Case Name: Ryan Luciano v. City of Santa Clara, et al.

Case No.: 16CV295994

Defendant City of Santa Clara’s Motion for Summary Judgment

Factual and Procedural Background

In his complaint filed June 6, 2016, plaintiff Ryan Luciano (“Luciano”) asserts a single cause of action against defendant City of Santa Clara (“City”) for Dangerous Condition of Public Property. Plaintiff Luciano alleges that, on February 22, 2015, he rode his bicycle on the sidewalk in front of 1925 El Camino Real in Santa Clara and his front tire came into contact with a physical defect in the walkway. (Complaint, ¶Prem.L-1.) The dangerous condition caused plaintiff to eject from his bicycle and fall onto the concrete walkway. (Id.) Plaintiff suffered bodily injury including to his left arm as a result. (Id.)

Defendant City filed its answer to plaintiff Luciano’s complaint on July 4, 2016. The various co-defendants cross-claimed against each other for indemnity.

On September 28, 2017, defendant City filed the motion now before the court, a motion for summary judgment against plaintiff Luciano.

I. Defendant City’s motion for summary judgment is DENIED.

A. Dangerous condition of public property.

“A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 citing Gov. Code, §835, subd. (b).) Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. To establish liability under Government Code section 835, the following essential elements must be proved:

(1) The public property was in a dangerous condition at the time of the injury;
(2) The injury to the plaintiff was proximately caused by the dangerous condition;
(3) The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and
(4) Either:
(a) The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
(b) The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

(Gov. Code, §835; emphasis added; see also 2 VanAlstyne, California Government Tort Liability Practice (4th ed. 2006) §12.5, pp. 795 – 796; see also CACI, No. 1100.)

1. Dangerous condition.

In seeking summary judgment, defendant City begins by arguing that the subject property/sidewalk was not in a dangerous condition at the time of the incident. Government Code section 830, subdivision (a) defines the term “dangerous condition” to mean “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.” “In general, ‘whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’” (Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 810.) “[A]lthough the question of whether a dangerous condition exists is often one of fact, the issue may be resolved as a question of law when reasonable minds can only draw one conclusion from the facts.” (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1054; see also Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.)

City begins with a summary of the facts: On February 22, 2015, plaintiff was riding his bicycle eastbound on the sidewalk adjacent to 1925 El Camino Real in Santa Clara, traveling at about five to ten miles per hour. Prior to the date of the incident, plaintiff had traveled on his bicycle over the same portion of the sidewalk approximately ten times without incident. The weather conditions on the date of the incident were “nice out,” “fairly clear out,” and “unusually warm for February.” Immediately prior to the incident, plaintiff did not notice any accidents, distractions, pedestrians, or other bicycles on the sidewalk. As he approached the subject water meter, there was nothing obstructing plaintiff’s view. Plaintiff does not know what part of the subject water meter box he hit with his bike, allegedly causing his fall. Plaintiff previously posited that the metal cover of the subject water meter lid “flipped up and was loose,” potentially causing his fall. During the last 300 feet immediately preceding the accident, plaintiff was standing upright on the bicycle pedals with his hand on the handlebars. Immediately after his fall, plaintiff inspected the subject water meter and could “definitely remember the dirt was displaced” along the edge of the subject meter. Plaintiff did not know whether the displaced dirt was on the edge of the subject meter box prior to his accident. Plaintiff did not take any photographs of the subject water meter box on the date of the incident.

On February 22, 2015, plaintiff’s fiancé called to notify the City that plaintiff fell on the subject water meter box. Upon notice of plaintiff’s alleged fall, Sean Peterson—a water meter technician for the City—immediately inspected the subject water meter. Mr. Peterson found the subject meter lid to be in its proper, stable position. On February 26, 2015, John Cruickshank—the Assistant Superintendent for the City’s Water and Sewer Department—personally inspected the subject water meter. Assistant Superintendent Cruickshank found no problems with any of the meter lids in the area.

Government Code section 830.2 permits the court to decide the existence of a “dangerous condition” as a matter of law. That section states, “A condition is not a dangerous condition within the meaning of this chapter 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.” (See also CACI, No. 1102.)

Here, City invites the court to decide the existence of a dangerous condition as a matter of law. City contends the water meter did not pose a substantial risk of injury to the public when used with reasonable care. City refers to the fact that it did not find any problems with the subject water meter lid. City also cites to the fact that the subject water meter lid is heavy and difficult to remove and the meter lid sits atop a concrete lip that prevents the lid from dislodging when a pedestrian steps or rides a bicycle or skateboard over the lid.

City’s argument asks the court to evaluate the condition of the water meter as though the cover was flat and not protruding, a fact which is disputed by the plaintiff. If the court views the evidence most favorably to plaintiff, the court would have to consider the condition as though the water meter cover were protruding as plaintiff asserts. If so, the court cannot state, as a matter of law, that the risk created by such a 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.

2. Proximate cause.

The second element necessary to establish a claim for dangerous condition of public property is, “The injury to the plaintiff was proximately caused by the dangerous condition.” As a second basis for summary judgment, City argues plaintiff’s injuries were not proximately caused by the dangerous condition. Again, City relies principally upon the fact that it did not find any problems with the subject water meter lid. City also contends plaintiff does not know what caused him to fall. In reviewing the City’s separate statement, the court believes City is misstating the evidence. Plaintiff Luciano testified he “didn’t know exactly what part of the box [he] hit,” and unequivocally answered an interrogatory identifying the defect that cause the incident as “metal cover that flipped up and was loose. The metal trap door that opened up on it. Lid was not properly secured.” Essentially, defendant City contends there was no defect while plaintiff Luciano contends a defect existed. This factual dispute precludes summary judgment on the issue of proximate cause.

3. Notice.

Finally, defendant City argues it did not have actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

With regard to actual notice, there is no dispute that, “Prior to plaintiff’s alleged injury in February 2015, the City had not received any prior notice of injuries caused by the subject water meter at 1925 El Camino Real.”

City would be deemed to have constructive knowledge of a dangerous condition if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code, §835.2, subd. (b).) “On the issue of due care, admissible evidence includes … Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.” (Gov. Code, §835.2, subd. (b)(1).) Admissible evidence on the issue of due care also includes, “Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (Gov. Code, §835.2, subd. (b)(2).)

City proffers evidence that its Water and Sewer Department dispatches meter readers to water meters, including the one at 1925 El Camino Real, on a monthly basis. While the main purpose of this dispatch is to check the water meter usage readings, it also allows the meter readers to identify any issues or hazards with the meter lids. The City’s meter readers visited the subject meter box to conduct usage readings on February 5, 2015 and March 5, 2015. The meter readers did not note any problems pertaining to the subject meter lid.

In opposition, plaintiff proffers evidence that City only inspects water meter lids either incidental to monthly reading of the meter, or, upon request from the public. There is no written inspection protocol. There is no training specific to inspection protocol. There is no defined scope of inspection. The meter readers inspect the meter box by lifting the metal lid with a pole, holding the lid open with their foot pressed against the hinge, and then peering into the hold to take note of the reading. The meter readers use their foot in this manner because the spring at the hinge of the metal lid causes it to close. The meter readers do not inspect the spring. The meter readers do not inspect the hinge. The spring on the subject metal lid was defective and could remain open.

The evidence before the court presents a triable issue with regard to whether City’s inspection system was operated with due care. Moreover, as explained above, a plaintiff must prove either (a) a negligent or wrongful act or omission or (b) actual or constructive notice. (See Gov. Code, § 835 (emphasis added); see also Metcalf v. County of San Joaquin (2008) 42 Cal. 4th 1121, 1130.) Where this element is written in the alternative, a defendant moving for summary judgment would have to demonstrate that plaintiff cannot establish either. Thus, City would not be entitled to summary judgment simply by demonstrating a lack of notice.

For the reasons stated above, defendant City’s motion for summary judgment is DENIED.