Judge: Lee W. Tsao, Case: 20STCV25870, Date: 2023-07-20 Tentative Ruling
Case Number: 20STCV25870 Hearing Date: July 20, 2023 Dept: C
KING v. CITY OF
SOUTH GATE
CASE NO.: 20STCV25870
HEARING: 07/20/23
#6
Defendant CITY OF SOUTH GATE’s Motion for Summary Judgment
is DENIED. The alternative Motion for Summary Adjudication is DENIED
in part and GRANTED in part.
Opposing Party to give notice.
This personal injury action was filed by Plaintiff LAYTON
KING (“Plaintiff”) on July 9, 2020. On August 10, 2020, the operative First
Amended Complaint (“FAC”) was filed. The FAC alleges, in pertinent part: “On or
about December 27, 2019, and prior thereto, at the… PREMISES there existed a
dangerous condition(s), including but not limited to a cut-away and unlit fence
line, that created a substantial risk of the type of injury hereinafter alleged
when the property was used with due care in a manner that it was reasonably
foreseeable that it would be used and/or as a result of negligent conduct that
was reasonably foreseeable.” (FAC ¶10.) “On or about December 27, 2019,
PLAINTIFF was riding his road bicycle eastbound along Firestone Blvd. in South
Gate, CA. As PLAINTIFF proceeded with his travel, he began to cross the
bridge/LA River overpass, of which the PREMISES is present, owned, managed,
controlled, and operated by Defendants. At all material times, PLAINTIFF
proceeded along the pathway for pedestrian and bicycle traffic. As PLAINTIFF
proceeded across the pedestrian/bicycle path he, without warning, encountered a
dangerous, defective, and deteriorated condition, including but not limited to
the cut-away and unlit fence line, on the PREMISES. At all material times, the
cut-away and unlit fence existed without signage, lighting, warning,
instruction for alternate path, or safety measure of any kind. The dangerous,
defective, and deteriorated condition suddenly appeared directly in front of
PLAINTIFF< striking him in the face, knocking him off his bicycle, and
causing him to suffer serious injury from which he continues to suffer.” (FAC
¶11.)
The FAC assert the following causes of action: (1) Dangerous
Condition on Public Property; (2) Negligence; (3) Negligent
Hiring/Supervision/Training/Retention.
Defendant CITY OF SOUTH GATE (“City”) moves for summary
judgment or alternatively summary adjudication on the following grounds:
·
There are no genuine issues of material fact
relating to Plaintiff’s first cause of action because the City has met its
burden, and because there was no substantial risk of injury when the roadway on
the Plaintiff chose to ride his bicycle, was used with due care;
·
There are no genuine issues of material fact relating
to Plaintiff’s first cause of action, regardless of any alleged dangerous
conditions because the City is entitled to design immunity pursuant to Gov.
Code §830.6;
·
There are no genuine issues of material fact
relating to Plaintiff’s claim for breach of mandatory duties under Gov. Code
§§835, 840.2, or under South Gate Municipal Code §§5.0.020, 508.030 because no
such mandatory legal duties are owed by the City to Plaintiff; and
·
There are no genuine issues of material fact
related to Plaintiff’s second and third causes of action because Plaintiff
cannot maintain such claims against the City.
First Cause of Action – Dangerous Condition on Public
Property
“A public entity is
liable for injury caused by a dangerous condition of its property if (1) the property
was in a dangerous condition at the time of the injury; (2) the dangerous
condition caused the injury; (3) the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was injured; and (4) that either
(a) a negligent or wrongful act or omission of an employee of the public entity
within the scope of his employment created the condition, or (b) the public
entity had actual or constructive notice of the dangerous condition in time to
have taken measures to protect against the dangerous condition.” (Moncur v.
City of Los Angeles (1977) 68 Cal.App.3d 118, 123; Govt. Code §835.)
A dangerous
condition is “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.” (Gov. Code §830(a).) “A condition is not a dangerous condition if
the trial…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. (Gov. Code §830.2.) Therefore, in order to assert a
“dangerous condition” claim within the meaning of Gov. Code §830, a plaintiff
must show “that the condition of the public property created a substantial risk
when “used with due care” in a foreseeable manner.” (Swaner v. City of Santa
Monica (1984) 150 Cal.App.3d 789, 798.) “[I]f the injury to a plaintiff
could have occurred only by some third party’s negligence, then it must be held
that the plaintiff has failed to sufficiently allege a dangerous condition
because the injury was made possible only by the failure of the third party
user to exercise due care. [Citations.]” (Id. at 801.) A plaintiff can establish that a condition on
the property creates a substantial risk to any foreseeable user of the public
property who uses it with due care irrespective of his personal lack of due
care. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.)
“A condition is not dangerous within the meaning of the statute ‘unless it
creates a hazard to those who foreseeably will use the property… with due care.
Thus, even though it is foreseeable that the persons may use public property
without due care, a public entity may not be held liable for failing to take
precautions to protect such persons.” (Matthews v. City of Cerritos
(1992) 2 Cal.App.4th 1380, 1384.)
Due Care
The City argues that
Plaintiff’s first cause of action fails due to Plaintiff’s lack of “due care”. The
City specifically argues that no reasonable person would enter an area of a
closed roadway/sidewalk, as Plaintiff did. Plaintiff acted without due care by
disregarding the traffic control devices that are designed to alert the general
public that no vehicle access is permitted in an area of a closed-off roadway
(e.g. signs, barriers.)
In Opposition,
Plaintiff argues that whether or not a dangerous condition exits—based upon
Plaintiff’s use of due care or based on the condition itself—is a question of
fact for the jury.
“Dangerous
condition” means a condition of property that creates 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. (See Gov. Code §830(a).) As to the
kind of “due care” required, there is no requirement that the plaintiff plead
or prove that at the time of the injury he or she was actually using the
property with due care. So long as a plaintiff can establish that a condition
of the property creates a substantial risk to any foreseeable user of the
public property who uses it with due care, he or she has successfully alleged
or shown the existence of a dangerous condition regardless of his or her
personal lack of due care. (See Alexander v. State of California ex. rel. Dept.
of Transportation (1984) 159 Cal.App.3d 890, 899.)
The City proffers
the following evidence in support of its Motion:
·
“Plaintiff
rode the bicycle on or near the entrance of a bridge on Firestone Boulevard. It
was obvious to Plaintiff that the bridge was under construction.” (SS No. 10.)
·
“As he
came to the entrance to the bridge, Plaintiff did not see any signs posted
indicating that the sidewalk was closed. Plaintiff did not see any signs at
all. He did however see construction barriers which he had to go around.” (SS
No. 11.)
·
“Plaintiff
admitted that he left the sidewalk and rode his bike in the shoulder area
towards the opening.” (SS No. 12.)
·
“Based
upon photographs taken by Plaintiff a few days after the incident, the metal
fence bar which he struck while riding his bicycle was in the barricaded area
of the roadway.” (SS No. 13.)
·
“The
closed areas of pavement for the future fourth eastbound lane of the roadway on
Firestone Boulevard was not, nor to date has ever been opened to the public use
as construction involving the re-vamped onramp to the southbound I-710 freeway
has yet to commence. The areas of pavement for the fourth eastbound lane have
been closed, and remains closed, to all vehicular traffic by design through the
use of traffic control devices including K-rails, delineators and crash
cushions as reflected in the Modified Traffic Control Plan as amended and approved
by the City. The sidewalk which runs adjacent to the closed pavement area of
the fourth eastbound lane of the roadway remains closed.” (SS No. 14.)
·
“The
sidewalk which runs adjacent to the… closed pavement area of the fourth
eastbound lane of the roadway remains closed.” (SS No. 15.)
·
“At the
time of the alleged incident, Plaintiff was riding his bicycle on a portion of
the future fourth lane roadway of eastbound Firestone Boulevard that had never
been opened by the City for public use of any kind. Vehicle traffic was
prohibited at the location of the alleged incident through the use of traffic
control devices such as K-Rails, delineators and crash cushions which are
specifically authorized by the California Manual on Uniform Traffic Control
Devices (‘MUCTD’) issued by the California Department of Transportation
(‘Caltrans’).” (SS No. 16.)
Plaintiff proffers
the following evidence in Opposition:
·
“Plaintiff
testified as follows: ‘there was most obviously construction happening on the
bridge and it was brand new. It looked like it had just been completed
and opened for pedestrians bicycling.’” (RDSS No 10.)
·
“With
respect to the construction barriers, Plaintiff stated that the barriers were
barrels that were intended to ‘usher’ the vehicles in the lanes of travel.
Rather than ride on the road with the construction barrels, he rode on the
sidewalk, which Plaintiff stated was ‘completely open’. He also stated that it
looked like the sidewalk ‘had just been finished for the purpose that I used it
for.’” (RDSS No. 11.)
·
There is
a factual dispute as to whether the subject sidewalk was “open”. (RDSS No.
15-16.)
·
“The
sidewalk was completely open at the time of the subject incident, and appeared
to be completed and open for both pedestrians and cyclists.” (Plaintiff SS NO.
4.)
·
“The
K-rails did not close off the sidewalk. The only way to close the sidewalk was
the required but missing signage.” (Plaintiff SS No. 5.)
·
“The
professional engineer assigned to the project did not know if the K-rails were
even intended to close off access to the sidewalk that Plaintiff utilized at
the time of the subject incident.” (Plaintiff SS No. 6.)
·
“Vandalism
was a daily problem at the former construction site in question.” (Plaintiff SS
No. 7.)
·
“90% of
the signs at the construction site were either damage[d], vandalized, removed
or stolen on a daily basis…. [I¶] The kind of signs that were destroyed on a
daily basis included signs noting ‘Detour’, ‘Road Closed’ and ‘Sidewalk
Closed’.” (Plaintiff SS Nos. 8-9.)
·
“In
addition to the frequent acts of vandalism to various traffic control devices,
Saikaly had actual knowledge of the chain-link fence being cut, moved, and
pushed over on several different occasions.” (Plaintiff SS No. 25.)
·
“The
fence in question—the same fence that injured plaintiff—should have been
repaired for safety purposes.” (Plaintiff SS No. 26.)
·
“The
K-Rails that were at the scene abutted the sidewalk, did not specifically close
off travel on the sidewalk, and in fact could not even confirm that the K-rails
were ever even intended to close off travel on the sidewalk.” (Plaintiff SS No.
27.)
·
“For at
least ten months prior to the subject incident, the ‘Sidewalk Closed’ sign that
was supposed to be present as mandated by the relevant Traffic Control Plans,
was not present. Moreover, there is no documentation that the sign was ever
replaced.” (Plaintiff SS No. 28.)
Though an argument
can be made as to whether some negligence should be apportioned to Plaintiff,
this issue alone would not be dispositive of whether the condition of the
public property at issue was dangerous. Construing the evidence in a light most
favorable to Plaintiff/the opposing party, the Court finds that Plaintiff has
proffered sufficient facts to establish triable issues as to whether Plaintiff
acted with or without “due care”. As shown above, Plaintiff submits evidence to
show that there may have not been any signs present at the time of the Subject
Incident, that any signs may have been vandalized or removed prior to the
Subject Incident, and that any barricades/fences were cut away or moved prior
to the Subject Incident—which could all potentially negate Plaintiff’s ability
to adhere to traffic control signs (CVC 21461(a).)
Design Immunity
“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 preventative measures. [Citations Omitted.]. [¶] However,
a public entity may avoid such liability by raising the affirmative defense of design
immunity. [Citation Omitted.]. A public entity claiming design immunity
must establish three elements: (1) a causal relationship between the plan or
design and the accident; (2) discretionary approval of the plan or design prior
to construction; and (3) substantial evidence supporting the reasonableness of
the plan or design. [Citations Omitted.]” (Cornette v. Dept. of Transp.
(2001) 26 Cal.4th 63, 66.)
Causal
Relationship
“Causal relationship is proved by evidence the
injury-producing feature was actually a part of the plan approved by the
government entity: Design immunity is intended to immunize only those design
choices which have been made. A case in point is Cameron v. State of
California (1972) 7 Cal.3d 318, 326… where superelevation around a curve
constituted the dangerous condition causing plaintiffs to lose control of their
car. The plans showed many aspects of the roadway, but there was no evidence
‘the superelevation which was actually constructed on the curve… was the result
of or conformed to a design approved by the public entity vested with
discretionary authority.’ [Citation.] The state thus failed to prove the
causation element—that a discretionary decision was actually made regarding the
dangerous condition which caused plaintiffs’ accident.” (Higgins v. State of
Calf. (1997) 54 Cal.App.4th 177, 185-186.)
As indicated above, Plaintiff has raised triable issues as
to whether the conditions of the Subject Premises on the date and time of the
Subject Incident were in compliance with the City’s Traffic Control Plan and
any modifications thereto.
The Court finds that the City is unable to establish the
first element of design immunity, as a matter of law.
Summary adjudication of the first cause of action is DENIED.
Breach of Mandatory Duties Claim and Second and Third Causes
of Action – Negligence and Negligent Hiring/Training/Supervision/Retention
In Opposition, Plaintiff states: “After careful
consideration of the notes and decisions put forth in Defendants’ moving papers
and a studied analysis of the facts at hand, Plaintiff concurs with the
Defendants herein regarding any cause(s) of action based solely upon a breach
of a mandatory/statutory[y] duty and also for any cause(s) of action regarding
negligent hiring/supervision. As such, Plaintiff puts forth no opposition to
the summary dismissal of those limited causes of action.” (Opp. 11:5-9.)
Summary adjudication of the second and third causes of
action is GRANTED. Summary adjudication of Plaintiff’s Breach of Mandatory
Duties claim is also GRANTED. Summary adjudication may lie to an issue of duty.
(CCP §437c(f)(1).)
Summary judgment is DENIED.
The City’s Objections to Plaintiff’s Additional Facts in
Response to the City’s Motion for Summary Judgement
Objections to the Separate Statement are somewhat misplaced,
as the Statement itself is not the evidence, nor is Counsel’s characterization
of the underlying evidence cited therein.