The City suggests that the admission of the ADA and code evidence caused jurors to decide the case on code compliance. The jury deliberated on the correct issue and found there was a dangerous condition. Moreover, there was no unfairness. The City had the opportunity to cross-examine Harthorn, to impeach his conclusions, and present opposition evidence. There was no abuse of discretion.
Nor has the City shown a reasonable likelihood of a different result if Harthorn had not testified. The jury had photographs and there was additional expert testimony. Sanders testified that the "vertical offset really creates a trap for someone who is stepping off of a bus as Mr. Wilcox was doing at the time of the accident." His testimony showed that this was a hidden defect. He said, "When you're standing directly over this vertical offset you can't really see the vertical edge of it." Brent said he considered "raised sidewalks in the city to be dangerous to pedestrians, " and much of his testimony on cross-examination supported findings favorable to Wilcox.
We have reviewed the City's remaining contentions and conclude it has not shown any error.
The judgment is affirmed. Costs on appeal are awarded in favor of respondent.
We concur: YEGAN, J., PERREN, J.