Filed 3/3/20 Lee v. City and County of San Francisco CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

GEEN PHONE LEE et al.,

Plaintiffs and Appellants,

v.

CITY AND COUNTY OF SAN FRANCISCO,

Defendant and Respondent.

A155072

(San Francisco County Super. Ct.

No. CGC-16-551194)

Geen Phone Lee, Geen Quon Lee, Johny Lee, Calvin Lee, and Geen Ning Lee (collectively, appellants) appeal after the trial court granted the motion for summary judgment filed by the City and County of San Francisco (respondent) in this action arising from the death of appellants’ mother, Pui Fong Yim Lee (Lee), who died after she was struck by a vehicle while crossing the street at the intersection of Sacramento and Stockton Streets in San Francisco. On appeal, appellants contend the court erred when it granted respondent’s summary judgment motion because there are triable issues of material fact regarding whether the subject intersection constituted a dangerous condition of public property and whether respondent’s design and operation of the intersection was a proximate cause of Lee’s death. Appellants also contend respondent failed to satisfy its burden to show it had either signal/sign immunity or design immunity. We shall affirm the judgment.

PROCEDURAL BACKGROUND

On March 29, 2016, appellants filed a complaint against respondent, San Francisco Municipal Transportation Agency, and the San Francisco Department of Public Works consisting of a single cause of action for premises liability, alleging a dangerous condition of public property.

On July 20, 2016, respondent filed a cross-complaint against Calixto Supsupin Dilinila—the driver of the vehicle that hit Lee—asserting a cause of action for equitable contribution and indemnification and a cause of action for declaratory relief.

On November 22, 2016, Dilinila filed an application for good faith settlement determination based on a settlement he had reached with appellants. On January 3, 2017, the court granted the settlement application and dismissed respondent’s cross-complaint with prejudice.

On August 25, 2017, respondent filed a motion for summary judgment.

The hearing on the summary judgment motion was held on November 14, 2017, and the court took the motion under submission. On February 20, 2018, the court issued its order granting summary judgment.

Judgment on the summary judgment order was entered on April 10, 2018, and notice of entry of judgment was filed on April 23.

On May 8, 2018, appellants filed a notice of intention to move for new trial.

On June 21, 2018, following a hearing on the motion for new trial, the court issued an order denying the motion.

On June 27, 2018, the court entered an amended judgment.

On June 28, 2018, appellants filed a notice of appeal.

FACTUAL BACKGROUND

The undisputed evidence in the record includes the following. On the morning of September 20, 2014, Lee was a pedestrian at the intersection of Sacramento and Stockton Streets in the Chinatown district of San Francisco (the subject intersection), which is a traditional “four-legged” intersection. All traffic lights were operating correctly on that date. Lee initially walked southbound across Sacramento and then waited on the sidewalk at the southeast corner before beginning to walk westbound in the crosswalk across Stockton, once the pedestrian signal displayed a white walking figure. Meanwhile, Dilinila, who had been driving westbound on Sacramento in a 2007 Toyota FJ Cruiser, stopped at the red light at the intersection of Sacramento and Stockton as Lee crossed Sacramento. Sacramento is a one-lane, one-way street in the westbound direction. During certain times, on-street parking is prohibited on both the north and south sides of Sacramento to provide an additional traffic lane and a transit only lane. Those prohibitions were not in effect at the time of the accident. Stockton is a three-lane, two-way street running north and south, with an additional left turn only lane at the intersection with Sacramento, in the northbound direction.

After the light turned green, Dilinila began to make a left turn onto Stockton Street, hitting Lee as she was walking westbound in the crosswalk just before the middle of the intersection. Lee died of her injuries. The collision occurred around 9:48 a.m., about four seconds after the light turned green and the pedestrian walk signal turned white. Dilinila had seen Lee crossing Sacramento, but did not see her subsequently standing on the corner while he waited for the green light and never saw her in the crosswalk before he struck her with his vehicle. Dilinila believed the pillar to the left of the front windshield on his car could have blocked his view of Lee. He subsequently pleaded no contest to misdemeanor manslaughter.

Parts of the incident were captured on video by a taxicab (the Yellow Cab video) stopped directly behind Dilinila on Sacramento, as well as by two Muni buses in the vicinity. Still photos from the Yellow Cab video show Dilinila’s vehicle stopped at the light as Lee crosses Sacramento in front of Dilinila’s stopped vehicle. Lee is then visible standing on the southeast corner of Sacramento and Stockton. After the traffic light turns green and displays the pedestrian walk sign, Lee is visible in the crosswalk beginning to walk across Stockton Street. Dilinila’s vehicle is then seen turning left and Lee is shown lying on the ground near the middle of the intersection.

At the location on Sacramento where Dilinila’s vehicle was stopped while waiting for the light to turn green, the upward grade is approximately six to nine degrees. The traffic signals at the subject intersection included synchronous green lights and pedestrian walk signals i.e., the green light and walk signal started at the same time. The design of the intersection was reviewed and approved by San Francisco traffic engineers in documents known as “striping plans” in 1972 and 1989. The plans were updated and approved by a traffic engineer in June 2014, a few months before the present accident, to reflect existing conditions. Traffic engineers with the San Francisco Municipal Transportation Agency have discretionary authority to approve striping plans and roadway designs.

Traffic signal hardware and infrastructure at the subject intersection were upgraded in June 2002, including installation of new pedestrian signals. That same month, respondent implemented “pedestrian scrambles” at four intersections along Stockton, just north of the intersection, at Clay Street, Washington Street, Jackson Street, and Pacific Avenue. Those four intersections were chosen for pedestrian scrambles based on high pedestrian traffic volumes at their locations. The subject intersection was excluded from the project based on lower pedestrian traffic volumes and input from the community.

On June 30, 2003, CHS Consulting Group prepared a report entitled “Stockton Street Enhancement Project” for respondent’s Department of Parking and Traffic and the Chinatown Community Development Center. CHS found, based on data from 1997 to 2001, that the subject intersection had the lowest pedestrian volumes of the area intersections, but had the second highest accident level—five—involving pedestrians hit by vehicles turning left from Sacramento onto Stockton. One of the various alternatives set forth in the report that would make changes at area intersections was installation of a scramble signal at the subject intersection. The report described the benefits of such a change as “[i]mprov[ing] pedestrian safety by eliminating conflicts between pedestrians and turning vehicles,” and the impacts as “[i]ncreas[ing] signal delay for MUNI buses and vehicles on both Stockton and Sacramento Streets. The report also noted that “[a]lternative signal designs may be able to reduce conflicts between vehicles and pedestrians without significantly impacting MUNI and traffic operations. Further analysis of these options would be required.” Finally, the report stated that there was no accident data yet available for the period after implementation of scramble signals at other intersections along Stockton Street.

In October 2010, the Chinatown Community Development Center prepared a report entitled “San Francisco Chinatown Pedestrian Safety Needs Assessment,” in which it set forth collision data showing, inter alia, that between 1999 and 2009, the subject intersection had a high number of vehicle-pedestrian collisions relative to the volume of pedestrians crossing the street at the intersection. The report described the pedestrian volume at the intersection as “medium.” Among proposed improvements for that intersection was a pedestrian scramble.

On January 18, 2011, respondent created a traffic study log in response to the requests of the Chinatown Community Development Center to review the safety record of various Chinatown intersections, including the subject intersection. After completing a traffic study, engineers for respondent reviewed the collision history at the intersection and directed that the signal timing be revised to increase duration of the “Flashing Red Hand” and the “All Red.” That change was completed on July 21, 2011. The traffic study also “reconsidered a pedestrian scramble at the subject intersection, but ultimately determined that ‘recent collision data show that pedestrian collisions on Stockton Street have not gone down since the installation of the pedestrian scrambles.” In October 2013, signal timing was again evaluated by city engineers and adjusted to a slower walking speed for pedestrians in the intersection.

In the years before the present accident, there were a number of collisions at the subject intersection involving left turning drivers and pedestrians, under various circumstances. Other evidence regarding accidents at the intersection came from two men with long term businesses located at or near the intersection. In the 24 years his business had been located on the corner of Stockton and Sacramento, Raymond Hong had observed at least four to seven collisions before the present one, including three to four pedestrian fatalities, all of which involved vehicles turning left from Sacramento onto Stockton. Hong had complained to police in the area about the dangerousness of the intersection on at least five occasions. Since 1989, Edward Siu, who owned a business near the intersection, had personally observed an average of two to three vehicle-pedestrian collisions per year, half of which involved vehicles on Sacramento turning left onto Stockton while a pedestrian walked in the south crosswalk. Approximately one of these accidents per year was actually reported to police. Siu had complained to the police at least twice before the present accident about the dangerousness of the intersection and the need to install a pedestrian scramble and/or warning signs.

In October 2014, following the accident in the present case, as well as another accident involving a left turning vehicle and a pedestrian that occurred at the same intersection two days later, city engineers changed the signal timing at the intersection, with the walk indicator programmed to start four seconds before the start of the westbound green light for Sacramento Street traffic (head start signaling). On January 20, 2015, a full pedestrian scramble was implemented at the subject intersection. Other changes included installation of high visibility crosswalks, larger signals, a longer yellow light, and a new sign warning westbound left-turning drivers on Sacramento to yield to pedestrians in the crosswalk.

DISCUSSION

Appellants contend the court erred when it granted respondent’s motion for summary judgment because there are triable issues of material fact regarding whether the subject intersection was a dangerous condition and whether respondent’s design and operation of the intersection was a proximate cause of Lee’s death, and respondent failed to satisfy its burden to show it had either signal/sign immunity or design immunity.

I. Summary Judgment Rules and Standard of Review

A motion for summary judgment “shall be granted if 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.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has the initial burden of showing either that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) If that initial burden is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Ibid; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–853 (Aguilar).) “ ‘The plaintiff . . . may not rely upon the mere allegations or denials’ of his ‘pleadings to show that a triable issue of material fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ ([Code Civ. Proc., §] 437c, subd. ([p])(2).)” (Aguilar, at p. 849.)

“ ‘ “[W]e take the facts from the record that was before the trial court when it ruled on that motion,” ’ and ‘ “ ‘ “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.” ’ ” ’ [Citations.] In addition, we ‘ “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ [Citations.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)

II. Triable Issues of Material Fact Regarding Dangerous Condition

Appellants first contend the trial court erred in granting summary judgment because there are triable issues of material fact regarding whether the subject intersection constituted a dangerous condition of public property.

A. Applicable Legal Principles

Government Code section 835 “ ‘is the principal provision addressing the circumstances under which the government may be held liable for maintaining a dangerous condition of public property.’ [Citation.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131 (Zelig).) Under that statute, “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835.)

A “dangerous condition” is defined 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 reasonably foreseeable that it will be used.” (§ 830, subd. (a).) A condition is not a dangerous one, however, “if the trial 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.” (§ 830.2.)

A dangerous condition thus “exists when public property ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endangers users.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347–1348 (Cerna), quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148–149.)

“A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff’s injury is a third party’s negligent or illegal act (like [Dilinila’s] negligent driving) if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. [Citation.] But it is insufficient to show only harmful third party conduct, like the conduct of a motorist. . . . There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.]” (Cerna, supra, 161 Cal.App.4th at p. 1348; accord, Zelig, supra, 27 Cal.4th at p. 1135; see also Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 760 [“The status of a condition as ‘dangerous’ for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care”].)

“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. [Citation.]” (Zelig, supra, 27 Cal.4th at p. 1133.)

B. Trial Court Background

In support of appellants’ opposition to the motion for summary judgment, one of appellants’ experts, Civil and Transportation Engineer Dale R. Dunlap, opined that a combination of factors made the intersection a dangerous condition. These included the following: Sacramento is a one-way street, vehicles can turn left from Sacramento onto Stockton from the lane adjacent to the curb, the gradient of Sacramento restricts visibility of the south crosswalk for drivers on Sacramento, street furniture and other visual clutter restrict visibility of pedestrians on the curb, and the failure to install a pedestrian scramble phase at the subject intersection while installing a scramble at other similar Stockton intersections created a trap for pedestrians.

Appellants’ other expert, Accident Reconstruction and Biomechanics Consultant Rajeev Kelkar, also opined that several features of the intersection contributed to the accident. These included the upward grade, turning from a one-way street, and synchronous green light and pedestrian walk signals. According to Kelkar, these factors combined to make the intersection a dangerous condition because they caused Lee to be obscured by Dilinila’s vehicle’s “blind spot associated with the driver-side A-pillar and driver-side rear-view mirror.”

In its order granting respondent’s motion for summary judgment, the trial court found that respondent had satisfied its burden of showing that the subject intersection was not in a dangerous condition at the time of the collision; that appellants had not presented admissible evidence creating a triable issue of material fact that the intersection was in a dangerous condition at the time of the collision; and that, therefore, as a matter of law, the intersection was not in a dangerous condition at the time of the collision.

The court summarized and rejected appellants’ “core argument [that] the 6 to 9% uphill grade on west-facing Sacramento Street leading to the intersection combined with the facts that a left turn from west-facing Sacramento Street into south-facing Stockton Street (the turn taken by Dilinila when he struck Lee) can be made from the left or southernmost lane of Sacramento Street immediately adjacent to the southern crossing of the intersection and the synchronous signaling of the traffic lights facing the left-turn driver and the southern crossing pedestrian rendered the intersection a dangerous condition due to the blind spots from the front left A-pillar and driver’s side side/rear view mirror of the vehicle driven by Dilinila. This argument—which if accepted would require all intersections, if not all public roadways, to be designed to avoid or at least mitigate the effect of vehicle caused blind spots (as distinct from structure or terrain caused blind spots)—lacks both legal and factual support.” The court further stated that, “absent consideration of the blind spots” from Dilinila’s vehicle, appellants “do not identify anything defective or dangerous about the grade leading to the intersection on west-facing Sacramento Street, the left-hand turning lane on west-facing Sacramento Street or the timing of the traffic lights at the intersection, whether considered singly or collectively. In fact, those features are extremely common throughout San Francisco and outside San Francisco as well.”

As to whether the characteristics of the intersection were somehow a deceptive condition or trap for those who exercise due care, the court noted that the Yellow Cab video showed “beyond doubt that there is nothing deceptive about the uphill grade leading to the intersection from west-facing Sacramento Street and neither the grade itself nor any other physical feature impeded” Dilinila’s view of Lee.

In its order denying appellants’ motion for a new trial, the court rejected appellants’ primary argument that “the absence of a scramble or ‘head start’ signaling for pedestrians at the Sacramento/Stockton intersection on the day of the tragic collision, was a dangerous condition of public property” under sections 830 and 835. The court explained that, even assuming appellants had submitted sufficient evidence of prior similar accidents to create a triable issue as to a theory of dangerous condition of property based on “the failure to take a known corrective measure to safeguard against the recurrence of prior accidents at or near the property[,] the application of that theory fails in this case due to the signaling immunity in [section] 830.4.”

C. Analysis

The initial—and potentially determinative—element at issue regarding respondent’s liability for a dangerous condition of public property is whether appellants can establish that the subject intersection was in a dangerous condition at the time of the collision. (See § 835.) Appellants argue that triable issues of material fact exist as to this question, not simply because of vehicle blind spots—their primary argument in the trial court, on which the trial court focused—but also because of a combination of other factors: “(1) the conflict between vehicles turning left from Sacramento onto Stockton and pedestrians in the south crosswalk, (2) the accident history, (3) the unexpected lane configuration, (4) the gradient on Sacramento, (5) the trap created because four adjacent intersections along Stockton had pedestrian scrambles while the subject intersection did not, (6) visual clutter, and (7) subsequent remedial measures impeaching [respondent’s] claim that the intersection was not a dangerous condition.”

1. Physical Characteristics of the Subject Intersection

First, we agree with the trial court that the grade described by appellants, which is extremely common in a hilly city like San Francisco, is not in itself a dangerous condition. (See Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7 [“An ordinary, natural topographical condition is not a dangerous condition of property” unless “it constitutes a deceptive condition or trap for even those who use the property with due care”]; compare Bunker v. City of Glendale (1980) 111 Cal.App.3d 325, 327–329 [a steep hill that obstructs visibility may be a dangerous condition].) Likewise, the lane configuration, with drivers turning left from a one way street in close proximity to the crosswalk, is, as the trial court stated, “commonplace and not inherently dangerous.” (See Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1190 (Sun) [plaintiffs did not produce any specific facts showing unusual physical characteristics of crosswalk where pedestrian was killed, such as visual obstructions like foliage, “shadows, or insufficient lighting,” which would establish a dangerous condition].)

As to Dilinila’s vehicle “caused blind spot,” appellants argue that the physical features of the subject intersection in combination with the blind spot caused by the configuration of Dilinila’s vehicle created a dangerous condition. The trial court properly rejected this argument based on the fact that the blind spot of a particular vehicle plainly is not a characteristic of public property that can support a finding of a dangerous condition absent some dangerous physical characteristic of the intersection itself, which did not exist in this case. As the court explained: “Given that blind spots from a vehicle are so varied and broad, it is unreasonable to impose liability on an owner or designer of a roadway or traffic signaling for failing to take into account the blind spots from a vehicle. [¶] . . . . [Appellants] provide zero evidence that the Sacramento/Stockton intersection presents a substantial risk if a driver’s otherwise unobstructed view of a pedestrian in the intersection (as shown by the Yellow Cab video) is impaired by his vehicle’s blind spots when the driver acted with due care to compensate for those blind spots.” (Compare Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1454, 1460 [reversing grant of summary judgment after finding that plaintiffs’ theory that installation of a misleading warning beacon, “even though intended to make the crosswalk safer, did the opposite and lulled pedestrians to think it was safe to cross” at an intersection with reportedly “ ‘unusual conditions’ ” was a jury question].)

Appellants claim that the trial court was mistaken when it stated that no case has suggested that a portion of a roadway was dangerous because its attributes failed to eliminate or reduce the negative effects of a feature of a vehicle, such as blind spots. Appellants cite Lockett v. State Department of Transportation and Development (La. 2004) 869 So.2d 87, 90, 96, in which the Louisiana Supreme Court affirmed a jury verdict against the state based on an accident that occurred when a vehicle executed a left turn at a highway intersection, where an opposing vehicle was stopped while waiting to also make a left turn and a vehicle proceeding straight from the opposite direction in the outside lane of traffic collided with the left turning vehicle. The court noted that it was “not disputed that a blind spot was created at the intersection in the outside lanes when, as in this instance, two opposing vehicles were each stopped at the intersection and waiting to make left turns . . . . [Citation.] This ‘cone of obscurement’ coupled with the permissive green globe lulled the left-turning driver into a false sense of being able to safely negotiate the left turn when in fact it is a perilous maneuver.” (Id. at p. 96.) In Lockett, the blind spot to cars proceeding straight on the highway was caused by the roadway design, i.e., by vehicles in the inner lanes waiting to turn left at the intersection, not by a blind spot resulting from the design of a particular vehicle. (See ibid.; see also Hollingsworth v. City of Rainbow City (Ala. 2001) 826 So.2d 787, 789–790 [evidence showed “that there was a dangerous condition at the intersection that was the site of the accident, i.e., a ‘blind spot’ occasioned by the contour of a hill leading to the intersection”].)

In addition, the still photos in the record, which are taken from the Yellow Cab video, make abundantly clear that neither the grade, the lane configuration, nor any other physical characteristic of the intersection caused a blind spot or otherwise amounted to a dangerous condition of public property. Rather, this evidence demonstrates that Lee was perfectly visible while Dilinila was stopped at the red light, both as she stood on the corner and as she began to cross the street after the light turned green and the pedestrian walk signal displayed a white walking figure. Despite this fact, whether due to the failure to look beyond a blind spot caused by his vehicle or inattention, Dilinila proceeded to execute a left turn and hit Lee in the crosswalk. (See Sun, supra, 166 Cal.App.4th at p. 1189.)

In Sun, after the city of Oakland had removed a painted crosswalk and installed bulb-out sidewalk extensions at a pedestrian crossing, a driver changed lanes to pass a stopped vehicle and struck and killed a pedestrian. (Sun, supra, 166 Cal.App.4th at p. 1181.) Division One of this District affirmed the trial court’s grant of summary judgment in favor of the city, rejecting as a matter of law the plaintiffs’ claim that the bulb-outs and absence of painted markings created a dangerous condition. (Id. at pp. 1189–1190.) The court explained that “the only risk of harm was from a motorist who failed to exercise due care by not obeying the Vehicle Code provisions requiring him both to yield to a pedestrian and to refrain from passing around a vehicle that had stopped for a pedestrian.” (Id. at p. 1190; see also Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 (Chowdhury) [“ ‘If [ ] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not “dangerous” within the meaning of section 830, subdivision (a)’ ” ].)

In the present case too, there was no defect in the physical condition of the intersection that had “some causal relationship to [Dilinila’s] conduct that injure[d] Lee.” (Cerna, supra, 161 Cal.App.4th at p. 1348.) As in Sun, the risk of harm at the subject intersection was from a driver failing to exercise due care, not from a dangerous condition. (Sun, supra, 166 Cal.App.4th at pp. 1189–1190.)

2. Failure to Install a Pedestrian Scramble

Appellants also argue that there is a triable issue of material fact regarding whether respondent’s failure to install head start or pedestrian scramble signaling at the subject intersection amounted to a dangerous condition. However, having already found that there are no triable issues regarding whether any physical characteristics caused the intersection to be in a dangerous condition, we further find that respondent is immune from liability under section 830.4 for its failure solely to provide different signal timing.

Section 830.4 provides that a condition of public property is not a dangerous condition “merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs . . . or distinctive roadway markings . . . .” (§ 830.4; see Veh. Code, § 21450 [official traffic control signals, whether shown “successively, one at a time, or in combination,” shall include only colors green, yellow, and red, except for pedestrian control signals]; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 442 [city’s failure to install traffic regulation or safety devices to reduce dangers to pedestrians posed by crossing a street could not be a ground for liability where such devices had been “legislatively excluded as a basis for finding a dangerous condition”]; cf. City of South Lake Tahoe, supra, 62 Cal.App.4th at p. 976 [observing that section 830.4 “extends immunity only for the ‘mere’ failure to provide a stop sign, i.e., where that is the only basis for fixing liability, and . . . where there are additional factors giving rise to a dangerous condition, absence of a stop sign or signal may be considered”], italics added; Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1538–1539 (Washington) [section 830.4 is not a bar to liability only “[i]f an intersection is dangerous because of the failure to provide warning or regulatory signs and also because of the ‘conjunction of other factors’ ”].)

Here, as we have explained, because there was no other factor at the intersection that could give rise to a finding of dangerous condition, respondent’s failure to install head start signaling or a pedestrian scramble at the subject intersection, even assuming it would have made the intersection safer, is excluded under section 830.4 as a basis for finding that the intersection constituted a dangerous condition. (Compare Washington, supra, 219 Cal.App.3d at p. 1538 [dangerous condition resulted not “ ‘merely’ ” from city’s “failure to install regulatory signals or markings at its intersection, but from other factors beyond that failure which obstructed the vision of motorists using it, i.e., the pillars in the middle of 13th Street and the shadow of the overhead freeway”].)

3. Deceptive Condition or Trap

Appellants nevertheless argue that the absence of a pedestrian scramble, head start signaling, or a sign warning left turning drivers to yield to pedestrians at the subject intersection created a deceptive condition or trap, which in itself constituted a dangerous condition of public property pursuant to section 830.8, and therefore rendered section 830.4’s signal immunity inapplicable.

Section 830.8 provides in relevant part that although a public entity is not liable “for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices,” “[n]othing in this section exonerates a public entity . . . from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” (§ 830.8.)

“Section 830.8 was intended to prevent ‘the imposition of [public entity] liability based on the failure to provide traffic regulatory or warning signals or devices [other than as described] in Section 830.4, but liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care.’ ” (Washington, supra, 219 Cal.App.3d at p. 1536, quoting Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1980 ed.) § 830.8, p. 289.) “A public entity, thus, loses its limited immunity under section 830.8 and is liable for injury where its failure to provide traffic regulatory or warning signals, of a type other than those described in section 830.4, constitutes a concealed trap for those exercising due care, assuming the conditions of its liability under section 835 are otherwise met. [Citation.]” (Washington, at pp. 1536–1537; accord, City of South Lake Tahoe, supra, 62 Cal.App.4th at p. 976 [“the parenthetical clause in section 830.8 makes it clear that its provisions come into play only when it is alleged that some type of sign, device or marking other than those listed in section 830.4 should have been provided”].)

In the present case, appellants rely on the declaration of their expert Dunlap, who opined that the fact that four similar intersections along Stockton had pedestrian scramble signaling, while the subject intersection did not, “created a trap for pedestrians, who might not realize that this intersection is controlled differently than the other Chinatown intersections along Stockton Street.” They also rely on the declaration of their other expert, Kelkar, who opined that the upward grade of Sacramento, turning from a one-way street, combined with Dilinila’s vehicle caused blind spot, created a dangerous condition requiring a pedestrian scramble. As we shall discuss, neither expert’s opinion creates a triable issue of material fact as to whether the intersection constituted a concealed trap under section 830.8.

First, lack of a scramble signal and a warning sign to yield the right of way are described by section 830.4, and therefore cannot be a basis for liability under section 830.8. (See § 830.4 [providing immunity for provision of, inter alia, “regulatory traffic control signals” and “yield right-of-way signs”]; Veh. Code, §§ 21450 [official traffic control signals, whether shown, “successively, one at a time, or in combination” shall include only colors green, yellow, and red, except for pedestrian control signals] & 21356 [authorities “may erect yield right-of way signs at the entrances to intersections or highways”]; see also City of South Lake Tahoe, supra, 62 Cal.App.4th at p. 976 [provisions of section 830.8 “come into play only when it is alleged that some type of sign, device or marking other than those listed in section 830.4 should have been provided”]; Washington, supra, 219 Cal.App.3d at p. 1537 [same].)

Second, even were we to entertain the dubious assumption that a pedestrian scramble and the yield right-of-way sign described by appellants are different types of signs or devices from those protected under section 830.4, we would still find unconvincing appellants’ concealed trap argument, which is based on the speculation of Dunlap that Lee was confused by the lack of a scramble signal at the subject intersection. Appellants have submitted no evidence suggesting that Lee was—or any other pedestrian would be—misled by other nearby intersections having pedestrian scramble signaling or that either a pedestrian or driver would be deceived by the simultaneous green light and walk sign, an extremely common feature of intersections in San Francisco, which was visible to both drivers and pedestrians. (See Sun, supra, 166 Cal.App.4th at pp. 1192–1193; Chowdhury, supra, 38 Cal.App.4th at p. 1197.) In addition, since appellants cannot show that lack of a pedestrian scramble at the subject intersection was a concealed trap amounting to a dangerous condition, lack of a yield right-of-way sign also could not have constituted a dangerous condition. (See Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 136 [dangerous condition “may require the posting of a warning sign but the absence of a warning sign itself is not a dangerous condition”].) Nor, as previously discussed, does the possibility that Dilinila’s view was obstructed by a vehicle-caused blind spot, on which appellants’ other expert, Kelkar, focused, create a triable issue of fact regarding dangerousness based on a concealed trap caused by the road grade at the intersection and the left turn from a one-way street, which would require a pedestrian scramble or yield right-of-way sign. (See Brenner v. City of El Cajon, supra, 113 Cal.App.4th at p. 440; see also Mixon v. Pacific Gas & Electric Co., supra, 207 Cal.App.4th at p. 136.) Therefore, because there was no concealed trap resulting from (1) pedestrian scrambles at other nearby intersections, but not at the subject intersection, or (2) the lack of a pedestrian scramble or a yield right-of-way sign, respondent is immune from liability under section 830.8, even if it might otherwise apply. (See Sun, at pp. 1192–1193; Chowdhury, at p. 1197.)

4. Accident History

Appellants further argue that evidence regarding the accident history at the subject intersection creates a triable issue of fact regarding the intersection’s dangerousness.

“It is well-settled that before evidence of previous accidents may be admitted to prove the existence of a dangerous condition, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. [Citations.] The question of admissibility of other accidents is primarily one for the trial court and is confined to its sound discretion. [Citation.] [¶] While there must be substantial similarity to offer other accident evidence for any purpose, a stricter degree of substantial similarity is required when other accident evidence is offered to show a dangerous condition . . . .” (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1072 (Salas).)

In Sun, the appellate court found that the plaintiffs had failed to raise a triable issue of material fact regarding whether an unmarked crosswalk was in a dangerous condition, despite submitting letters from members of the community expressing concern about pedestrian safety at the intersection and a pedestrian accident safety study showing that between 1998 and 2003, the intersection where the pedestrian was struck by a car and killed in 2004 “was tied for third among all intersections in Oakland in the number of pedestrian-involved accidents. A total of seven accidents had occurred during that time.” (Sun, supra, 166 Cal.App.4th at p. 1187.) However, because “[n]o information [was] provided as to the factual circumstances surrounding these accidents,” this other accident evidence did not possess the required degree of similarity to support a finding of dangerous condition. (Id. at pp. 1187–1188; see also Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 230–231, 238 [appellate court affirmed grant of summary judgment in an action involving a young child at a park who walked into a fire ring containing hot coals where evidence of a prior accident at same park in which a child dragging a boogie board tripped and fell into a smaller fire ring was not substantially similar].) The Sun court further found that, while the citizens’ letters expressing safety concerns would be relevant to the question of whether the city had notice of a potentially dangerous intersection, they were not competent evidence that the intersection was in a dangerous condition. (Sun, at p. 1188.)

In the present case, in finding that the other accidents at the intersection were not substantially similar to the present one, the trial court noted that appellants had “emphasize[d] that the various studies showed that there had been a high incidence of prior pedestrian-vehicle collisions at the intersection, requests had been made to provide for a scramble traffic signaling system to reduce such collisions, and people who worked in the vicinity believed and had complained that the intersection was dangerous.” The court found that none of this evidence created a triable issue as to whether the intersection was dangerous at the time of the collision in this case because appellants had provided no information about the details of the other collisions at the intersection.

Appellants nonetheless argue on appeal that they did satisfy the standard of substantial similarity by presenting evidence that “between June 15, 2005, and September 23, 2014, there were 7 accidents (1) at the subject intersection (2) where a vehicle collided with a pedestrian (3) in the south crosswalk (4) as the vehicle was making a left turn, and (5) where driver or pedestrian impairment was not a factor.” They point to a table prepared by Dunlap, one of appellants’ experts, summarizing accidents that occurred at the intersection from January 2004 to 2016. Dunlap stated that he did not summarize the accidents that occurred before 2004 because data covering that time period did not include specific information about each collision.

We agree with the trial court that the prior accident evidence to which Dunlap referred shows, in some cases, that the accidents were plainly not substantially similar while, in other cases, there is insufficient information about the nature of the accidents to demonstrate substantial similarity to the circumstances of the present collision. In particular, the information does not provide the “stricter degree of substantial similarity . . . required when other accident evidence is offered to show a dangerous condition[.]” (Salas, supra, 198 Cal.App.4th at p. 1072.)

Specifically, with respect to the seven left-turn accidents cited by appellants that took place between 2005 and September 2014 (which include the collision involving Lee and another collision three days later), there is only one accident that could even arguably be described as substantially similar to the present case: an accident that occurred on October 6, 2008, involving a southbound driver turning left and failing to yield to a pedestrian who was crossing the intersection in the crosswalk in the westbound direction. Even that accident, however, does not include many details regarding various pertinent factors, including, as the trial court observed, “whether the pedestrians or the drivers or both did or did not act with due care, where the pedestrians and drivers were located in the intersection, and whether there were any obstructions present at the time of the collision.” Moreover, the October 2008 collision took place almost six years before the present accident and several years before the 2011 signal timing change that increased the duration of the flashing red hand and the all red signaling and the 2013 signal timing change that allowed for a slower walking speed for pedestrians in the intersection.

In the other five left turn accidents cited by appellants, not including the one involving Lee, one or more of the following differences or missing descriptive information is evident: the pedestrian was either walking eastbound in the crosswalk (the opposite direction from Lee) or the direction was not stated, and/or the primary collision factor was either not stated or described as an improper turn, rather than failure to yield to a pedestrian. Considering all of these differences and the limited information provided, the trial court appropriately found that appellants had not demonstrated the strict degree of similarity required for the other accident evidence to be admissible to show a dangerous condition. (See Salas, supra, 198 Cal.App.4th at p. 1072; Sun, supra, 166 Cal.App.4th at pp. 1187–1188.) In addition, as in Sun, while the evidence of complaints and concerns by citizens and community groups would be relevant to the question of whether the city had notice of a dangerous condition, they did not constitute evidence that the intersection was in fact in a dangerous condition at the time of the collision. (See Sun, at p. 1188.)

We find inapplicable Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 711, relied on by appellants, in which the plaintiffs were injured when a car crossed a freeway median and collided head-on with their vehicle. The plaintiffs argued that the absence of a median barrier rendered the highway a dangerous condition. (Id. at p. 716.) Our Supreme Court upheld a jury verdict against the state of California, explaining that when “the state has actual or constructive notice of a ‘dangerous condition’ on a public highway, the state bears an affirmative obligation to take reasonable steps to protect the public against the danger” (id. at p. 715), where the evidence shows that accidents could occur without the negligence of either driver. (Id. at p. 719; see Zelig, supra, 27 Cal.4th at p. 1139 [Ducey “did not hold that a dangerous condition of property could exist without reference to any physical quality of the property, but only that the state may be required to alter its property to provide a physical barrier against danger presented by third parties”]; see also Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 808 [appellate court reversed sustaining of a demurrer where it could not say as a matter of law that, inter alia, lack of a barrier between a highway and beach “to protect foreseeable users from the foreseeable use of the beach without due care” was not a dangerous condition of property that caused plaintiffs’ injuries].)

In this case, we find that respondent’s failure to provide a pedestrian scramble or head start signaling does not create a triable issue, as the trial court put it, “as to the application of the Ducey/Swaner theory of dangerous condition of property (i.e., a theory not based on any defect in the physical condition of the property but the failure to take a known corrective measure to safeguard against the recurrence of prior accidents near the property).” We base this conclusion both on appellants’ failure to present evidence of substantially similar prior accidents, as just discussed, and section 830.4’s signaling immunity, under which respondent cannot be held liable for the failure to install a pedestrian scramble at the subject intersection. (See pt. II.C.2, ante, at p. 19.)

5. Subsequent Remedial Measures

Appellants further argue that evidence of respondent’s subsequent remedial measures, including an initial change in the timing of the traffic signals at the subject intersection to head start signaling, followed a short time later by a full pedestrian scramble, as well as installation of high visibility crosswalks and a new sign warning westbound left-turning drivers to yield to pedestrians in the crosswalk, create a triable issue of material fact regarding the dangerousness of the intersection, asserting that “if the intersection was not a dangerous condition . . . , the extensive safety improvements would not have been required.”

Section 830.5, subdivision (b), provides: “The fact that action was taken after an injury occurred to protect against a condition of public property is not evidence that the public property was in a dangerous condition at the time of the injury.” (See also Evid. Code, § 1151 [“When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event”].) Here, none of respondent’s subsequent actions to improve the safety of the subject intersection may be used as evidence of a dangerous condition at the time of the collision. (See Gov. Code, § 830.5, subd. (b); Evid. Code, § 1151.)

D. Conclusion

For all of the foregoing reasons, viewing the evidence most favorably to appellants, we conclude as a matter of law that appellants cannot show that the complained of physical characteristics of the intersection, separately or in combination, constituted a dangerous condition. (See Zelig, supra, 27 Cal.4th at p. 1135; §§ 830, subd. (a); 830.2.) As the trial court aptly concluded, “notwithstanding the heroic effort by [appellants’] counsel to create a triable dispute, the Yellow Cab video shows clearly and unmistakably that Dilinila had, or by the exercise of due care would have had, an unobstructed view of Lee, yet he failed to yield to her. That failure—not a dangerous condition of the intersection—is the legal cause of Lee’s untimely death.”

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

 

_________________________

Kline, P.J.

We concur:

_________________________

Richman, J.

_________________________

Miller, J.

Lee et al. v. City and County of San Francisco (A155072)