Judge: Serena R. Murillo, Case: 21STCV201111, Date: 2023-05-08 Tentative Ruling
Case Number: 21STCV201111 Hearing Date: May 8, 2023 Dept: 29
TENTATIVE
Defendant
City of Los Angeles’ Motion for Summary Judgment is DENIED.
Legal Standard
The purpose of a motion for summary judgment or summary
adjudication “is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.”
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.) “Code of
Civil Procedure section 437c, subdivision (c), requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, 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.” (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is
always on the moving party to make a prima facia showing that there are no
triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1519.) A defendant
moving for summary judgment or summary adjudication “has met his or her burden
of showing that a cause of action has no merit if the party has shown that one
or more elements of the cause of action . . . cannot be established, or that
there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that
burden, the burden shifts to the plaintiff . . . to show that a triable issue
of one or more material facts exists as to the cause of action or a defense
thereto.” (Id.) “If the plaintiff
cannot do so, summary judgment should be granted.” (Avivi
v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the
court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most
favorable to the party opposing summary judgment.” (Avivi,
159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)
Discussion
The facts of this care are as
follows: Plaintiff is a travelling notary, and on September 16, 2020, she had a
9:00 PM appointment for her notary services at 8142 Whitsett Avenue, Los
Angeles. (Separate Statement of Undisputed Material Facts (“UMF”) 1.) At 9:00
PM, Plaintiff parked next to the curb in front of 8142 Whitsett Avenue, exited
her vehicle, saw a large tree in the parkway, and some of the tree’s roots on
the left side of the tree trunk. (UMF 2.) In front of 8142 Whitsett Avenue,
there is an improved concrete path which traverses a parkway, which is the area
of the street between the back of the curb and the sidewalk that is typically
planted or landscaped. (UMF 3.) Plaintiff stepped up onto the curb on the right
side of the tree trunk, saw someone wave from the front porch of 8142 Whitsett
Avenue, and began walking across the parkway. (UMF 4.) While walking in the
parkway, Plaintiff tripped on an exposed tree root in the parkway and fell. (UMF 5.)
I.
Existence of
Dangerous Condition
Defendant moves
for summary judgment, arguing that Plaintiff’s cause of action for dangerous
condition of public property fails because a tree
root in a parkway and darkness are not dangerous conditions as a matter of law.
Government
Code¿section¿835 states:¿“Except as provided by statute, a public entity is
liable for injury caused by a dangerous condition of its property if the
plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk
of the kind of injury which was incurred, and either:¿
(a) 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¿¿
(b) The public entity had actual or
constructive notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition.”¿¿
“A
condition is dangerous if it creates a substantial risk of injury when
foreseeable users use the property with due care.” (Huffman v. City of
Poway (2000) 84 Cal.App.4th 975, 991 (citing Government Code section
830(a)).) “A condition is not dangerous if the risk of injury created by
the condition is so minor, trivial or insignificant that it arises only when
foreseeable users do not use due care.” (Id. (citing Government
Code section 830.2).) “Whether a given set of facts and circumstances
creates a dangerous condition is usually a question of fact.” (Id.)
“The issue of a dangerous condition becomes a question of law only where
reasonable minds can come to only one conclusion.” (Id.)
“Whether the condition of property posed a substantial risk of injury to
foreseeable users exercising due care is an objective standard and is measured
by the risk posed to an ordinary foreseeable user.” (Id. at
992.)
Defendant argues that the City
should not be liable for parkway conditions which are naturally occurring and
common, such as an exposed tree root in the parkway because “no reasonable
person would conclude that the [tree root in the parkway] created a substantial
risk of injury when [the parkway] was used with due care in a manner in which
it was reasonably foreseeable that it would be used.” (Gov. Code § 830.2.)
Plaintiff tripped and fell on a tree root in the parkway in the nighttime. Both
of these conditions, Defendant argues, – the tree root in the parkway growing
from the large Indian laurel fig tree and darkness – are naturally occurring
conditions, not dangerous conditions, and the City should have no liability as
a matter of law.
A.
The
City’s Duty as it Relates to Parkways
Defendant continues that sidewalks
and parkways are not the same, and have different purposes. Because sidewalks
and parkways are not the same, the City’s responsibility for sidewalks in the
City’s right-of-way is not analogous to its duty of care with regard to
parkways. Sidewalks are walkways and are generally made of cement, and when
necessary can be patched or otherwise repaired to address conditions which may
be deemed “dangerous conditions” to pedestrians. Parkways are not intended to
be walkways, are composed of dirt and earth and contain trees, tree roots,
vegetation, utility vaults, water lines and sprinkler heads, and countless
other conditions that are not generally present on sidewalk. Moreover, whereas
sidewalk conditions such as an uplift between adjacent sidewalk sections can be
repaired, there is no “repair” for parkway conditions like exposed tree roots.
However, Defendant has provided no
authority for its proposition that parkways and sidewalks have different
standards, and that it should not have any liability as a matter of law.
Moreover, in opposition Plaintiff provides authority which undermines
Defendant’s claims.
The Court in Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th
559, FN 2, when faced with an argument that a pothole in a street and
conditions on a sidewalk have different standards, stated that the question is
not the location of the defect, per se, but whether it may reasonably be
anticipated pedestrians will use the surface as a public walkway. (Stathoulis
v. City of Montebello (2008) 164 Cal. App. 4th 559, FN 2.)
As such, here too, the question is not whether the location of
the defect but whether it may be reasonably anticipated pedestrians will use
the surface as a public walkway. This question is addressed more fully below in
section II.
B.
Darkness
Defendant argues the City has no
duty to light its streets, even when it undertakes to do so. (Plattner v.
City of Riverside (1999) 69 Cal.App.4th 1441.) “Darkness is a naturally
occurring condition that the city is under no duty to eliminate.” (Plattner,
supra, 69 Cal.App.4th at 1445.)
Plaintiff argues however that she is not asserting that the City
was negligent for inadequate lighting. Plaintiff is asserting the City was
negligent for failing to remedy the subject tree root in the sunken parkway
which created a substantial trip hazard and risk of injury to pedestrians using
the parkway as a public walkway from the street to the sidewalk. In Stathoulis,
the Court instructed that defects can be rendered more dangerous if
the accident occurred at night. The Court held as follows:
The decision whether a crack or other defect in a walkway is
dangerous does not rest entirely on the size of the depression. ... “Instead,
the court should determine whether there existed any circumstances
surrounding the accident which might have rendered the defect more dangerous than
its mere abstract depth would indicate.” [Citations] “Aside from the size of
the defect, the court should consider whether the walkway had any broken pieces
or jagged edges and other conditions of the walkway surrounding the defect,
such as whether there was debris, grease or water concealing the defect, as
well as whether the accident occurred at night in an unlighted area or some
other condition obstructed a pedestrian's view of the defect.” [Citation]
The court should also consider ... a plaintiff's knowledge of the
conditions in the area, whether the defect has caused other accidents, and
whether circumstances might either have aggravated or mitigated the risk of
injury. [Citation].”
(Id., at 566-567)
The Court agrees with Plaintiff. This is
not simply a claim for inadequate lighting, but rather, as the complaint alleges,
Plaintiff tripped and fell on an uneven pavement and loose
overgrown exposed tree roots on the sidewalk/parkway on Whitsett Avenue.
As a result, Defendant has not met its
initial burden on summary judgment to show that there are no triable issues as to whether Plaintiff can
show that a tree root in a parkway and darkness are dangerous conditions.
II.
Did
the Tree Root Create a Substantial Risk of Injury to Those Who Foreseeably Use
the Property with Due Care?
Defendant
also moves for summary judgment on the ground that the tree root in the parkway
did not constitute a
dangerous condition because it did not pose a substantial risk of injury
when used with due care in a manner in which it is reasonably
foreseeable that it will be used.
The term
“dangerous condition” means 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).)¿ “The
existence of a dangerous condition ordinarily is a question of fact, but the
issue may be resolved as a matter of law if reasonable minds can come to only
one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984)
36 Cal.3d 799, 810.)¿¿“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 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.)¿ “The condition of the property
involved should create a ‘substantial risk’ of injury, for an undue burden
would be placed upon public entities if they were responsible for the repair of
all conditions creating any possibility of injury however remote that
possibility might be.”¿¿(Fredette¿v. City of Long Beach¿(1986) 187
Cal.App.3d 122, 130, fn.5.)¿
Defendant argues that with respect
to Plaintiff’s accident at 9 PM on September 16, 2020, the undisputed facts
establish that Plaintiff was not using due care at the time of her fall
because: Plaintiff saw the tree and observed its root system to the left of the
tree trunk (as one faces the front of 8142 Whitsett Ave.), but did not check to
see if there were similar exposed tree roots to the right of the tree trunk,
which is the path of travel she chose; there was an available, alternative safe
path of travel across the parkway via an improved concrete path directly in
front of 8142 Whitsett Avenue that did not expose Plaintiff (or anyone else) to
the potential of tripping and falling on a tree root in the parkway; although
it was dark, and Plaintiff was unfamiliar with the area, she chose not to use
an available light source – i.e., light from her cell telephone – to navigate
across the parkway. To further demonstrate that Plaintiff did not use due care
when she traversed the parkway at night next to a tree she knew had exposed
roots, there is no evidence of any other person tripping over the exposed roots
in the parkway before or after Plaintiff’s incident. (UMF 13.)
However, first,
reasonably foreseeable use with due care, as an element in defining whether
property is in a dangerous condition, refers to use by the public generally,
not the contributory negligence of the particular plaintiff who comes before
the court; the particular plaintiff's contributory negligence is a matter
of defense. (Sambrano v. City of San Diego, 94 Cal. App. 4th at 239.)
“That the evidence the city offered was sufficient to demonstrate, as a matter
of law, that [plaintiff] was not using due care when his car struck the
[alleged dangerous condition of public property], that would not justify
judgment in the city’s favor. When a plaintiff seeks to recover for injury
caused by a dangerous condition of public property, ‘The Tort Claims Act does
not require [the] plaintiff to prove that the property was actually being used
with due care at the time of the injury, either by himself or by a third party
(e.g., driver of automobile in which plaintiff was riding as a passenger).’
(Alexander v. State of California ex rel. Dept. of Transportation (1984) 159
Cal.App.3d 890, 899, 205.) Thus, proof that [plaintiff] was not using due care
is insufficient to show that plaintiffs cannot establish their claims in this
case.” (Lane v. City of Sacramento, 183 Cal.App.4th at 1347.)
Moreover, with regard to
Defendant’s evidence that there have been no prior accidents at that location, in Lane v. City
of Sacramento (2010) 183 Cal.App.4th 1337, 1346 (Lane), the trial
court concluded that the city's evidence regarding the lack of other
claims relating to the alleged dangerous condition was “sufficient to meet the City's initial
burden of showing that the [alleged defect] was not in a dangerous condition,”
and ultimately granted summary judgment to the City. The court of appeal reversed,
and held this evidence was insufficient to show that the alleged dangerous
condition did not create a substantial risk of injury. (Id.) The court
stated:
“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 [inquiry into the question of
dangerousness involves consideration of such matters as whether the condition
has been the cause of other accidents]; Sambrano v. City of San Diego (2001)
94 Cal.App.4th 225, 243 [evidence of the lack of prior accidents is relevant to
the definition of a dangerous condition under section 830, subdivision (a)].) But the city
cites no authority for the proposition that the absence of other similar
accidents is dispositive of whether a condition is dangerous, or that it
compels a finding of nondangerousness absent other
evidence.”
(Lane v. City
of Sacramento, 183 Cal.App.4th at 1346.)
In accordance with Lane, the Court
finds that it is not determinative that there were no prior accidents relating
to the driveway prior to the accident. While this fact is relevant to a larger
inquiry into the dangerous of the condition, this fact alone is not enough to make a determination that the condition was not dangerous as a matter of law.
As a result, Defendant has not met its burden
on summary judgment to show that no triable issues exist as to Plaintiff’s
claim for dangerous condition of public property as it has not presented
evidence to show that the tree root in the parkway is not a dangerous condition
when the parkway is used with due care in a reasonably foreseeable manner.
The only evidence as to this point would be the lack of accidents, but as
stated above, this alone is not sufficient. Moreover, even if Defendant had met
its burden, Plaintiff has provided more than sufficient evidence to show there
are triable issues of fact.
Plaintiff argues in opposition that the
City’s claim that it was not reasonably foreseeable that Plaintiff would use
the parkway on the night of the incident conflicts with the City’s own Parkway
Guidelines which anticipate that city parkways will be used and maintained as
“open and free passage between the street and sidewalk for pedestrians,” and
provide “a commonly accepted, uniform walking surface” that “has the ability to
tolerate foot traffic.” (Gsell Decl., Exh. E, City’s Parkway Guidelines, Sec.
I.) Further, the subject parkway in this case fell below the above
standard of care for parkways because the subject parkway was sunken 3 to 4
inches below the grade level of the curb and sidewalk with an exposed tree root
several inches in height, which created a trip hazard for a pedestrian walking
across the parkway from the street to the sidewalk especially at night with
reduced illumination. (Gsell Decl., ¶ 15, 17.)
As such, Plaintiff
has presented evidence to show that the exposed tree root in the parkway posed
a substantial risk of injury when used with due care, because the ground was
sunken three inches, and the tree root was several inches in height, and
because foot traffic in a parkway is a reasonably foreseeable use of the
property as evidenced by Defendant’s City Parkway Guidelines. Thus, the parkway
was used in a reasonably foreseeable manner.
Accordingly, the
motion for summary judgment is denied.
Conclusion
Based on the
foregoing, Defendant City of Los Angeles’ motion for summary judgment is
DENIED.
Moving
party is ordered to give notice.