Case Name: Cecilia Oliver v. California Department of Motor Vehicles
Case No.: 1-13-CV-252378
Demurrer by Defendant State of California to the Second Amended Complaint of Plaintiff Cecilia Oliver
With respect to count one in the second cause of action [premises liability-negligence], Defendant argues that Plaintiff fails to allege sufficient facts to establish that a legal duty was owed to her.
“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) Under general negligence principles, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor’s conduct. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 716.) Whether a given case falls within an exception to this general rule, or whether a duty of care exists in a given circumstance, is a question of law to be determined on a cases-by-case basis. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) “The existence of such a duty is properly challenged by demurrer.” (Hegyes v. Unjian Enters (1991) 234 Cal.App.3d 1103, 1111.)
Furthermore, under the California [Government] Claims Act (Gov. Code § 810 et seq.), a public entity is not liable for injury arising from an act or omission except as provided by statute. (Tom Jones Enterprises, Ltd. v. County of Los Angeles (2013) 212 Cal.App.4th 1283, 1291 [internal quotation marks omitted].) Thus, in California, all government tort liability must be based on statute. (Ibid.) In the absence of a constitutional requirement, public entities may be held liable only if a statute is found declaring them to be liable. (Ibid.) However, a public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable. (Ibid.)
In Plaintiff’s second amended complaint (“SAC”), she has attached an addendum including supporting allegations for her premises liability claim. In her addendum, Plaintiff alleges that Defendant’s employee (Doe 51) failed to warn her about the baby stroller behind her and thereafter exacerbated her injuries by helping her to get up. (See SAC at Plaintiff’s Addendum to Premises Liability Allegations.) However, such allegations are almost identical to Plaintiff’s first cause of action for negligence which is not being challenged on this demurrer. Thus, the court has already determined that such a legal duty exists to support Plaintiff’s negligence claim. Therefore, there would be no harm in dismissing the negligence count in the second cause of action because it will ultimately be determined by the court in the first cause of action. Furthermore, as Defendant points out, such allegations do not appear to pertain to the premises or condition of the land to support a claim for premises liability. (See CACI 1000 [elements for premises liability]; see also Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406 fn. 1 [broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties].)
Accordingly, Defendant’s demurrer to count one for negligence in the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.
With respect to count three in the second cause of action [premises liability-dangerous condition on public property], Defendant argues that Plaintiff fails to allege facts showing a causal connection between a condition of the property and the injury she sustained to state a valid claim.
Government Code section 835 is the principal statutory provision which establishes when a public entity may be liable for maintaining a dangerous condition of public property. A cause of action for dangerous condition of public property must be specifically alleged. (People ex. rel. Dept. of Transportation v Sup. Ct. (1992) 5 Cal. App. 4th 1480, 1486.) To establish a cause of action for dangerous condition of public property, a plaintiff must allege: (1) a dangerous condition of public property; (2) a proximate causal connection between the condition and the injury sustained; (3) a reasonably foreseeable risk that the kind of injury that occurred would result from the dangerous condition; and (4) the entity either created the condition, or had actual notice or constructive notice of its existence, and there was sufficient time before the injury for it to have taken remedial action. (Id. at pp. 1484-1485.)
A “dangerous condition of public property” is defined under Government Code section 830, subdivision (a) as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonable foreseeable that it will be used.” Thus, a plaintiff must allege facts showing a condition of public property “created a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as a concurrent tortfeasor.” (Morris v. State of California (1979) 89 Cal.App.3d 962, 966.) Moreover, “public liability lies under section 835 only when a feature of the public property has ‘increased or intensified’ the danger to users from third party conduct.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 155.) The existence of a dangerous condition is usually a question of fact, but may be resolved as a question of law if reasonable minds can come to but one conclusion. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810 [“Peterson”].)
Here, Plaintiff alleges that the waiting queue at the DMV facility allows or encourages invitees waiting in line to place a trip hazard behind the backs of others. (See SAC at Plaintiff’s Addendum to Premises Liability Allegations.) As the pleading suggests, this would include someone placing a baby stroller behind another person. However, as Defendant points out, Plaintiff fails to allege facts showing that either the waiting queue or the baby stroller were a dangerous condition of the property. Thus, there is no causal connection between a condition of the property and the injury sustained by Plaintiff. (See Hayes v. State (1974) 11 Cal.3d 469, 472 [liability for injury caused by a dangerous condition of property can be imposed when an unreasonable risk of harm is created by a combination of defect in the property and acts of third parties]; see also Clifford v. Regents of Univ. (E.D. 2012) 2012 U.S. Dist. LEXIS 60280 at pp. *27-28 [district court determined that there was no factual allegation showing that university maintained property in dangerous condition which caused injury to plaintiff].)
In opposition, Plaintiff relies in part on Peterson to support the second cause of action. In that case, a female college student sued a community college district for damages resulting from assault on the campus. The plaintiff alleged that the college maintained the property (campus) in such a way as to increase the risk of criminal activity. The plaintiff claimed that the college district was liable under Gov. Code section 835 for maintaining the dangerous condition on the property (thick bushes), which together with the criminal act of a third party caused her injuries. The California Supreme Court held that plaintiff stated a claim under Gov. Code section 835 because defendant’s act of maintaining the dangerous condition, defendant’s knowledge of the condition and its inaction to take protective measures coupled with the special relationship existing between the college and the student, placed upon defendant a duty to warn plaintiff about the known dangers posed by criminals on the campus. (See Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at pp. 812-813.) Unlike Peterson, Plaintiff has not alleged facts demonstrating that Defendant maintained a dangerous condition that it had knowledge of or that it had any special relationship with the Plaintiff. Thus, Peterson is inapposite.
Therefore, Defendant’s demurrer to count three for dangerous condition of public property in the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
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