Case Name: Burns v. County of Santa Clara, et al.
Case No.: 1-12-CV-219635

Currently before the Court is the motion for summary judgment or, in the alternative, summary adjudication of defendant County of Santa Clara (the “County”).

The request for judicial notice submitted by plaintiff Stephen Burns (“Plaintiff”) is GRANTED as to request nos. 1, 2, and 4, and the County’s objection to request no. 4 is OVERRULED. (Evid. Code, §§ 451, subd. (f) and 452, subd. (h).) Plaintiff’s request is DENIED as to request nos. 3, 5, and 6. Plaintiff provides no authority supporting the proposition that reports published by government agencies are official acts. The County’s objections to request nos. 3, 5, and 6 are SUSTAINED on that basis.

Plaintiff’s objections to paragraphs 4, 7, and 8 of the declaration of Robert Lindskog are OVERRULED given that Mr. Lindskog’s experience as a civil engineer and accident reconstructionist are adequate to inform his statements and the photographs provide an adequate foundation for Mr. Lindskog’s testimony as to their contents. Plaintiff’s objection to Mr. Lindskog’s declaration is SUSTAINED as to the last sentence in paragraph 6 given that Mr. Lindskog was not present at the site of the accident and does not indicate the basis for his statement concerning the conditions there, but is OVERRULED as to the first two sentences in paragraph 6 because these statements do not relate to conditions at the time of the accident and Plaintiff’s objection does not address them.

Plaintiff also objects to portions of paragraph 4 of the declaration of Dan Pendergraft, which pertain to the County’s notice of gravel on the road. As discussed below, the Court need not address this issue, and consequently deems Plaintiff’s objections MOOT as to this paragraph. Plaintiff’s objections to paragraphs 5 and 6 of Mr. Pendergraft’s declaration are OVERRULED. Mr. Pendergraft is responsible for the supervision of road maintenance for the County, and evidence that contradicts Mr. Pendergraft’s statement does not establish that the statement lacks foundation.

Finally, Plaintiff’s objections to Officer Jared Lambert’s deposition are OVERRULED given Officer Lambert’s testimony that he is trained to address unsafe road conditions.

The County’s objections to paragraph 18 of the declaration of Russell Darnell, Ph.D. are OVERRULED. Dr. Darnell’s declaration indicates that he relied upon the deposition testimony of Plaintiff and Franz Vaiarello in forming his opinion, and Plaintiff’s remaining arguments may bear on the weight the declaration should be accorded, but do not establish that it is inadmissible. The remainder of the County’s objections to Dr. Darnell’s declaration are deemed MOOT given that the Court does not rely on this evidence to support the ruling below.

The County’s objection to portions of the deposition of Franz Vaiarello is OVERRULED. Mr. Vaiarello’s observation of gravel at the intersection near where Plaintiff’s accident occurred is relevant to show that there was gravel at the site of the accident, even it Mr. Vairello did not observe gravel at the exact site of the accident.

The County’s objection to the testimony at pages 27 to 29 of the deposition to Nicomedes Taloma is OVERRULED. The County does not explain its objection that Mr. Taloma’s testimony lacks foundation, and the Court finds that Mr. Taloma’s experience driving a sweeper for the County provides adequate foundation for his testimony.

The County’s objections to the other portions of Mr. Taloma’s testimony and to portions of the depositions of Leonard Leotta and Dan Fortino are deemed MOOT given that the Court did not rely on this evidence to support its ruling.

The motion for summary judgment is DENIED.

The County moves for summary judgment on the grounds that the gravel on Old Santa Cruz Highway was not a dangerous condition and the County did not leave the gravel on the roadway or have notice of it. (Gov. Code, § 835; see also Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 154-155.)

The County contends that the gravel that allegedly caused Plaintiff’s accident was a small amount that is normal for a rural road, and thus constitutes a trivial defect. The County submits the photographs Plaintiff took at the scene of the accident (DUF, ¶¶ 8 and 9). The photographs are in low resolution, but appear to depict gravel scattered, although not piled, across the road. While the Court may rely on such evidence to determine a defect is trivial in appropriate circumstances, here, the extent of the gravel and its dangerousness are not obvious from the photographs. (Cf. Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928 [photographs of crack pedestrian tripped on that were submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal].) Consequently, the County does not meet its initial burden based on the photographs. The County also submits the declaration of civil engineer and accident reconstructionist Robert Lindskog, who states that Plaintiff’s photographs “reflect gravel that is common and expected on rural roads” (Declaration of Robert Lindskog ISO County’s Motion, ¶ 4), and opines that a reasonably prudent motorcyclist could safely operate a motorcycle on such gravel (id. at ¶¶ 7-8). Finally, the County points to the deposition testimony of Officer Lambert, who stated that he is trained to address unsafe road conditions, observed only a normal amount of gravel on the road where Plaintiff’s accident occurred, and would have reported excessive gravel had he observed it. (DF, ¶¶ 18 and 19.) While Plaintiff attacks the probative value of this evidence based on a number of arguments, it does tend to show that the amount of gravel present was trivial. Consequently, the County has satisfied its initial burden of production on this point.

However, in opposition, Plaintiff submits the deposition testimony of Frank Vaierello, who, earlier on the day of the accident, saw an eight-square-foot patch of gravel on Old Santa Cruz Highway near the site of Plaintiff’s accident that was oriented in a manner that would be hard for a driver turning onto the highway to see. (PF, ¶ 30; Plaintiff’s Compendium of Exhibits and Evidence, Ex. 3, Deposition of Franz Vaiarello, pp. 23:9-25:23, 30:20-31:12.) Plaintiff also submits the declaration of engineer, former motorcycle racer, trainer for motorcycle riders, and motorcycle accident reconstructionist Russell Darnell, Ph. D. Mr. Darnell states that gravel such as that described by Plaintiff and Mr. Vaiarello in their deposition testimony “constitutes a serious road hazard that would cause motorcyclists to crash even with the exercise of reasonable care.” (Declaration of Russell Darnell, Ph. D. in Opposition to Motion for Summary Judgment, ¶ 18.) Plaintiff’s evidence thus demonstrates that there is a triable issue of fact as to whether the gravel that assertedly caused his accident was a trivial defect. Consequently, the County has failed to negate the dangerous condition element of Plaintiff’s claim. (See Thirion v. Fredrickson & Watson Const. Co. (1961) 193 Cal.App.2d 299, 306 [reversing judgment of nonsuit where jury could have found wet, loose gravel accumulated on a highway was dangerous; distinguishing Wahlen v. Castleman (1954) 129 Cal.App.2d 296 because that case dealt with whether a small amount of gravel was dangerous to pedestrians]; Duff v. A. Teichert & Son, Inc. (1955) 134 Cal.App.2d 28, 32 [trial court could properly find that placing gravel in a gutter during street construction was negligent]; see also Lefebvre v. Workers’ Comp. Appeals Bd. (1980) 106 Cal.App.3d 745, 748 [loose gravel created hazardous condition on employer’s premises for purposes of worker’s compensation claim].)

The County contends that it did not deposit the gravel that allegedly caused Plaintiff’s accident because Plaintiff described the gravel as being new aggregate gravel that was in patches and looked like it had fallen out of a truck, while the County did not transport aggregate gravel during the days leading up to Plaintiff’s accident. (DF, ¶¶ 27, 28, and 30.) The County allows that it was completing a “chip-sealing” project nearby, but states that it did not complete that work on Old Santa Cruz Highway. (DF, ¶ 29.)

In the declaration upon which the County relies for these facts, Roads Superintendent Dan Pendergraft states that chip-sealing involves spraying a film of heated asphalt on the road surface, followed by the placement of aggregate gravel chips, which are compacted into the asphalt and also form the primary component of excess material generated during this process, which is later swept and vacuumed from the surface. (Declaration of Dan Pendergraft ISO County’s Motion, ¶ 7.) While the new aggregate gravel is delivered by a third party, the County and its employees spread the chips and sweep and/or vacuum the excess material into a secure truck. (Id. at ¶¶ 8 and 9.) Mr. Pendergraft states that the nearest road to the site of Plaintiff’s accident that was chip-sealed was Idylwild Drive, approximately 200 feet north of the accident location. (Id. at ¶ 10.) The declaration is silent as to the likelihood of new aggregate gravel or excess material making its way from the site of the chip-sealing to the site of the accident. However, the evidence offered by the County does tend to show that the gravel at issue was not deposited by the County, and the County has met its initial burden of production on this point.

In opposition, Plaintiff submits the deposition testimony of County Road Maintenance Worker Nicomedes Taloma. Mr. Taloma explains that County “sweeper” vehicles transported the excess gravel generated during chip-sealing and dumped it into piles, including a pile located about a half a mile from the intersection of Idylwild and Old Santa Cruz Highway. (PF, ¶ 10; Plaintiff’s Compendium of Exhibits and Evidence, Ex. 10, Deposition of Nicomedes Taloma, pp. 21:4-22:10.) The sweepers passed through this intersection heading down Old Santa Cruz Highway on their way to the pile. (Id.) This was the same intersection Plaintiff passed through just before his accident. (DF, ¶ 4.) The County performed sweeping work on Idylwild Road on the day of Plaintiff’s accident, July 19, and again the following day, July 20. (PF, ¶¶ 7 and 8.) Based on this evidence, it is reasonable to infer that gravel spilled from one of the sweepers at the site of Plaintiff’s accident while it was being transported by the County. Plainitff’s evidence thus creates a triable issue of fact as to whether the gravel on Old Santa Cruz Highway was deposited by the County, and the County has failed to negate this element of Plaintiff’s claim. Consequently, the Court need not address the County’s argument that it lacked notice of the gravel, given that the County would have to show both that it did not deposit the gravel and that it lacked notice to obtain summary judgment. (See Gov. Code, § 835.)

The motion for summary adjudication of the first cause of action for negligence is GRANTED. The County argues that as a public entity, it cannot be held liable on a non-statutory tort claim. Plaintiff does not address this motion in his opposition papers, other than with the conclusory and non-responsive argument that “Defendant’s alternative motions for summary adjudication of issues should be denied.” (Opp. at pp. 2 and 20.) Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).) As discussed above, Government Code section 835 provides the basis for Plaintiff’s claim against the County here, and this statutory claim for a dangerous condition of public property forms the basis of Plaintiff’s second cause of action for premises liability (and, potentially, a third cause of action for governmental entity liability), not his first cause of action for general negligence.

The Court will prepare the order.

The parties are reminded of the trial setting conference scheduled for June 3, 2014 at 11:00 A.M.