Dangerous Condition Liability Under Government Code § 835

The must read case of 2012

— by Jeremy K. Robinson

(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)

Every now and again, I get to write about one of my Must Read cases of the year.  Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749 is one of those cases.  If you practice law on the plaintiff’s side and haven’t read this case yet, promise yourself you will read it after finishing this article.  You won’t regret the 10 or 15 minutes it takes, in part because there is just too much good material in that case for me to mention here.

Cole is a dangerous condition case brought under Government Code § 835.  Just as a quick refresher, a dangerous condition under section 835 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, subd. (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.”  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.  To establish a qualifying condition, the plaintiff must point to at least one “physical characteristic” of the property (Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1187), although the location of property may constitute a qualifying characteristic.  Bonanno, supra, 30 Cal.4th at pp. 154.

As with far too many dangerous condition cases, Cole came to the appellate court after the defendant, Town of Los Gatos, obtained summary judgment.  Not only did the appellate court reverse summary judgment, but it went out of its way to criticize the defendant for several motion practices we see regularly, including mass evidentiary objections, obtuse arguments, and unnecessary long and circular briefs.  If nothing else, the opinion is a fun read for the verbal beating dispensed.

The plaintiff in Cole was badly hurt when she was hit by a driver who drove through a gravel area on the side of the road.  The plaintiff had parked in the gravel area – a practice allowed by the Town – to visit the adjoining park.  The driver of the car that hit the plaintiff, who would later plead guilty to DUI, evidently was in a huge hurry to avoid traffic backed up on the two lane road from a driver turning left into her driveway, and drove into the shoulder to do it.  After hitting the plaintiff, he headed home to spend time with his family because he knew he was going to be arrested as a repeat DUI offender.

Both the road and the gravel area next to it were Town property, so the plaintiff filed a claim against the Town for dangerous condition.  According to the plaintiff’s evidence, the Town knew of the traffic problem posed by the two lane road and had received at least one complaint about motorists driving in the gravel to get around stopped traffic.  The Town also knew that people parked diagonally in the gravel area to visit the park, and condoned that practice.  Additionally, a barrier fence at the west end of the graveled area was too short to discourage eastbound drivers from entering that area.

The Town moved for summary judgment, arguing in a roundabout way that the plaintiff could not establish causation.  In opposing the motion, the plaintiff submitted the declaration of traffic engineer Robert Shanteau concerning the hazards posed by the design of the road and gravel area.  At the heart of Shanteau’s declaration was his opinion that “on the day of the collision, Blossom Hill Road at the place of this injury constituted a dangerous condition of public property” as the result of multiple factors, i.e., “the physical characteristics of the roadway, the traffic volumes, lane and shoulder widths, size and proximity of the merge leading into the one eastbound lane, the permitted angle parking adjacent to the park, the typical speeds on the roadway, and the permitted left turns into residential driveways on the north side of Blossom Hill Road at the point of the impact. The combination of these factors made just this type of collision more than simply foreseeable—it made such a collision likely.”

The Town objected to Shanteau’s declaration on nearly every conceivable ground, and the trial court sustained most of the objections, essentially gutting the declaration.  In a discussion I urge anyone facing a summary judgment motion to read, the Sixth District court of appeal held the objections were sustained in error.

The court first noted that the declaration may not even have been needed “to raise a triable issue of fact,” but indicated that “in the absence of a meritorious objection it was certainly sufficient to have that effect.”  Cole v. Town of Los Gatos, supra, 205 Cal.App.4th at 754 (italics in original).  Then, the court reiterated the frustration expressed by other courts at the practice of parties objecting to every fact or opinion on every basis possible.  I’ll let the court speak to this:

Town opens each objection by citing one or two rules of evidence but in the ensuing discussion manages to allude to perhaps half of the major principles in the Evidence Code. We believe that where a trial court is confronted on summary judgment with a large number of nebulous evidentiary objections, a fair sample of which appear to be meritless, the court can properly overrule, and a reviewing court ignore, all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court.  Cole, at 764, fn. 6 (italics in original).

The court further commented that even if the objections to the opinions in the declaration were to be considered, they were meritless since the Town had submitted its own expert declaration addressing the same subject.  “[I]t is simply baffling that Town would object to [the expert’s opinions] on any ground—and no such objection should even have been entertained—since Town had unmistakably opened the door to this evidence by offering averments in its moving papers from its traffic engineer [] of exactly the same tenor, on exactly the same subject.”  Id. at 763-64.

Space prevents me from recounting the rest of the court’s discussion on the evidentiary objections, but as I said in the beginning, it is worth your time to read.  Particularly if you enjoy a little plaintiff attorney schadenfreude.

Eventually, the court got to the heart of the dispute, which was the Town’s claim that the plaintiff could not prove causation because the defendant driver’s intoxicated driving was a superceding cause.  The Cole court did not agree.  The court first reminded the parties that in order to get summary judgment, the Town couldn’t just show the defendant driver was a cause of the crash, but rather “had to establish as a matter of law that plaintiff would be unable to present evidence that any condition of the public property where the accident occurred was also a substantial causative factor in bringing about her injuries.”  Cole at p. 769.

This, the Town could not do.  “Even when a third party’s intervening act is unforeseeable, the defendant’s conduct may continue to be operate as a legal cause if the defendant could reasonably foresee the injury resulting from his own conduct.“  Id. at 770.  So, even accepting the Town’s contention that it was unforeseeable that a drunk driver would collide with a person in plaintiff’s position, “it could be found foreseeable that a sober driver would do so, and many if not all of the measures necessary to protect against that risk would also have protected against the risk of injury from a drunk driver.”  Id. at 771.

The Cole court also disagreed with, and thus declined to follow, the decision from our Fourth District in City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21 to the extent that decision “adopts a new and extremely restrictive rule for determining when the conduct of a third party will operate as a superseding cause excusing a public entity from liability for a dangerous condition of its property.”  Cole, supra, at p. 774.  The Town had argued City of San Diego and other decisions stemming from the Supreme Court’s decision in Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112 barred a finding of liability unless the plaintiff could demonstrate the dangerous condition somehow caused the third party conduct.

The court in Cole did not believe that result was warranted by Zelig, which has since been interpreted by the Supreme Court as holding that liability can be found under section 835 when a feature of the property “increased or intensified” the danger to users from third party conduct.  In other words, there must be some connection between the configuration of the property and the third party actions, but one need not be a direct cause of the other.  Cole at p. 774.  The Cole court found this standard easily satisfied in the case before it since the trier of fact certainly could conclude the third party’s driving in the gravel area to get around stopped traffic was “caused” by the characteristics the plaintiff alleged made the area dangerous.  Id.

Well that’s it for this Must Read case.  I had to omit a lot of quality quotes and holdings from my discussion due to the length of the case, so if I haven’t mentioned it before, I suggest you read the case for yourself.