17-CIV-05496 BRENDA GUZMAN VS. BELMONT-REDWOOD SHORES SCHOOL DISTRICT, ET AL.

BRENDA GUZMAN BELMONT-REDWOOD SHORES SCHOOL DISTRICT
J. LUIS GARCIA ALAN F. HUNTER

DEFENDANTS MOTION FOR SUMMARY OF JUDGMENT AND ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION TENTATIVE RULING:

The motion for summary judgment by Defendant Belmont-Redwood Shores School District is granted.

Defendant’s objections 1 through 9 are overruled. A. First Cause of Action (Dangerous Condition)

1. The Basketball Pole Was Not a Dangerous Condition.

The first cause of action has no merit. A dangerous condition on public property exists if it poses a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Gov’t Code § 830(a).) Similarly, if a risk of harm is created only when foreseeable users fail to exercise due care, then the property is not dangerous within the meaning of section 830(a).” (Fredette v. City of Long Beach (1986)187 Cal.App.3d 122, 131, 132.)

Plaintiff concedes that a portable basketball stand is not dangerous when used with due care in the foreseeable manner that it will be used, which is for playing basketball. Therefore, a portable basketball stand is not a dangerous condition under the statutory definition. Plaintiff argues only that it became a dangerous condition when the backboard and hoop were removed, thereby transforming it into a “ladder” that could be climbed. The argument lacks merit.

Climbing a fence involves an “obvious” risk of harm from falling. (Biscotti v. Yuba City USD (2007) 158 Cal.App.4th 554, 559.) The Court concludes that climbing a basketball pole involves the same obvious risk of harm that the climber could fall from the pole. “Fences are not meant to be climbed.” (Id.) Likewise, basketball stand poles are not meant to be climbed; they are meant to hold backboards and hoops.

Plaintiff argues that it is foreseeable that a person might climb a basketball pole, but foreseeability is not relevant to this situation. Climbing the pole does not constitute using the pole for its intended purpose. In the context of dangerous conditions, “foreseeability” is merely that it is foreseeable that a boy might fail to exercise due care. If “a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not “dangerous” within the meaning of section 830, subdivision (a).” (Fredette v. City of Long Beach (1986)187 Cal.App.3d 122, 131.)

Plaintiff might argue that the only obvious danger is that a climber might fall after losing his grip, not that the pole would topple over. The distinction is immaterial. In Biscotti, the plaintiff used his bicycle as a step to help him climb up and reach over a fence to pick oranges. The bike slipped, plaintiff fell onto the top of the fence, and was injured by sharp metal prongs that topped the fence. The Court concluded that the risk of harm from climbing a fence (i.e., falling) was obvious. The plaintiff asserted the same argument Plaintiff in the present case, but the Court of Appeal rejected it, holding that “which particular injury he suffered from falling is not particularly relevant to the analysis: he could have broken an arm when he hit the ground, scraped or cut himself on the fence as he fell to the ground, or cut himself on debris when he hit the ground. In all events, the danger of falling and injury was obvious as a matter of law.” (Biscotti v. Yuba City Unified Sch. Dist. (2007) 158 Cal. App. 4th 554, 559.) In short, if the risk of harm is obvious, the specific type of harm from the obvious risk is immaterial.

Plaintiff was not using the basketball pole in the manner it is intended to be used. Plaintiff failed to exercise due care when he climbed the pole. Therefore, as a matter of law, the basketball pole was not a dangerous condition of public property.

2. Defendant Neither Created Nor Had Notice of a Dangerous Condition.

Even if the basketball stand without a backboard or hoop constituted a dangerous condition, Plaintiff’s claim still fails because it is undisputed that Defendant did not create the dangerous condition and had no notice of it. Tamara Moore, the acting principal on the last school day before the incident, had no notice of the missing backboard and hoop. (Decl. of Murray ¶ 4 & 5.) She also saw that the backboard and hoop were present on the “Wednesday or Thursday” before the Sunday incident. (Moore Deposition at 22:21.) She first noticed it missing on the following Monday. (Id. at 22:9.) She has no idea who removed the backboard or hoop. (Id. at 23:16 – 24:2.) If the basketball stand constituted a dangerous condition, it is undisputed that Defendant did not create the condition and had no actual or constructive notice of the condition.

3. Conclusion

The first cause of action has no merit against Defendant School District. (Undisputed Material Facts 5, 21, 25, 27 and evidence cited in support, and cited above.)

B. Second Cause of Action (Product Liability) The second cause of action has no merit. It is undisputed that the District did not manufacture, design or sell the subject basketball stand. (UMF 26; Moore Depo. at 33:20 – 34:1; Decl. of Milliken ¶ 4.) Defendant District was the end-user of the basketball stand. Defendant was not in
October 30, 2018 Law and Motion Calendar PAGE 7 Judge: HONORABLE SUSAN GREENBERG, Department 3 ________________________________________________________________________ the stream of commerce in making or selling the product. Therefore, the cause of action for negligent product liability has no merit. (Undisputed Material Fact 28; Moore Deposition at 33:20 – 34:1; Declaration of Milliken para. 4.)

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.