2012-00118693-CU-PO

Alyssa Rosales vs. City of Sacramento

Nature of Proceeding:   Motion for Summary Judgment

Filed By:  Womack, David S.

Defendant City of Sacramento’s motion for summary judgment is granted.

Plaintiff Alyssa Rosales brings this action for premises liability alleging that she was
injured when her and her father were playing in a mister/water play area at Shasta
Community Park.  In her lone remaining cause of action, she alleges that the property
was in a dangerous condition.

Plaintiff’s request for judicial notice is denied.  Plaintiff seeks to have the Court take
judicial notice that pursuant to Evidence Code § 452(g), “[i]t is a matter of common
knowledge that running a water mister continuously will cause a larger, denser cloud of
mist than running a mister in short bursts.”  As City correctly points out, it is not a
matter of common knowledge that “running a water mister continuously will cause a
larger, denser cloud of mist than running a mister in short bursts.”

City’s unopposed request for judicial notice is granted.  City seeks to have the Court
take judicial notice that “It is common knowledge that getting water in your eyes may
temporarily cause blurred vision.”  This is a proper subject of judicial notice pursuant to
Evidence Code § 452(g) and Plaintiff does not argue to the contrary.

City’s separate statement includes the following.  Shasta Community Park is a
community park located at 7407 Shasta Avenue in Sacramento.  Plaintiff claims that a
dangerous existed at the Park in that it contained a fountain with cement blocks
interspersed throughout and a fine fog/mist that obscured vision.  Plaintiff was injured
on July 3, 2011.  Plaintiff was being carried by her father Ignacio Rosales (“Mr.
Rosales”) through the fountain when water got in his eyes and obscured his vision.
Mr. Rosales walked into a concrete wall near the fountain and fell.  Plaintiff injured her
head in the process.

The Park is operated by City and maintained by the City’s Department of Parks and
Recreation.  The Park was opened to the public in April 2009.  Dennis Day is a
licensed architect employed by the City And was the City’s project manager for the
Park’s design and development.  Callander Associates, Landscape Architecture, Inc.
was the City’s landscape architectural consultant on the Park project and Benjamin
Woodside, a landscape architect with Callander, was the principal designer.  Day
reviewed the completed design/construction drawing for the Phase 1 Park construction
which included drawings related to the Park’s mister/water area.
Gary Hyden is a licensed landscape architect employed by the City as a Supervising
Landscape Architect.  As part of his duties, Hyden reviewed and approved the
completed Phase 1 construction drawings for the Park.  James Combs is the City’s
Director of the Department of Parks and Recreation.  Combs approved the completed
construction drawings for the Park pursuant to his authority to exercise discretionary
approval for the design of park projects.  On April 29, 2008, the City Council approved
the contract specifications and authorized the contract to build the Park.  The
completed construction of the mister/water play area of the Park conforms to the
design approved by the City.  Both Day and Hyden opine that the design of the
mister/water play area is reasonable and does not present any unusual risks.

It was a clear and sunny day on the day Plaintiff was injured.  Prior to walking into the
mister/water area, Mr. Rosales noticed fine mists of water spraying from the poles and
saw a “cloud of mist” in the middle of the play area.  Prior to walking into the
mister/water area, Mr. Rosales could see through the cloud of mist and to the other
side of the play area.  Ignacio knew he was going to get wet prior to walking into the
play area.  Mr. Rosales carried Plaintiff into the play area, got water in his eyes and his
vision was obscured.  Ignacio continued walking, even though his vision was
obscured, until he walked into the concrete seat wall bordering the play area.  He lost
his balance and fell.  Plaintiff was injured when her head hit the ground.  Mr. Rosales
did not see any protrusion, depression, divot or any type of unevenness in the walking
surface in the play area.  He did not notice any puddles, trash or other debris in the
play area at the time of the incident.  Mr. Rosales did not slip before he walked into the
seat wall, and he only fell because he did not see the seat wall.  Since the time the
Park opened, the only claim/complaint the City received related to the mister/water
play area at the Park is the instant claim by Plaintiff.

The City seeks summary judgment on the basis that it is immune from liability pursuant
to Government Code § 830.6 because the design of the property is reasonable and
was approved by the City prior to construction.  Alternatively, the City seeks summary
judgment on the basis that Plaintiff cannot show that the property constituted a
dangerous condition as there was no defect or condition that created a substantial risk
of harm, or that the City had actual and/or constructive notice of the alleged dangerous
condition.

The Court first addresses the City’s argument that Plaintiff cannot show that the
property constituted a dangerous condition as it finds that issue to be dispositive.

Dangerous Condition

The City seeks summary judgment on the basis that the mister/water play area was
not dangerous as a matter of law.  It argues that Plaintiff cannot establish that the
mister/water play area was in a dangerous condition at the time of her injury or that it
had actual or constructive knowledge of any dangerous condition.

Gov. Code §§ 830-835.6 establish the parameters of public entity liability for an injury
caused by a dangerous condition of its property.  Plaintiff was required to show that (1)
a dangerous condition existed on the public property at the time of her injury; (2) the
condition proximately caused the injury; (3) the condition created a reasonably
foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or
constructive notice of the dangerous condition of the property in sufficient time to have
taken protective measures.  (Gov’t Code § 835.)

A “dangerous condition” is 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 is reasonably foreseeable that it will be
used.”  (Gov’t Code § 830(a).)  “The existence of a dangerous condition ordinarily is a
question of fact, but the issue may be resolved as a matter of law if reasonable minds
can come to only one conclusion.”  (Zelig v. County of Los Angeles (2002) 27 Cal.4th
1112, 1133.)  “A condition is not a dangerous condition within the meaning of this
chapter if the trial court 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 or adjacent property was used with due care in a manner
in which it was reasonably foreseeable that it would be used.”  (Gov’t Code § 830.2.)
A court is permitted to determine that a particular defect is trivial as a matter of law
“when reasonable minds can reach but one result.”  (Bartell v. Palos Verdes Peninsula
School District (1978) 83 Cal.App.3d 492, 497.)  To elucidate, under appropriate
circumstances a court may determine, as a matter of law, that a given walkway defect
is trivial. (§ 830.2.)

The City first argues that Plaintiff cannot show a dangerous condition because Plaintiff
cannot show an actual physical defect in the property at the time of her injury.  The
City argues that Plaintiff cannot make such a showing because Ignacio testified that he
did not notice any protrusion, or depression, or divot or any type of unevenness in the
walking surface at the time of the injury and did not notice any puddles, trash or debris
in the area.  Here, even if this evidence were sufficient to shift to Plaintiff the existence
of a triable issue of material fact, Plaintiff has met her burden.  “Liability under
Government Code section 835 for maintaining public property in a dangerous condition
depends, however, upon the existence of some defect in the property itself…”  (Zelig,
th
supra, 27 Cal.4   at 1138 [emphasis in original].)  Here, Plaintiff produced evidence that
prior to her injury the activator switches at the mister/water play area were broken.
The evidence shows that the mister/water play area was designed so that the spray
system was user activated and when a button was pushed it would run for three to four
minutes at a time with the water spaying randomly in 20 to 30 second bursts.  (Wurster
Depo. 19:10-17, 34:6-37:1; Brown Depo. 31:19-23.)  After the 3 to 4 minute period it
would shut off and would not begin until the button was pushed again  (Wurster Depo.
34:6-37:1.)  After the activators broke, a City employee manually set the spray system
so that the misters would turn on automatically and spray continuously for 15 minutes
at a time followed by period of inactivity for 5 minutes.  (Brown Depo. 42:14-22, 48:21-
51:1.)  Mr. Rosales observed the misters continually running from the time he got to
the park until the time he left on the day of the incident.  (Rosales Decl. ¶ 7.)  He also
testified that a cloud of mist obscured his vision while he carried Plaintiff through the
misting area and while he anticipated it would thin out near the edge of the misting
area, the cloud spread to the concrete seat wall and his vision was still obscured when
he reached the wall.  (Id. ¶¶ 10-12.)  He was unable to see the wall as a result, tripped
over it and fell.  (Id. ¶ 12.)  The cloud of mist created by the manner in which the
misters were operating at the time relates to the condition of the property itself despite
the fact that Mr. Rosales may have testified that there were no protrusions, etc. on the
ground.  Thus, City’s motion premised on the argument that Plaintiff cannot show a
defect in the physical condition of the property because Ignacio testified that he did not
see any protrusions, etc. is denied. The City also argues that Plaintiff cannot prove that the mister/water play area was a
dangerous condition because the spraying of water and the concrete seat walls were
open and obvious conditions that did not present a substantial risk of injury.  On this
argument, the Court agrees.  The purpose of Government Code § 835 is “to impose
liability only when there is a substantial danger which is not apparent to those using
the property in a reasonably foreseeable manner with due care.”  (Fredette v. City of
Long Beach (1986) 187 Cal.App.3d 122, 131.)  As the Court already stated above,
while it is true that the existence of a dangerous condition is ordinarily one of fact, the
issue may be resolved as a matter of law if reasonable minds can come to only one
th
conclusion.  (Zelig v. County of Los Angeles (2002) 27 Cal.4   1112, 1133.)  The Court
may properly resolve such issue on a motion for summary judgment.  (Sambrano v.
th
City of San Diego (2001) 94 Cal.App.4   225.)  This is such a situation.  The Court finds
that under the facts, reasonable minds can come to only one conclusion, that is, that
the mister/water play area was not a dangerous condition.   Indeed, the evidence is
essentially undisputed that Mr. Rosales saw the cloud of mist in the play area and
knew he was going to get wet before walking into the play area.  (Rosales Depo. 43:16
-44:1, 63:20-22.)  It is as the City points out, a matter of common knowledge that
getting water in one’s eyes may temporarily blur one’s vision.  (City’s RJN.)  Mr.
Rosales got water in his eyes and his vision was impaired.  (Rosales Depo. 62:2-20.)
He then continued walking despite his blurred vision and walked into the concrete seat
wall and fell.  (Id. 59:11-17.)  He even testified that his vision was obscured by water to
the point he could “barely see” and nevertheless continued walking.  (Rosales Depo
59:11-17, 60:20-23.)

To the extent the condition of the mister/water area is contended to be dangerous, it
only became dangerous when Mr. Rosales chose to continue walking after he got
water in his eyes and was unable to clearly see. The mister was doing what misters
do: creating mist.  Nothing the City did or failed to do caused the injury.  This is similar
to the situation in Sambrano cited in the moving papers in which a public entity’s
motion for summary judgment was granted on a plaintiff’s dangerous condition of
public property claim where the plaintiff sustained injuries after climbing into a fire ring
on a public beach and did not see sand-covered hot coals.  “It is not proper to reason
backwards to say that since [the plaintiff] was seriously injured, there was a substantial
risk of such injury attributable to the condition of the public property.”  (Sambrano,
th
supra, 94 Cal.App.4   at 240.)  In addition, an appellate court upheld a jury verdict
finding no dangerous condition where a plaintiff was injured when he dove head first
off a pier into a lagoon.  (Fredette, supra, 187 Cal.App.3d 122.)  The plaintiff argued
that he “would not have made the dive had the pier been barricaded or had there been
signs warning against the use of the structure as a diving platform.”  (Id. at 129.)  In
upholding the verdict, the appellate court stated that the evidence showed that the
public entity “neither caused the accident nor did it fail to warn the plaintiff of some
unapparent or inherently unsafe condition.”  (Id. at 133.)

While Plaintiff is correct that Fredette involved a jury trial and the issue of whether the
condition was dangerous was submitted to the jury, that does not mean as Plaintiff
argues, that the question of whether the instant condition was dangerous must always
go to the jury.  Indeed, as set forth above, the issue may be resolved as a matter of
law when reasonable minds can come to one conclusion.  Further, Plaintiff’s evidence
discussed above that the mister/water play area was not operating as designed
because of the broken activator switches and the fact that the City employee manually
set the system so that it would spray continuously for 15 minutes at a time followed by
period of inactivity for 5 minutes does not change the result.  (Brown Depo. 42:14-22,
48:21-51:1.)  Indeed, the undisputed evidence still shows that Mr. Rosales saw the
cloud of mist in the middle of the play area, knew he was going to get wet, and
continued walking through the area and into the concrete seat wall even after he got
water in his eyes which had blurred his vision.  The fact that Mr. Rosales declares that
the mist cloud was “thick” and spread from the misting area to the seating wall does
not change the result.  (Rosales Decl. ¶¶ 8-12.)  Plaintiff presents no evidence to
suggest that there was anything about the mister/water play area that created a
substantial risk of injury, for example, that the concrete seat wall was somehow too
close to the mist/water play area in light of the fact that people using the area might get
water in their eyes.  Rather the sum total of the evidence is that Mr. Rosales knew he
would get wet when he entered the play area, got water in his eyes when he entered
the misting area and continued to walk through the play area despite the fact that his
vision was obscured by the water in his eyes.

Under these circumstances, the Court concludes that the City is entitled to summary
judgment on Plaintiff’s complaint because reasonable minds can only come to one
conclusion on the issue of whether the mister/water play area constituted a dangerous
condition, and that is it did not.  The only reasonable conclusion from the evidence
presented by City and Plaintiff is that when used with due care by members of the
public, the mister/water play area did not present a significant risk of injury.

In addition, the City is also entitled to summary judgment on the alternate basis that
Plaintiff failed to raise a triable issue of material fact as to whether City had actual or
constructive notice of any dangerous condition.  To prove actual notice of a dangerous
condition, Plaintiff must show (1) that City had actual knowledge of the existence of the
condition; and (2) that City knew or should have known of its dangerous character.
(Gov’t Code § 835.2(a).)  To show constructive notice, Plaintiff was required to show
that the alleged dangerous condition existed for such a time and was of such an
obvious nature that City in the exercise of due care, should have discovered the
condition and its dangerous character.  (Id. § 835.2(b).)  Here City’s evidence shows
that the first complaint it received with respect to the mister/water play area was in
connection with Plaintiff’s Tort Claim.  While Plaintiff’s opposition points to evidence
that the activator switches at the Park were broken, Plaintiff offers no evidence that
City was or should have been aware of any dangerous condition created by such fact,
specifically, a condition that created a substantial risk of injury when the property at
issue was used with due care.  Thus, having failed to establish a triable issue of
material fact, City is also entitled to summary judgment on the basis that Plaintiff
cannot establish City had actual or constructive notice of the alleged dangerous
condition.

As a result, City is entitled to summary judgment on Plaintiff’s Complaint.

The Court need not reach City’s additional arguments, specifically, that it is entitled to
judgment on the basis of its design immunity affirmative defense.

City’s evidentiary objections are ruled upon as follows:  The objection to Plaintiff’s
request for judicial notice and the objection to Plaintiff’s Exhibit 5, an unauthenticated
email between City employees are sustained.  The remainder are overruled.  City’s
counsel shall present an order on the objections pursuant to CRC, Rule 3.1354.

The Court notes that Plaintiff referred to evidentiary objections in the conclusion
section of her opposition, but no evidentiary objections were filed.

City’s counsel shall prepare for this Court’s signature and a judgment of dismissal
pursuant to CCP § 437c(g) and CRC Rule 3.1312.