Filed 9/27/19 Chandler v. State of California CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAN CHANDLER et al.,

Plaintiffs and Respondents,

v.

STATE OF CALIFORNIA,

Defendant and Appellant.

A149508

(San Mateo County

Super. Ct. No. CIV501071)

The State of California (the State) challenges a jury verdict rendered against it in a wrongful death action brought by Jan, Courtney, Brittany, and Tyler Chandler (plaintiffs)—the surviving wife and daughters of Christopher Chandler, who was struck and killed by a car while in a crosswalk. The State contends the trial court erred in: (1) allowing plaintiffs to present evidence of accidents that were not sufficiently similar to the subject accident; (2) declining to instruct the jury with CACI No. 1112 regarding a reasonableness defense and omitting a question related to the defense from the verdict form; (3) declining to instruct the jury with CACI Nos. 1120 and 1121 regarding limited immunities; (4) precluding the State from presenting testimony that it complied with standards set forth in its manual; and (5) failing to recuse a juror who realized during the trial that he knew one of the witnesses. We reject the State’s contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The surviving family members of Christopher Chandler (Chandler) brought a wrongful death action against the State and Matthew Simon (Simon), the driver of the car that struck Chandler. After settling with and dismissing Simon, plaintiffs alleged in their second amended complaint against the State only that the State created and/or maintained a dangerous condition at the intersection at which Chandler was struck and had notice of the condition; the injury was reasonably foreseeable; and the dangerous condition was a substantial factor in causing Chandler’s death. The trial court denied the State’s motion for summary judgment, and the matter proceeded to trial. The first trial resulted in a mistrial, and a second trial took place. The following evidence was presented at the second trial.

On the morning of September 30, 2010, Chandler was standing at the intersection of El Camino Real (El Camino) and Isabella Avenue (Isabella) in Atherton, San Mateo County. It was a clear, dry, and sunny day.

El Camino has three northbound and three southbound lanes and one left turn lane. It has a posted speed limit of 35 miles per hour, although the “critical speed,” which means the speed at which 85 percent of drivers drive, is 40 miles per hour. El Camino is straight and level and “very busy” where it intersects with Isabella; in 2010, the intersection had an average daily traffic of about 30,000 vehicles.

Isabella is an eastbound/westbound street with one lane of traffic in each direction. There is a stop sign on Isabella, which intersects at about a 90-degree angle with southbound El Camino from the west, forming a T-intersection. The intersection is known as an “uncontrolled intersection” because there is no stop sign or stoplight on the main street, El Camino. The crosswalk at the El Camino and Isabella intersection was marked with two white parallel lines.

With his bicycle at his side, Chandler stepped onto the marked crosswalk to walk across El Camino. While he was legally in the crosswalk, he was struck by a car driven by Simon, who was driving southbound on El Camino.

At the time of the accident, Simon was on his way home from a routine dental appointment. He was not in a rush and his sightlines were clear. He went through the intersection without braking because he did not see Chandler at all; it was estimated that his car struck Chandler at 42 miles per hour. Simon pulled over because he heard a “bang” and his windshield “was completely shattered.” He thought a tree branch had fallen on his car but eventually realized what had occurred and became “extremely upset.” Chandler was still breathing when officers arrived but was pronounced dead at the scene.

Plaintiffs presented evidence of various studies that have shown over the years that placing simple crosswalk markings such as two white parallel lines at uncontrolled intersections like the El Camino and Isabella intersection is dangerous for pedestrians. In 1972, the Herms study, which analyzed 400 marked crosswalks and 400 unmarked crosswalks over the course of five years, concluded that the risk of a pedestrian being struck while in a crosswalk was significantly higher when crosswalk markings were placed at intersections, as compared to leaving the crosswalks unmarked. The study recommended that state and local agencies review and update their guidelines based on the study’s findings and that these agencies “ ‘reevaluate[]’ ” their “ ‘[e]xisting crosswalks.’ ”

In 1994, the State’s Department of Transportation (Caltrans) funded and conducted a study known as the Gibby study, which “look[ed] at the question of whether it was safer to mark crosswalks or leave them unmarked at uncontrolled intersections.” In three of the tests conducted for the study, pedestrian-related accidents were six to 75 times higher at marked crosswalks as compared to unmarked crosswalks. As of 1986, each of the 10 governmental agencies that were polled as part of the study had a policy of removing marked crosswalks at uncontrolled intersections because of the danger of marking crosswalks. The study noted that Caltrans’s own policy as stated in its Traffic Manual of 1993 was to “discourage” the marking of crosswalks in uncontrolled intersections.

Plaintiffs’ evidence also included expert testimony and other evidence that while it may seem counterintuitive, placing simple crosswalk markings at uncontrolled intersections is dangerous because a marked crosswalk is “like an invitation for everybody to cross there.” It gives pedestrians “a false sense of security” that vehicles will see the crosswalk and stop, even though drivers may not be able to see the crosswalk at all. Except on expressways, pedestrians in California are, by law, entitled to cross at any intersection, whether marked or unmarked, but if there is no marked crosswalk, pedestrians are discouraged from walking across at that location and are prompted to be more careful if they do.

Plaintiffs also presented evidence showing that the danger of placing simple crosswalk markings at uncontrolled intersections is exacerbated in multi-lane highways such as El Camino because of the risk of a “multiple-threat collision,” where a vehicle in the lane next to the curb slows down to yield to a pedestrian, thereby obstructing both the pedestrian’s view of approaching traffic in other lanes and other drivers’ views of the pedestrian. Drivers in other lanes cannot see that the vehicle next to the curb has slowed down or stopped for a pedestrian; the drivers are therefore unaware a pedestrian is there and continue forward in their own lanes, thereby placing the pedestrian who steps beyond the stopped vehicle at great risk of being struck at full speed by one or more approaching vehicles in other lanes. Multiple-threat collisions are a significant portion of the total crashes that occur at marked crosswalks in uncontrolled intersections. A pedestrian has a nine in ten chance of surviving when hit by a vehicle that is going 20 miles per hour or slower, but only a one in ten chance of surviving when hit by a vehicle that is going 40 miles per hour or faster at the time of impact.

In 2000, the Federal Highway Administration (FHA) issued its first draft of a study entitled “Safety Effects of Marked Versus Unmarked Crosswalks at Uncontrolled Locations.” This was a major study, which a traffic engineer described as “the study of all studies . . . .” The FHA examined pedestrian accidents at 1,000 marked crosswalks and 1,000 unmarked crosswalks in 30 cities in 16 states. FHA concluded in its final draft published in 2005 that crosswalks at uncontrolled intersections should not be marked when there are multiple lanes of traffic, speeds in excess of 35 miles per hour, and an average daily traffic of over 12,000 vehicles. The FHA study recommended that public agencies monitor conditions at crosswalks to determine whether safety enhancements or other actions are warranted. The study observed that multiple-threat collisions were eliminated if crosswalks at uncontrolled intersections were not marked.

In July 2005, Caltrans published a document entitled “Pedestrian and Bicycle Facilities in California, a Technical Reference and Technology Transfer Synthesis for Caltrans Planners and Engineers.” The publication reached the same conclusion as the FHA study and stated: “ ‘Marked crosswalks alone are insufficient, since pedestrian crash risk may be increased due to providing marked crosswalks alone.’ ” Caltrans recommended against marking crosswalks at uncontrolled intersections where there are multiple lanes, speed limits of 35 miles per hour or more, and an average daily traffic of over 15,000 vehicles. The publication also recommended placing safety enhancements at crosswalks that were already marked, including painting more visible “zebra” or “ladder” stripes at the crosswalks or installing flashing lights.

Plaintiffs’ accident reconstruction expert testified that the accident that killed Chandler was a multiple-threat collision, with Chandler entering the crosswalk from lane 3, the side of El Camino next to the Isabella curb. Simon’s car approached the crosswalk in lane 1 or 2. An accident eyewitness testified there were other vehicles to the side of Simon’s car and all vehicles were progressing toward Chandler. In particular, the witness recalled seeing a full-size pickup truck approaching the crosswalk in lane 3. The accident reconstruction expert testified the pickup truck obscured Chandler’s sight line, causing “a problem for him to be able to see Mr. Simon’s vehicle as it’s approaching.” Similarly, the pickup truck obscured Simon’s vision so that he was not able to see Chandler as he began to enter the crosswalk. This was true regardless of whether Simon’s vehicle was in lane 1 or 2.

Plaintiffs presented testimony regarding the various safety measures that are available to prevent against the dangers of marked crosswalks at uncontrolled intersections. One safety measure is a “high-visibility crosswalk” that makes the crosswalk more visible to drivers with additional stripes called longitudinal markings, i.e., markings in the direction the traffic is moving. Other precautions include: using fluorescent yellow-green pedestrian signs so that drivers can easily see there is a crosswalk ahead; using “in-street yield signage,” i.e., a sign affixed to the roadway surface that informs drivers to yield to pedestrians; using signs above the roadway stating it is state law to yield to pedestrians; and placing flashing beacons that indicate a pedestrian is trying to cross. Removing the two white lines that mark a crosswalk at uncontrolled intersections would also enhance safety and eliminate multiple-threat collisions.

Another safety measure is a “pedestrian refuge island”—a raised median that pedestrians can use to stop after crossing one-half of a roadway and assess the traffic before proceeding across the other one-half. This measure, which limits the crossing distance and also allows the pedestrian to look for vehicles in only one set of lanes at a time, reduces the pedestrian crash rate at marked crosswalks by almost half. The crosswalk at the El Camino and Isabella intersection was difficult to cross at once because it was 78 feet across seven lanes of traffic and had an average daily traffic of 30,000 vehicles, or one vehicle per every one and a half seconds.

Two neighbors testified regarding their experiences at and observations of the El Camino and Isabella intersection. Carl Ferrero, who has lived across the street from the intersection for 40 years, testified he does not use the Isabella crosswalk or allow his family members to use it because it is “just too dangerous,” with “too many lanes of traffic and traffic goes too fast” at about 10 miles over the speed limit. Before Chandler’s accident, he had witnessed other accidents and “near misses” at the intersection, including “the collision of a car into two pedestrians [who] were crossing at Isabella.” The two pedestrians brought an action against the State, and Ferrero was deposed in the case. In another incident, a car struck a homeless person who was crossing El Camino. There were so many accidents that Ferrero and his neighbors brought the problem to the attention of the City of Atherton.

Patricia Young, who lives near the El Camino and Isabella intersection, is familiar with the intersection. Young testified she has “pretty much avoided all the [El Camino] crosswalks in Atherton” because “[i]t’s very unsafe in my opinion.” “[C]ars go 50 miles an hour in a 35-mile-an-hour zone. And it’s very hard [to see the crosswalk] with just two [crosswalk] stripes” that are “kind of thin.” “Sometimes you can’t even see the person crossing until you’re right up to them [sic].” Young was aware of two other accidents that had occurred at an El Camino intersection before Chandler was killed. On one occasion, Young’s gardener was driving within the speed limit on El Camino as he approached its intersection with Stockbridge Avenue in Atherton. He did not realize a car to his left had stopped to allow a child to cross the street, and his car struck the child. The other accident was at El Camino near Almendral Avenue, where a homeless man pushing a shopping cart was struck. Young was so concerned about the danger of crosswalks on El Camino that she wrote two letters to Caltrans. She asked Caltrans to install pedestrian-activated flashing lights or “put some orange flags out [on both ends of the crosswalk] at least” as “a cheap solution in the meantime” so that pedestrians crossing can hold orange flags up as they cross, making them more visible to drivers. She did not receive a response from Caltrans.

Plaintiffs also presented evidence of a March 2006 case in which a vehicle struck pedestrian Emily Liou while she was in a marked crosswalk at the uncontrolled intersection of El Camino and Ludeman Lane (Ludeman) in Millbrae, San Mateo County (the Liou accident). Liou, who was injured, sued the State in February 2007 and argued, among other things, that the crosswalk in which she was injured was dangerous “because it was marked instead of being left unmarked.” A jury found in favor of Liou, finding the State was liable for creating or maintaining a dangerous condition at the intersection.

Caltrans chief engineer Katie Yim, who oversees traffic safety for Solano and San Mateo counties, acknowledged that based on the FHA study, the El Camino and Isabella intersection was not a candidate for a marked crosswalk at the time of the accident. After the FHA study came out in 2005, the State did not remove the white lines at the Isabella and El Camino intersection. It also did not place any safety enhancements such as more visible stripes, advanced yield lines, or overhead lights at the intersection before Chandler was killed.

Yim acknowledged at trial that in the Liou action she was aware the Millbrae public works department had complained after the Liou accident that El Camino is dangerous for pedestrians and that Caltrans is “ ‘ “notoriously recalcitrant about allowing any alterations that might enhance pedestrian safety” ’ ” due to its concern that alterations would impede traffic flow. Yim explained that Caltrans must exercise “engineering judgment” by coming up with a decision based on such factors as traffic and the number of accidents at any given location.

The precise date the crosswalk at the El Camino and Isabella intersection was marked was unknown, but the crosswalk was depicted in a 1994 construction design plan, so it had been in place at least since that time. As the person most knowledgeable about the original decision to mark the crosswalk, Yim searched for paperwork regarding the decision but was unable to find anything indicating whether the State exercised engineering judgment to mark the crosswalk. She was also unable to find anything regarding engineering judgment that went into the decision not to remove the crosswalk markings or place safety enhancements after the FHA study was published or after the Liou accident occurred.

Yim testified about the various sources on which the State relies in determining whether changes to a road are necessary. The State oversees 50,000 miles of roads and does not routinely monitor all crosswalks; rather, it relies on the Traffic Accidents Surveillance and Analysis System (TASAS), which collects and analyzes statewide data from the California Highway Patrol (CHP) and local police investigations of reported accidents. Every three months, based on this data, TASAS generates a “Table C” report to Caltrans’s headquarters, listing specific locations that have reached a certain threshold number of accidents. Each of Caltrans’s geographical district offices then investigates these locations.

The El Camino and Isabella intersection had never appeared on the TASAS Table C report because it had not met the threshold number of accidents. TASAS showed that three reported accidents occurred at the El Camino and Isabella intersection before Chandler’s accident and that none of them involved a pedestrian. Yim testified she therefore had no notice from TASAS that the intersection was unsafe at the time of Chandler’s accident.

The State also receives information by way of complaints from the general public, local governments, and the CHP. Safety-related complaints are forwarded to the State’s Office of Traffic Safety for evaluation and analysis of whether safety measures should be taken at that location. Neither Yim nor the sergeant who reviews traffic collision reports for the Atherton Police Department had received any complaints regarding the El Camino and Isabella intersection before Chandler’s accident.

With respect to roadway designs, the State relies on the Manual on Uniform Traffic Control Devices (MUTCD), an engineering manual that sets forth mandatory standards for such things as dimensions and spacing requirements for crosswalk markings. The MUTCD provides under the title “Standard” that crosswalk lines “shall consist of solid white lines that mark the crosswalk.” “Crosswalks should be marked at all intersections where there is substantial conflict between vehicular and pedestrian movements” and “at other appropriate points of pedestrian concentration . . . .” “Crosswalk lines should not be used indiscriminately. An engineering study should be performed before they are installed at locations away from highway traffic signals or STOP signs.”

The MUTCD also provides various statements under the titles “Option” and “Guidance,” including the following “Option”: “For added visibility, the area of the crosswalk may be marked with white diagonal lines at a 45-degree angle to the line of the crosswalk or with white longitudinal lines parallel to traffic flow . . . .” It provides the following “Guidance”: “In general, crosswalks should not be marked at intersections unless they are intended to channelize pedestrians.” The “Guidance” section goes on to state: “The following factors may be considered in determining whether a marked crosswalk should be used: [¶] . . . Vehicular approach speeds from both directions[;] [¶] . . . Vehicular volume and density[;] [¶] . . . Vehicular turning movements[;] [¶] . . . Pedestrian volumes[;] [¶] . . . Roadway width[;] [¶] . . . Day and night visibility by both pedestrians and motorists[;] [¶] . . . [¶] Discouragement of pedestrian use of undesirable routes. . . .”

Yim testified the State follows the standards set forth in the MUTCD whenever it performs traffic engineering design or installs traffic control devices. The El Camino and Isabella crosswalk complied with the applicable MUTCD standards. Yim also testified there is nothing in the MUTCD that requires the removal of marked crosswalks at uncontrolled intersections. Several witnesses for plaintiffs acknowledged the MUTCD sets forth standards, which are “mandatory,” while studies like the FHA study provide only “optional” recommendations and are for reference only.

Yim testified she was aware that one of the arguments Liou made in her case was that the crosswalk in which she was injured was dangerous “because it was marked instead of being left unmarked.” Yim acknowledged that Liou’s attorneys showed her various studies supporting this argument during the litigation and that she had been informed as of March 2006 that marked crosswalks give pedestrians a false sense of security. When the jury returned a verdict in favor of Liou, Yim understood the verdict to mean that the jury found the crosswalk was dangerous because it was marked without safety enhancements.

Yim testified there would not have been enough time between the July 2010 Liou verdict and Chandler’s accident in September 2010 to make changes to the crosswalk at the El Camino and Isabella intersection. She explained that in addition to the El Camino and Isabella intersection, there are 28 other similarly marked crosswalks at uncontrolled intersections in San Mateo County. The MUTCD standards require 30 days’ notice before a crosswalk can be removed, and the State has a policy of holding public hearings and working with local governments before making changes. When asked how much time would have been necessary to make changes to the 29 crosswalks, Yim testified “it could take at least one to two months of time to get a decision or approval from management” plus a mandatory 30 days of notice that must be given to the public under the MUTCD, for a total of “three months, plus,” assuming “we expedite everything in-house.”

The jury unanimously found the intersection of El Camino and Isabella was dangerous at the time of Chandler’s accident; the State created or had notice of the dangerous condition; the injury was foreseeable; and the dangerous condition was a substantial factor in causing Chandler’s death. The jury awarded $3.5 million to Jan Chandler and $2 million to each of the three children. The jury found the State was 90 percent at fault for plaintiffs’ injuries and Simon was 10 percent at fault. The State filed a motion for a new trial which the trial court denied.

DISCUSSION

1. Similar Accidents

The State contends the trial court erred in allowing plaintiffs to present evidence of accidents that were not sufficiently similar to the subject accident. In particular, the State argues the court erred in denying its motion in limine to exclude evidence of the Liou accident and in allowing plaintiffs to elicit “vague, anecdotal” testimony from neighbors about other accidents. (Italics omitted.) We reject this contention.

Government Code section 835 provides that “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 the 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 condition . . . [sufficiently] prior to the injury to have taken measures to protect against the dangerous condition.” “ ‘Dangerous condition’ means 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 plaintiff may present evidence of prior accidents to prove the existence of a dangerous condition or to show the public entity had notice of the dangerous condition. (Genrich v. State of California (1988) 202 Cal.App.3d 221, 227 (Genrich).) Before evidence of prior accidents may be admitted, it must first be shown that “ ‘the circumstances are similar, and the happenings are not too remote in time.’ ” (Ibid.) The requirement of similarity varies in strictness according to the purpose for which the evidence is introduced. (Id. at p. 228.) For example, “ ‘if offered to show a dangerous condition of a particular thing—such as a step—the other accident must be connected in some way with that thing.’ ” (Ibid.) The strictness of this requirement of similarity is “ ‘much relaxed’ ” when the purpose of the offered evidence is to show notice because “ ‘all that is required [in that case] is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation which resulted in the litigated accident.’ [Citations.]” (Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d 210, 220; Genrich, at p. 228.) The admissibility of evidence of prior accidents is confined to the trial court’s sound discretion. (Genrich, at p. 233.)

Here, the trial court determined the Liou accident was admissible on “[t]he issue [of] notice.” This was not an abuse of discretion. As noted, Liou, like Chandler, was a pedestrian who was struck by a car while walking across a marked crosswalk at an El Camino intersection in San Mateo County. The Liou accident occurred in 2006, just a few years before Chandler’s accident. Like the El Camino and Isabella intersection, the intersection at which Liou was injured was busy with an average daily traffic of 30,000 or more vehicles. The El Camino speed limit at both intersections was 35 miles per hour. At both intersections, El Camino had more than four lanes. Both intersections were uncontrolled. When plaintiffs’ counsel asked Yim at her deposition, “ ‘Anything different about those two intersections that you can think of?’ ” Yim responded, “ ‘Not really.’ ”

Moreover, in her action against the State, Liou argued, as plaintiffs did in the present case, that the crosswalk at which she was injured was dangerous because it was at an uncontrolled El Camino intersection and was marked instead of being left unmarked. In fact, Yim suggested it was through the Liou case that she learned about the various studies relating to the dangers of marking crosswalks at uncontrolled intersections. She acknowledged she understood the Liou verdict to mean that the jury found the crosswalk was dangerous because it was marked without safety enhancements.

The State points out several ways in which the intersections differed—one intersection was in a more commercial area; the intersections were 20 miles apart; Liou was struck in the evening whereas Chandler was struck during the day; the topography was different; and Liou did not have a bicycle with her. The State argues, for example, that the topography or the time of day an accident occurs can affect a driver’s ability to see, or that the fact that Chandler had a bicycle likely made him more visible to oncoming drivers. The State does not, however, explain how these differences affected the issue of notice. Further, although the intersections were 20 miles apart, they were both located in San Mateo County, where Yim was responsible for overseeing traffic safety on behalf of the State. (See Morfin v. State of California (1993) 12 Cal.App.4th 812, 816 [evidence of collisions at different DMV locations discoverable on the issue of whether a DMV office in Chula Vista was unreasonably designed where the designs at the other DMV locations and the Chula Vista DMV were similar].)

As noted, the requirement of similarity is “ ‘much relaxed’ ” when the purpose of the offered evidence is to show notice. (Laird v. T.W. Mather, Inc., supra, 51 Cal.2d at p. 220.) “ ‘[A]ll that is required . . . is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation which resulted in the litigated accident.’ [Citations.]” (Ibid.) Because the two intersections and accidents were sufficiently similar in material ways and provided the State with actual or constructive notice of the dangers of placing marked crosswalks with no safety enhancements at uncontrolled El Camino intersections, the trial court did not abuse its discretion in allowing plaintiffs to present evidence of the Liou accident.

We further conclude the trial court did not abuse its discretion in allowing plaintiffs to present the testimony of neighbors Ferrero and Young. In Genrich, the State argued on appeal that the trial court abused its discretion in allowing a neighbor to testify generally regarding “ ‘burning rubber,’ ” “ ‘fender benders,’ ” “ ‘near misses,’ ” and “ ‘screeching tires’ ” that he observed or heard at the subject intersection even though there was no showing that any of his testimony related to accidents involving pedestrians. (202 Cal.App.3d at pp. 231–232.) The Court of Appeal held the testimony was properly admitted on the issue of notice because these observations and experiences led the neighbor to complain to Caltrans that the intersection was unsafe for pedestrians. (Id. at p. 232.)

Similarly, here, neighbors Ferrero and Young testified regarding their experiences at and observations of the El Camino and Isabella intersection and other similar intersections along El Camino. They described specific pedestrian injuries and deaths that had occurred and explained that these experiences led them to complain to government officials about what they believed were dangerous conditions.

The State argues Young should not have been allowed to testify about the accident in which her gardener struck a child at an El Camino intersection because it was based on hearsay and it was not sufficiently similar to Chandler’s accident. Specifically, the State points out that the gardener’s accident involved a multiple-threat collision where the gardener did not see the child because of a car in the lane next to the curb that blocked his view of the child. Here, in contrast, there was no evidence other than plaintiffs’ expert’s testimony that Chandler’s accident was a multiple-threat collision. The State goes on to argue that plaintiffs’ expert’s testimony should have been excluded as hearsay because the expert improperly relied on police reports in opining that Chandler’s accident was a multiple-threat collision. (Citing People v. Sanchez (2016) 63 Cal.4th 665 [it is improper for an expert to testify to case-specific out-of-court statements to explain the bases for his or her opinion].)

To the extent the State is arguing that both Young’s testimony and the expert’s testimony should have been excluded as hearsay, we note the State’s failure to object to the witnesses’ testimony on hearsay grounds forfeits the issue. (Evid. Code, § 353, subd. (a) [“verdict shall not be set aside” “by reason of the erroneous admission of evidence” unless objection and “specific ground of the objection” is timely made]; Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611.) In any event, even if the gardener’s accident was a multiple-threat collision and Chandler’s accident was not, we conclude this difference alone did not render the gardener’s accident, which was a vehicle-pedestrian accident that occurred at an El Camino intersection, so dissimilar from Chandler’s accident that it should have been excluded as a matter of law. Moreover, in the same way the neighbor’s testimony in Genrich regarding dissimilar accidents was admissible to show what prompted him to complain to Caltrans, Young’s testimony about her gardener’s accident was properly admitted to explain why she decided to write two letters to Caltrans about the dangerous condition at El Camino intersections, thus providing Caltrans with notice of such dangerous conditions. (Genrich, supra, 202 Cal.App.3d at pp. 231–232.)

Finally, we note the State made no objection at trial that the accidents Ferrero described were not substantially similar to Chandler’s accident. As nearly all of the incidents and accidents he described occurred at the very intersection at issue in this case, his testimony provided probative evidence of the danger the crosswalk presented.

2. CACI No. 1112

The State contends the trial court erred in declining to instruct the jury with CACI No. 1112 regarding a reasonableness defense and omitting a question related to the defense from the verdict form. We disagree.

A party is entitled upon request to correct, nonargumentative instructions on every theory of its case that is supported by substantial evidence. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) CACI No. 1112, entitled “Affirmative Defense—Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b)),” provides: “A public entity is not responsible for harm caused by a dangerous condition if its failure to take sufficient steps to protect against the risk of injury was reasonable. If [defendant] proves that its conduct was reasonable, then your verdict must be for [defendant]. [¶] In determining whether [defendant’s] conduct was reasonable, you must consider how much time and opportunity it had to take action. You must also weigh the likelihood of seriousness of the potential injury against the practicality and cost of protecting against the risk of injury.” (CACI No. 1112 (2008 rev.) (2019 ed.) p. 673.)

To prevail in this defense, the public entity has the burden of showing it would have been “ ‘too costly and impractical . . . to have done anything else,’ ” i.e., that “ ‘under all the circumstances, including the alternative courses of action available to it and the practicability and cost of pursuing such alternatives, its action in creating or failing to remedy the condition was not unreasonable.’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1138.) The determination of reasonableness involves a weighing of “the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.” (§ 835.4, subd. (b).)

This defense allows public entities to “defend against liability on the basis that, because of financial or political constraints, the public entity may not be able to accomplish what reasonably would be expected of a private entity.” (Metcalf v. County of San Joaquin, supra, 42 Cal.4th at p. 1138.) In Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 712–714, for example, the plaintiffs argued that the lack of median barriers on highways constituted a dangerous condition. The State countered that it was financially unable to remedy the condition because the former California Highway Commission, which had set aside funding for the construction of barriers, withdrew all funding shortly before the accident, based on a decision to instead change the entire configuration of its highways. (Ibid.) The jury ultimately found in favor of the plaintiffs, but the evidence the State presented was deemed sufficient to trigger the trial court’s obligation to instruct the jury on a reasonableness defense. (Id. at pp. 714, 720.)

Here, the trial court declined to give CACI No. 1112 on the ground that there was insufficient evidence to support it. We agree there was insufficient evidence to support the giving of the instruction. The State points out that it oversees over 50,000 miles of roadway; El Camino traverses three counties; and there were 29 uncontrolled crosswalks along El Camino. The State, however, did not present any evidence it was financially or otherwise incapable of making changes to the 29 crosswalks. It did not present evidence, for example, that unmarking the 29 crosswalks or adding safety enhancements such as painting more visible stripes was cost-prohibitive. Yim testified that the El Camino and Isabella intersection had not met the “threshold” number of accidents on TASAS for the State to take any action, but the State did not argue or present any evidence as to what the “threshold” number is, whether and why it is reasonable for the State to rely on TASAS, and why it is unable to take action until a certain number of accidents or deaths have occurred. The State did not even argue in closing that it acted reasonably; rather, it argued only that there was no dangerous condition, suggesting that the State, too, understood that evidence of reasonableness was sparse.

The State argues the instruction should have nevertheless been given based solely on Yim’s testimony about time constraints, i.e., that there was insufficient time to take action between July 2010 when the Liou verdict was rendered—the date the State claims it was placed on notice of the dangerous condition—and September 2010, when Chandler’s accident occurred. The Liou accident, however, occurred in 2006, and Liou filed her action against the State in February 2007, more than three and a half years before Chandler’s accident. One of Liou’s claims throughout her case related to the dangers of marking crosswalks at uncontrolled intersections. Shortly after Liou was injured, the Millbrae public works department spoke out about how dangerous El Camino is for pedestrians, and Yim acknowledged she was aware of this warning. Yim also acknowledged she had been informed as of March 2006 that marked crosswalks give pedestrians a false sense of security that vehicles will see the crosswalks and stop.

Further, an expert in the Liou case submitted an affidavit in October 2009 that alerted the State to the dangers of “marking crosswalks at uncontrolled intersections on El Camino,” and he testified regarding his opinions at an April 2010 deposition. In addition, there were various studies including an FHA study and a study Caltrans funded that alerted the State to this dangerous condition; in fact, Caltrans’s own 2005 publication reached the same conclusion as the FHA study: “ ‘Marked crosswalks alone are insufficient, since pedestrian crash risk may be increased due to providing marked crosswalks alone.’ ” Further, Yim acknowledged that based on the FHA study, the El Camino and Isabella intersection should not have been marked. In light of the overwhelming evidence that the State had actual or constructive notice of the dangerous condition well before the Liou verdict was rendered, the trial court did not err in declining to give CACI No. 1112.

In light of our conclusion that the trial court did not err, we also reject the State’s contention that the court erred in failing to include a question relating to the reasonableness defense in the jury verdict form. “[I]f, as here, the trial court does not instruct the jury on the section 835.4 defense, it should not include a question pertaining to that defense in the verdict form given the jury.” (Metcalf v. County of San Joaquin, supra, 42 Cal.4th at p. 1137, fn. 5.)

3. CACI Nos. 1120, 1121

The State contends the trial court erred in declining to instruct the jury with CACI Nos. 1120 and 1121. We disagree.

CACI No. 1120, entitled “Failure to Provide Traffic Control Signals (Gov. Code, § 830.4),” provides: “You may not find that [name of defendant]’s property was in a dangerous condition just because it did not provide a [insert device or marking]. However, you may consider the lack of a [insert device or marking], along with other circumstances shown by the evidence, in determining whether [name of defendant]’s property was dangerous.” (CACI No. 1120 (2003 new) (2019 ed.) p. 675.) The instruction is based on section 830.4, which “ ‘precludes a plaintiff from imposing liability on a public entity for creating a dangerous condition merely because it did not install the described traffic control devices.’ [Citation.] In short, ‘[t]he lack of a traffic signal at the intersection does not constitute proof of a dangerous condition.’ ” (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135, italics added.)

CACI No. 1121, entitled “Failure to Provide Traffic Warning Signals, Signs, or Markings (Gov. Code, § 830.8),” provides: “A public entity is not responsible for harm caused by the lack of a [insert relevant warning device] unless a reasonably careful person would not notice or anticipate a dangerous condition of property without the [insert relevant warning device].” (CACI No. 1121 (2003 new) (2019 ed.) p. 677.) This instruction is based on section 830.8, which provides a limited immunity for public entities exercising their discretion in the placement of warning signs. (Kessler v. State of California (1988) 206 Cal.App.3d 317, 321.)

Cases interpreting sections 830.4 and 830.8 have held they “provide[] a shield against liability only in those situations where the alleged dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory traffic device or street marking” or warning sign. (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534 (Washington) [traffic device or marking]; Hilts v. County of Solano (1968) 265 Cal.App.2d 161 [traffic device, marking, and warning sign] (Hilts).) “If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signals or street markings, the statute provides no immunity.” (Washington, at pp. 1534–1535.)

In Hilts, the county argued the trial court should have granted its motion for judgment notwithstanding the verdict because the evidence showed that it had no duty to warn the plaintiffs of the dangerous condition under section 830.8 and that it could not be liable on any basis other than the failure to provide regulatory signals for which it had immunity under section 830.4. (Hilts, supra, 265 Cal.App.2d at p. 173.) The Court of Appeal rejected the argument, holding: “The testimony of . . . the traffic engineer[] indicates that the instant intersection was dangerous not only because of the failure to provide warning or regulatory signs or signals but also because of the conjunction of other factors such as the presence of trees . . . and the method of striping the intersection. Accordingly, we cannot say as a matter of law that the immunities of sections 830.4 and 830.8 governed this case.” (Hilts, at p. 174, italics added.) “Section 830.4 states that a condition is not a dangerous condition merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, speed restitution signs, or distinctive roadway markings. Section 830.8 prevents the imposition of liability solely on the basis of the failure to provide traffic regulatory or warning signals or devices of a type not listed in section 830.4. . . . We, therefore, conclude that it does not appear that as a matter of law County was immune from liability under sections 830.4 or 830.8.” (Hilts, at p. 174; see Washington, supra, 219 Cal.App.3d at p. 1535 [agreeing with Hilts].)

Here, plaintiffs did not argue—and the evidence did not show—that a dangerous condition existed at the El Camino and Isabella intersection solely as a result of the State’s failure to provide a traffic device, street marking, or warning sign. Although plaintiffs argued that various safety enhancements such as traffic signals or warning signs would have made the intersection less dangerous, they also argued that a refuge island should have been installed, that the State was aware of warnings that it should not have marked the crosswalk at all, and that the intersection was very busy with heavy traffic and vehicles traveling at over 35 or 40 miles per hour. Just as the plaintiff in Hilts presented evidence that the peculiarly-shaped intersection at issue was dangerous in part because of “the method of striping the intersection” (265 Cal.App.2d at p. 174), plaintiffs here argued the State made an uncontrolled, heavily-trafficked intersection more dangerous by affirmatively marking it with a crosswalk consisting only of two white parallel lines. Accordingly, the immunities under CACI Nos. 1120 and 1121 did not apply in this case, and the trial court did not err in declining to give the instructions.

4. Compliance with the MUTCD

The State contends the trial court erred in barring testimony of its compliance with standards set forth in the MUTCD. The contention fails because the record shows the court did in fact allow the State to present such testimony. We also conclude that the court did not abuse its discretion in excluding further testimony regarding MUTCD compliance.

When counsel for the State began asking Yim about MUTCD standards, plaintiffs’ counsel objected on relevance grounds. Outside the presence of the jury, the State’s counsel argued that nothing in the MUTCD required the removal of crosswalks or the installation of safety enhancements at uncontrolled intersections and that the State should be allowed to present evidence of compliance with the MUTCD to show it acted reasonably. Counsel noted that plaintiffs had been allowed to present evidence of studies and other accidents to show notice and that the State should be allowed to “counter” that by showing it reasonably relied on MUTCD standards, which are “mandatory,” in contrast to studies, which are not.

Plaintiffs’ counsel argued, “The question in this case is whether the intersection was dangerous. We’ve introduced studies showing that it was. The State’s compliance or noncompliance with . . . its own manuals that it wrote doesn’t touch upon that question.” Plaintiffs’ counsel argued that the State “cannot give itself permission, through a standard or otherwise, to leave a dangerous condition” and that jurors would be misled into believing “oh, they [the State] did everything that they were supposed to do, therefore, there can be nothing wrong with the intersection.”

The trial court asked counsel for the State, “Are you saying that if Caltrans had notice of the dangerous condition, this standard allows them [sic] to essentially ignore it?” Counsel responded the standard does not allow that but that the State should be allowed to introduce the evidence to show it did not “violate[] anything that we were required to do.” Ultimately, the court stated it would allow the State to present the evidence: “I think it is relevant for the State to present their [sic] position . . . . I’m going to let that testimony be given.”

Thereafter, the trial court allowed testimony regarding MUTCD compliance, and the relevant MUTCD standards were admitted into evidence. Yim testified there is no standard in the MUTCD that requires the State to remove marked crosswalks at uncontrolled intersections and no standard in the MUTCD that requires the State to install safety enhancements at uncontrolled intersections. The State also elicited testimony from plaintiffs’ expert that the El Camino and Isabella crosswalk complied with MUTCD standards.

In addition, several witnesses for plaintiffs testified that the MUTCD sets forth “mandatory” standards while studies like the FHA study provide only “optional” recommendations and are for reference only. The State also presented evidence that although its 2005 Caltrans publication discussed the dangers of marking crosswalks at uncontrolled intersections, the publication did not set forth a standard, specification, or regulation and was not intended to replace existing mandatory standards. Yim testified that for “ ‘authoritative and current information on standards and guidance regarding pedestrian and bicycle facilities in California, there is no substitute for . . . the MUTCD.’ ” Thus, the record establishes that the State did in fact present substantial testimony of its compliance with MUTCD standards.

We also reject the State’s argument that the trial court should have allowed further testimony, including its traffic engineer’s testimony, “on whether the subject intersection met with applicable standards.” A trial court is vested with wide discretion in determining whether evidence is admissible (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446–447), and it is the appellant’s burden to establish an abuse of discretion (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281). Here, in light of the admission of the relevant MUTCD standards into evidence, testimony regarding the State’s compliance with those standards, and Yim’s testimony that “there is no substitute for . . . the MUTCD” when it comes to standards, the court could reasonably have excluded further testimony on that issue as cumulative. (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 [court has discretion to exclude cumulative evidence].) There was no abuse of discretion.

5. Juror Information

Near the close of plaintiffs’ evidence on liability, Juror No. 1 (JN1) reported that he realized he knew a witness, Patti Michelsen, who was scheduled to testify at trial. At a hearing at which the trial court questioned JN1 and allowed the parties to question him, JN1 explained: “You [the court] read off a very long list of names very quickly, and I didn’t pick [Michelsen’s name] up. And then I saw a familiar face out there [in the hallway].” JN1 said he went to school with Michelson’s daughter for 11 years and that Michelson was the dance coordinator when JN1 was in a play in eighth grade. He said, “So I’ve known her and her family for a long time.”

The trial court asked JN1 whether this would affect his decision in the case, and JN1 responded, “Not at all, especially because I believe it’s for a character witness . . . .” Plaintiffs’ counsel clarified that Michelsen is a damages witness, and the State’s counsel asked, “So would it make any difference if Ms. Michelsen’s testimony . . . [is] regarding damages issues[;] will that have any impact on your ability to be impartial?” JN1 said he did not believe it would. The court instructed JN1 not to talk to Michelsen until after the trial, and JN1 agreed.

After JN1 left the courtroom, the trial court asked plaintiffs’ counsel whether he needed Michelsen to testify. Plaintiffs’ counsel said he did and added, “But, honestly, I really don’t see how it’s an issue.” Counsel for the State stated it was “our preference” and “request” “that given this disclosure . . . and given the time constraint . . . , Ms. Michelson not be allowed to testify in an abundance of caution.” Counsel for the State said Michelsen was “not a critical witness,” and it would not “pose any severe inconvenience or prejudice to the plaintiffs if . . . we were to have plaintiffs not call Ms. Michelsen.”

The trial court stated, “Ms. Michelsen is really an ancillary witness talking about the family. I don’t know how she knows the Chandler family. I don’t remember her as a witness in the first trial. . . .” Plaintiffs’ counsel stated Michelsen did testify at the first trial. The court continued: “But this is really an ancillary issue. She’s not an eyewitness. She’s not a percipient witness. And given [that] it’s important, but . . . not fundamentally important to liability issues, . . . the Court is going to allow her to testify. And I’m not going to recuse Juror No. 1. He’s a really bright, energetic, young man. We don’t want to lose him on the jury.” Counsel for the State said, “I would just add one thing. That would be, do we anticipate Patti Michelsen testifying about her daughter?” Plaintiffs’ counsel responded, “No.” Michelsen testified about the close relationship plaintiffs shared with Chandler. JN1 became the jury foreperson.

The State contends the trial court should have dismissed JN1 because he “admitted he had a relationship with a witness and her family, which he failed to disclose during voir dire, and it became clear that [he] spoke with that witness about the scope and nature of her testimony during trial.” (Italics omitted.) Plaintiffs argue the State forfeited the issue by “intentionally declining to object to [JN1’s] continued presence even after learning that [he] knew Michelsen” and by not requesting a mistrial. We agree the State forfeited the issue.

As noted, counsel for the State argued only that Michelsen should not be allowed to testify. Counsel did not argue JN1 had committed misconduct and never requested that he be dismissed. The State argues it would have been futile to object because the trial court indicated it was not going to dismiss JN1, but the record shows that counsel for the State had many opportunities to raise the issue but chose not to do so. For example, when counsel discussed the “inherent . . . bias” that is involved “just by virtue of [JN1] knowing [Michelsen],” counsel did not ask that JN1 be dismissed; rather, she argued it would not “pose any severe inconvenience or prejudice to the plaintiffs if we were . . . to have plaintiffs not call Ms. Michelsen.” After the court stated it was going to allow Michelsen to testify and not going to dismiss JN1, counsel asked to “just add one thing”—whether Michelsen would testify about her daughter. Throughout the hearing, the State was concerned only with whether Michelsen should be allowed to testify and with the content of her testimony, but not with whether JN1 should be dismissed in the event Michelsen were to testify, or because of any misconduct he committed by speaking to Michelsen.

In People v. Stanley (2006) 39 Cal.4th 913, at page 950, the Supreme Court held “counsel failed to object to [the juror’s] continued service on the jury, and failed to request a mistrial on grounds of juror misconduct. As such, the claim is waived on appeal.” Similarly, here, the State forfeited the issue by not objecting to JN1’s continued service and not requesting a mistrial.

Even assuming the State did not forfeit the issue, we conclude there was no prejudicial error. First, we reject the State’s argument that JN1 “committed clear juror misconduct” by failing to disclose his relationship to Michelsen, by “discussing the scope and nature of Michelsen’s testimony with her,” and by continuing to converse with Michelsen “even after the relationship was disclosed.” The State cites In re Hamilton (1999) 20 Cal.4th 273, 294, for the proposition that when there is an “overt event [that] is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when a juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct.”

Here, there was no evidence of any concealment on the part of JN1. Although he did not disclose he knew Michelsen during voir dire, he explained this was because the trial judge had “read off a very long list of names very quickly” and he “didn’t pick [Michelsen’s name] up.” The State asserts the fact that JN1 knew Michelsen was a “character witness” shows that he improperly spoke to Michelsen about her testimony or that he continued to speak to her even after learning she was a witness in the case. JN1, however, stated he saw “a familiar face out there”; he could have simply asked what Michelsen was doing there, to which Michelsen would have replied she was a character witness in the Chandler case. There is nothing in the record suggesting JN1 continued to speak to Michelsen after learning she was a witness. Rather, it appears he promptly informed the court clerk after realizing he knew a witness. Further, as noted, the trial court held a hearing at which it allowed the parties to ask questions. If counsel for the State had any concerns about concealment or about conversations JN1 may have had with Michelsen, she was free to ask him at the hearing. The court did not err in declining to dismiss JN1 on the basis of misconduct.

Second, even assuming the trial court should have dismissed JN1 based on any inherent bias resulting from his relationship to Michelsen and/or Michelsen’s family, we conclude there was no prejudice. A presumption of prejudice arises where juror misconduct or an irregularity in the jury proceedings is shown. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416.) This presumption may be rebutted by “an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party.” (Ibid.)

Here, the evidence against the State was strong, and there was no indication that absent JN1’s continued presence, the jurors would have reached a different verdict, either by finding no liability or by awarding plaintiffs less in damages. That the State did not ask for JN1’s dismissal suggests it believed his continued presence on the jury did not pose a threat of prejudice. Moreover, Michelsen was a damages witness who testified only about her observations of how close the family was. Her testimony was very brief and was not particularly significant in light of other powerful testimony from Chandler’s widow and daughters, and one of the daughter’s friends about the relationship the family shared. The State did not ask Michelsen any questions and presented no contrary evidence; it was undisputed that the family was close and that Chandler’s death was a tremendous loss. There is nothing in the record to support a conclusion that JN1’s continued presence on the jury prejudiced the State such that reversal is warranted.

DISPOSITION

The judgment is affirmed. Plaintiffs shall recover their costs on appeal.

 

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Fujisaki, J.

WE CONCUR:

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Siggins, P. J.

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Petrou, J.

A149508