Case Name: Cruz Rodas, et al. v. State of California, et al.
Case No.: 17CV313422

I. Factual and Procedural Background

This is a wrongful death action filed by plaintiffs Cruz Vidal Arevalo Rodas and Gladys H. Ascencio Carpio (collectively “Plaintiffs”) against defendant State of California, California Department of Public Transportation (“Defendant”).

As alleged in the Complaint, on the early morning of January 9, 2014, Plaintiffs’ 17-year-old son, Kevin Josue Rodas Carpio (“Carpio”) was walking on the sidewalk adjacent to the northbound portion of Lawrence Expressway in Sunnyvale, CA. (Complaint, ¶ 2.) At the intersection of northbound Lawrence Expressway and the freeway onramp to southbound Interstate Route 101, there is a pedestrian crosswalk. (Id. at ¶¶ 2-3.) Carpio was in the crosswalk when a vehicle driven by Patrick Aubin (“Aubin”) entered the freeway onramp and struck him. (Id. at ¶ 4.) As a result of the accident, Carpio suffered catastrophic injuries which left him in a persistent vegetative state. (Id. at ¶ 6.) On January 23, 2017, Carpio passed away. (Id. at ¶ 7.) As Carpio had no children or spouse, his parents, Plaintiffs, are the surviving heirs. (Id. at ¶ 8.)

Plaintiffs’ Complaint alleges a cause of action for dangerous condition of public property under Government Code section 835.

Currently before the Court is Defendant’s motion for summary judgment. Plaintiffs oppose the motion and submit written evidentiary objections in support.

II. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) To demonstrate an action has no merit, a defendant moving for summary judgment must show one or more of the elements of a cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The 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 judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Merits of the Motion

The Complaint alleges a single cause of action under Government Code section 835 (“Section 835”), which provides the basis for liability against a public entity for an injury caused by a dangerous condition of its property. To establish liability under this statute, the following 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 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 the entity had actual or constructive notice of the condition a sufficient time prior to the injury to have taken measures to protect against the injury. (Gov. Code, § 835.)

Defendant challenges the elements of the existence of a dangerous condition; a causal connection between the condition and Carpio’s injury; and the creation of the condition by an employee’s negligent act or omission or its actual or constructive notice of the condition. It also asserts the defense of design immunity under Government Code section 830.6. In opposition, Plaintiffs argue Defendant fails to satisfy its initial burden in establishing the lack of a dangerous condition, and otherwise assert they establish triable issues of material fact.

A. Existence of a Dangerous Condition

Government Code section 830, subdivision (a) defines a dangerous condition 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.” 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, internal citations and quotation marks omitted; Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1054; see also Gov. Code, § 830.2.)

Defendant argues Plaintiffs cannot establish the existence of a dangerous condition because the “most important factor” in determining if a property presents a substantial risk of injury is evidence of prior substantially similar accidents and, here, there is no indication any such accidents occurred. (Mem. of Pts. and Auth. at p. 9:11-12.) In support, it submits a declaration by Nevin Q. Sams (“Sams”), a consulting engineer, who states that, in the 12 years preceding Carpio’s accident, there were no pedestrian-related accidents at the subject intersection despite the fact 46 million vehicles drove over the crosswalk and an estimated 122,948 pedestrians used it during this time period. (Def. Sep. Stmt., Nos. 12-14.) Based on this evidence, Defendant argues the accident site cannot reasonably be considered to have been in a dangerous condition. Defendant’s argument is not well-taken.

Though it is true that the absence of other similar accidents is relevant to the determination of whether a condition is dangerous (see, e.g., Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 482, 220; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243), such evidence is “not dispositive on the issue of dangerousness.” (Salas v. Dep’t of Transportation (2011) 198 Cal.App.4th 1058, 1071; see also Lane v. Sacramento (2010) 183 Cal.App.4th 1337, 1345.) Rather, the history of prior accidents is usually considered in conjunction with other evidence, including that related to physical characteristics of the property (e.g. markings, signage, sightlines, lighting, and road grade) tending to show whether the condition at issue was dangerous. (See, e.g., Mixon v. Pac. Gas & Elec. Co. (2012) 207 Cal.App.4th 124, 132-38; Salas, supra, 198 Cal.App.4th at 1071; Callahan v. City & Cty. of San Francisco (1971) 15 Cal.App.3d 374, 377-79; McKray v. State of California (1977) 74 Cal.App.3d 59, 63.)

Defendant cites no authority to the contrary or in support of its bald assertion that the history of prior accidents is the “most important factor” in determining if a condition of property is dangerous. As such, its position is unsubstantiated. Aside from the absence of accidents at the subject crosswalk, it does not discuss the physical characteristics of the property or present any other evidence demonstrating the crosswalk traversing the freeway onramp was not a dangerous condition. Thus, Defendant fails to satisfy its initial burden of demonstrating Plaintiffs cannot establish the existence of a dangerous condition.

Even if Defendant had met its burden, Plaintiffs submit evidence sufficient to demonstrate a triable issue of material fact exists as to the dangerousness of the crosswalk. Among other things, they present photographs taken of the intersection by Aubin one day after the accident, which show a crosswalk with severely deteriorating paint traversing multiple lanes of freeway onramp traffic without the protection of stop signs or traffic signals (Likar Decl., Exh. A), and discovery responses from Defendant indicating the last time the crosswalk was painted was in 2000, nearly 15 years before the accident (Id., Exh. M). They also submit an expert declaration by Dale R. Dunlap (“Dunlap”), a California registered engineer, in which he assesses the accident site and concludes the following factors led to the creation of a dangerous condition: (1) the extremely deteriorated condition of the crosswalk paint, which caused it to be much less visible to approaching drivers while lulling pedestrians into a false sense of security because it was more prominent to them; (2) the location of the crosswalk behind a vertical crest which would obstruct a driver’s vision of it; and (3) Defendant’s failure to maintain shrubbery and vegetation on the side of the onramp such that drivers did not have a clear view of the crosswalk, warning signs near the crosswalk, and pedestrians crossing the onramp. (Dunlap Decl., ¶ 12, 15, 36; Exh. K.) Taken together, this evidence is sufficient to raise a triable issue of material fact regarding the dangerousness of the crosswalk.

Thus, Defendant’s motion for summary judgment cannot be granted on the basis no dangerous condition existed.

B. Causation

As stated, to establish liability under Section 835, a plaintiff must establish the injury that occurred was proximately caused by the dangerous condition. (Gov. Code, § 835; Constance B. v. State of California (1985) 178 Cal.App.3d 200, 208.) To establish proximate cause, “[a] plaintiff must show that the dangerous condition in question was a substantial factor in causing his or her harm.” (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 8-9.) This issue is usually a question of fact but may be determined as a matter of law when the facts presented permit only one reasonable conclusion. (Id., citing Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.)

Defendant first asserts Plaintiffs cannot demonstrate a causal relationship existed between the alleged dangerous condition and the accident because Aubin had driven through this location numerous times before and was aware of the crosswalk; it is purely speculative whether more adequate pedestrian signage would have caused Aubin to notice Carpio in the roadway; Aubin had a sight distance of at least 380 feet to the location where Carpio was crossing; and there is no evidence trees, landscaping, or the crest before the crosswalk obscured pedestrians but, even if there was, those conditions are irrelevant because “Aubin was intimately familiar with the intersection having traveled so [sic] it for practically his entire life[.]” (Mem. of Pts. and Auth. at p. 5:4-7:17.)

In support, Defendant submits deposition testimony by Aubin in which he stated he had driven through this location approximately five times a week since middle school, had almost always taken this on-ramp on his way home from the job he started fifteen months before the accident, and was aware there was a crosswalk there. (Def. Sep. Stmt., Nos. 5-6.) It also presents evidence Aubin was driving approximately 25-30 miles per hour when approaching the intersection and was looking directly ahead but did not see Carpio until the point of impact. (Aubin. Depo. at 58:1-16, 74:6-8.) Finally, Defendant submits Sams’ declaration in which he states the stopping sight distance to the location where Carpio was crossing was 380 feet. (Id., Fact No. 27.) The Court is not persuaded the evidence presented demonstrates there was no causal relationship between the dangerous condition of the crosswalk and the accident.

Here, Plaintiffs’ claim for dangerous condition of public property is predicated on numerous factors they assert caused Carpio’s injuries, including the dangerous placement of the crosswalk in an area where drivers would not anticipate pedestrians crossing; the placement of the crosswalk at a bend in the road that made it difficult for drivers to perceive pedestrians and for pedestrians to see oncoming motorists; the ambiguous placement of roadway markings that confused drivers about the specific location of the crosswalk; the failure to place proper warnings, signs, and traffic control devices to alert drivers to the presence of a pedestrian crosswalk; the failure to provide higher visibility or “active” warning devices to adequately warn of pedestrian foot traffic; and the placement of and failure to maintain surrounding bushes and trees that obscured pedestrians from a driver’s view. (Complaint ¶ 19.) But the evidence presented by Defendant regarding Aubin’s awareness of the crosswalk only addresses Plaintiffs’ allegation the accident was caused by his lack of anticipation of a crosswalk at the location and does not otherwise demonstrate the accident could not have been caused by other factors, e.g., his inability to see Carpio due to the bend in the road or the obstruction of his view by unmaintained and poorly placed bushes and trees notwithstanding his general knowledge there was a crosswalk in the area. The evidence regarding Aubin’s purported 380 feet of stopping sight distance does not compel a contrary conclusion as it does not establish obstructions by the trees, bushes or the bend in the road could not have been a substantial factor in causing Carpio’s injuries.

Defendant next asserts Plaintiffs cannot rely on their allegations that the failure to provide traffic control devices or properly light the intersection caused the accident because, under Government Code section 830.4, it is immune from liability arising from the absence of traffic control devices. First, this argument is flawed for the same reason articulated above in that it only addresses one of the factors alleged to have caused the accident. Second, this contention is misplaced because it does not relate to the issue of causation.

For the reasons stated, Defendant fails to meet its initial burden of demonstrating Plaintiffs cannot establish a causal relation between the dangerous condition of the crosswalk area and Carpio’s injuries.

C. Creation or Notice of Dangerous Condition

One of the elements necessary to establish liability of a public entity under Section 835 is that “[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 “the public entity had actual or constructive notice of the dangerous condition…a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subds. (a)-(b).) “In order to recover under Government Code section 835, it is not necessary for plaintiff to prove a negligent act and notice; either negligence or notice will suffice.” (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 693.)

Here, Plaintiffs allege both that a negligent act of Defendant’s employees created the dangerous condition and that Defendant had constructive notice of the condition. (Complaint, ¶¶ 22-24.)

Defendant first asserts no negligent or wrongful act occurred. To prove the same, it submits Sam’s declaration in which he states the design of the crosswalk met or exceeded the state standards in effect at the time the project was approved, and the state’s engineer exercised appropriate discretionary authority in approving the design. (See Def. Sep. Stmt., Nos. 15-33.) It also references the previously discussed evidence regarding the absence of reported pedestrian accidents at the subject crosswalk in the 12-year period preceding Carpio’s accident, which it contends leads to the conclusion no evidence exists of its employees creating a dangerous condition. (Id. at No. 14.) This argument is problematic.

Defendant provides no legal authority supporting the proposition a crosswalk design’s conformity with state standards, a state engineer’s discretionary approval of that design, or an absence of other pedestrian accidents at the subject location compels the conclusion no negligent or wrongful act or omission occurred. In fact, it does not even discuss the applicable legal standards for determining if a public entity’s actions or omissions were negligent or wrongful. As such, its position is unsubstantiated. (See Cal. Rules of Court, rule 3.1113(b) [supporting memorandum must include a discussion of legal authority in support of the position advanced]; People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without citation to authority may be disregarded].)

Defendant’s argument regarding the approval of the crosswalk design or its conformity with state standards is flawed for the additional reason Plaintiffs allege failures beyond those relating to the original design of the intersection. Specifically, as previously mentioned, Plaintiffs also plead Defendant failed to properly maintain the shrubbery around the crosswalk which obstructed motorists’ views of pedestrians crossing the roadway. (See Complaint, ¶ 19.) Thus, Defendant’s assertion fails to address the full scope of acts or omissions Plaintiffs claim created the dangerous condition. (See Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717 [a defendant has the burden to show it is entitled to judgment with respect to all bases of liability asserted by the plaintiffs].)

Defendant otherwise contends it had no notice of the dangerous condition, as evidenced by the fact there were no accidents reported at this location in the 12-year period before the accident (Def. Sep. Stmt., No. 14).

A public entity has actual notice of a dangerous condition within the meaning of the law if it actually knew of the existence of the condition and knew or should have known of its dangerous character. (Gov. Code, § 835.2, subd. (a).) As for constructive notice, it exists where a plaintiff establishes a “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).)

Here, the evidence presented by Defendant is sufficient to show it did not have actual notice but does not demonstrate it lacked constructive notice of the alleged condition. Defendant does not address how long the alleged dangerous condition was present before Carpio’s accident or whether the condition was of such an obvious nature that it should have been discovered in the exercise of due care. Therefore, Defendant fails to demonstrate that it lacked constructive notice of the condition.

As such, Defendant fails to carry its initial burden of demonstrating Plaintiffs cannot establish a negligent act or omission by one of its employees, or its actual or constructive notice of the dangerous condition.

D. Design Immunity

Government Code section 830.6 (“Section 830.6”) provides a design immunity defense that precludes a public entity from being liable for a dangerous condition of its property. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1251.) “The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.” (Cornette v. Dep’t of Transp. (2001) 26 Cal.4th 63, 69.) To establish such a defense, a public entity must prove three elements: “(1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Alvis v. Cty. of Ventura (2009) 178 Cal.App.4th 536, 550, discussing Gov. Code, § 830.6.)

The Court finds Defendant meets its initial burden of demonstrating the second and third elements of the design immunity defense but not the first.

With respect to the second element of discretionary approval of a plan prior to construction, Defendant submits the “as built” version of the plans for this intersection, which include the design of roadway features such as the lane configurations, the subject crosswalk, and the connecting sidewalks. (SSUF Nos. 15-20.) These plans were prepared and signed by a civil engineer in Defendant’s employ. (Sams Decl., Exh. J.) This is sufficient. Courts have held that evidence of the review and approval of design plans by an engineer employed by the public entity is sufficient to satisfy the second element of discretionary approval of a plan prior to construction. (Laabs, supra, 163 Cal.App.4th at 1263; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)

As for the third element, Defendant presents evidence that the curve radius of the ramp, the design speed, the stopping sight distances, and the lack of inclusion of warning devices such as pedestrian signs or flashing beacons at this location are all consistent with the California Department of Transportation Traffic Manual in effect at the time of the construction. (SSUF Nos. 18-23.) It also references Sam’s declaration in which he opines the layout and location of the crosswalk at issue was reasonable. (Sams Decl., ¶ 19.) This showing is adequate. Courts have held that an expert opinion as to the reasonableness of the design or evidence of relevant design standards can constitute substantial evidence supporting the reasonableness of a design. (See, e.g., Laabs, supra, 163 Cal.App.4th at 1264, citing Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1118; Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 59.)

With respect to the first element of causal relationship between the design plan and the accident, Defendant cites the allegations of the Complaint to demonstrate that Carpio’s injuries occurred as a result of the design of the area in which the crosswalk was located. Although a defendant may rely on the allegations of the complaint to establish causation for purposes of the design immunity defense (Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1114), Defendant’s argument is flawed because Plaintiffs’ claim is not predicated solely on defects in the design of the roadway. Rather, it additionally asserts his injuries were caused by Defendant’s failure to maintain the condition of the crosswalk, which resulted in it being nearly imperceptible to motorists, and to maintain the surrounding shrubbery, which obscured drivers’ views of pedestrians. (See Complaint, ¶ 19; see also Dunlap Decl., ¶¶ 12, 21-23, 25-26, 28, 36-37.)

“It is a longstanding proposition articulated in numerous cases that by force of its very terms design immunity is limited to a design-caused accident. Stated otherwise, it does not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident.” (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575, emphasis added.) Thus, while a public entity may be immune from liability for injuries caused by a dangerous condition created as a result of a plan or design which conferred immunity under Section 830.6, it may nonetheless be liable for negligent actions that constitute a separate, concurring cause of the accident.” (Cameron v. State of California (1972) 7 Cal.3d 318, 329.)

Here, Plaintiffs allege negligent actions by Defendant that caused the accident. Thus, while Defendant may have established a prima facie case for design immunity to the extent Carpio’s injuries were caused by defects in the design of the roadway, they have not done so relative to liability arising out of their negligence in maintaining the area around the crosswalk.

Defendant advances an additional argument that Plaintiffs cannot demonstrate they lost their design immunity. The Court need not reach this contention as Defendant did not establish in the first instance that the defense applies.

E. Conclusion

For the reasons stated, Defendant’s motion for summary judgment is DENIED.