Quarker v. City of Culver City CA2/1 ( 2023 )

Filed 1/25/23 Quarker v. City of Culver City CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
TREASURE QUARKER et al., B314109
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC668362)
v.
CITY OF CULVER CITY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark H. Epstein, Judge. Reversed.
Singleton Schreiber, Benjamin I. Siminou; Bish & Cutting
and Stacey R. Cutting for Plaintiffs and Appellants.
McCune & Harber, Kenton E. Moore and Tiffany Schneider
for Defendant and Respondent.
____________________________
Treasure Quarker, her children, and nephew sued Aiman
Ahmed Ibrahim, who, while inebriated, drove into Treasure
Quarker as she stood behind her parked vehicle. Quarker’s
children and nephew were inside the vehicle. Plaintiffs also sued
the City of Culver City, alleging a single cause of action for
dangerous condition of public property. The trial court granted
summary judgment in favor of Culver City finding no dangerous
condition of public property and no causation. Accordingly, the
trial court concluded that as a matter of law, plaintiffs could not
prove a cause of action for dangerous condition of public property.
We reverse the judgment. The evidence, when interpreted
in the light most favorable to plaintiffs, supports the inference
that a dangerous condition of public property existed and was a
cause of the collision. Culver City created a lane taper to guide
moving vehicles away from parked vehicles. The taper was
inconsistent with guidelines designed to promote safety and with
Culver City’s own design. A reasonable trier of fact could
conclude that the failure to follow these safety guidelines resulted
in the taper failing to divert traffic from the parked car lane, and
thus created a dangerous condition of public property. Although
it is undisputed that Ibrahim was inebriated when he collided
with Quarker, his culpability does not necessarily negate the
possibility that the dangerous condition of public property also
caused the collision.
BACKGROUND
1. Plaintiffs sue the City for dangerous condition of
public property
Treasure Quarker, Kamare Brazie, Ariyon Quarker, Amir
Quarker, Arion Quarker (Treasure Quarker’s children and
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nephew) (collectively plaintiffs) sued the City of Culver City
(sometimes referred to as the City) and Aiman Ahmed Ibrahim.
Plaintiffs alleged that on June 18, 2016 at 1:02 a.m., Treasure
Quarker’s vehicle “was lawfully parked at a parking meter at the
north curb of Washington Boulevard . . . .” According to the
complaint, “Washington Boulevard is a designated east/west
roadway having two traffic lanes in each direction, a middle turn
lane, and interspersed metered parking located along the north
curb of Washington Boulevard’s westbound lane.”
Plaintiffs alleged Treasure Quarker had secured the
children inside the vehicle and was standing at the rear of her
vehicle when Ibrahim “drove into the rear of Plaintiff’s vehicle
without braking [the collision].” “Plaintiff Treasure Quarker’s
legs were crushed between the two vehicles.” Treasure Quarker
required the immediate amputation of her left leg and suffered
other fractures. The children, who were inside the vehicle at the
time of the collision, allegedly suffered unidentified injuries.
The only cause of action plaintiffs alleged against the City
is for a dangerous condition of public property. Plaintiffs alleged
“the subject location constituted a dangerous condition [of] public
property that created a reasonably foreseeable risk of the type of
injury hereinafter alleged when the property was used with due
care in a manner that was reasonably foreseeable in that, among
other dangerous and defective conditions, the number 2 lane of
westbound Washington Boulevard at the subject location on
which Defendant Ibrahim was traveling veers left and abruptly
changes into interspersed metered parking spots without any
clear demarcation, warning, striping, signing, or signaling, to
notify drivers of the metered parking on the north curb of
westbound Washington Boulevard.”
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2. The parties agree that at the time of the collision,
Ibrahim was intoxicated and could not recall the
collision or events preceding it
According to the parties’ separate statements, the following
facts are undisputed: In January 2018, Ibrahim pleaded no
contest to violating Vehicle Code section 23153, subdivision (b),
driving with a blood alcohol level of .16 percent. Ibrahim did not
remember “driving at any point before the crash, nor what lane
he was driving in.” Ibrahim “did not remember the route he took
leading up to the crash, and when he awoke believed that
plaintiffs crashed into his vehicle.” “Ibrahim . . . admitted that
he did not remember anything between 10:30 p.m. and 1:30 a.m.
on the night of the accident.” “Ibrahim had no recollection of
driving on Washington Boulevard or how his vehicle struck Ms.
Quarker and her vehicle.” “Ibrahim did not recall driving
towards plaintiffs’ vehicle at any point before the accident.”
3. The City moves for summary judgment
In its motion for summary judgment, the City argued:
“[T]here were no similar accidents on Washington Boulevard in
the nine-years preceding the subject accident, and a lack of prior
accidents proves Culver City did not have notice of the supposed
dangerous condition. Additionally, the lack of prior similar
accidents and the area where the accident occurred was flat and
straight combin[ing] to prove the roadway was not in a dangerous
condition of public property. Further, the area where the
accident occurred was part of an approved plan or design,
immunizing the City from liability under Government Code
[section] 830.6. Next, any claimed defect was minor, trivial, or
insignificant . . . . Finally, defendant Ibrahim solely caused the
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accident due to his intoxicated driving.” (Boldface & italics
omitted.)
In support of their motion, the City attached the
declaration of John Fisher, a civil and traffic engineer, who
worked part-time as a consultant for Culver City. According to
Fisher, the Manual on Uniform Traffic Control Devices
(MUTCD), is the “authoritative source for all streets and
roadways open to public travel.” Fisher reviewed the City’s
collision history and found seven collisions in a nine-year period
preceding the subject Collison. None involved “a westbound
vehicle colliding with a parked vehicle.” Based on the collision
history, Fisher opined that the area was “reasonably safe[ ]
relative to the risk of motor vehicle conflicts with on-street
parked vehicles.”
According to Fisher, “[T]he existing tapered striping is
shorter than that prescribed in the California MUTCD. The
existing taper shifts the striping five feet to the south. It starts
approximately 92 feet west of the Robertson Boulevard/Higuera
Street intersection and ends approximately 166 feet west of the
intersection, a tapered length of 74 feet. . . . [T]he actual tapered
length is 28 feet short of the guideline . . . and the taper should
have ended 194 feet westerly of the intersection, not at 166 feet
westerly of the intersection. Although the taper is somewhat
short, parking is prohibited with red curb along the north side
within the entire 166-foot existing zone and the 194-foot
MUTCD-compliant zone. Thus, there is no safety consequence to
parked vehicles since there is no parking in the existing 166-foot
zone nor in the 194-foot MUTCD-compliant zone.” Fisher opined
that the short taper did not “play a role in the subject incident”
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because the collision occurred 249 feet west of the taper and
221 feet west of the MUTCD compliant taper.
Mate Gaspar, an engineering service manager employed by
the City, stated that in December 2002, the City Council
approved plans for resurfacing Washington Boulevard and in
2004 accepted the project. Gasper reported the parking spots
were removed after the collision to make room for a bus stop and
that the removal “had nothing to do with the subject accident.”
The City also included the declaration of former police
officer Jason Davis, who had investigated the collision. He stated
that the collision occurred 415 feet from the intersection of
Robertson. The trial court excluded Davis’s traffic collision
report, and on appeal, the City does not challenge the propriety of
that exclusion.1
In support of its motion for summary judgment, the City
attached part of Ibrahim’s deposition and responses to discovery,
and a transcript of his criminal sentencing at which he took “full
responsibility” for the collision and was sentenced to four years
and four months of jail time for driving under the influence of
alcohol. Also in the context of the criminal proceedings, Ibrahim
admitted, “I was very much under the influence.” Ibrahim also
admitted he did not recall driving his vehicle at the time of the
collision. He stated: “I have no recollection from 10:30 to 1:30.
1 If the proponent of excluded evidence does not challenge
the trial court’s exclusion of the evidence, any challenge to that
ruling is waived. (Lopez v. Baca (2002) 98 Cal.App.4th 1008,
1014–1015; see also Johnson v. City of Loma Linda (2000)
24 Cal.4th 61, 66 [in reviewing summary judgment, court
does not consider evidence to which objections were made and
sustained].)
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1:30 I woke up, in my car and the accident had already
happened.” Ibrahim reiterated that he did “not remember any of
the roadway markings on the night of the incident.”
The City also attached the Culver City Police Department’s
arrest report. According to the arrest report, after the collision,
Ibrahim had a breath alcohol content of .16 percent.
4. Plaintiffs oppose summary judgment
In support of plaintiffs’ opposition to the City’s summary
judgment motion, plaintiffs attached deposition testimony from
Fisher, the City’s designated person most knowledgeable (and the
person who offered a declaration in support of the City’s motion).
In his deposition, Fisher testified the MUTCD “is an important
reference and resource for the application of traffic control
devices.” Fisher also testified that one purpose of the MUTCD
was to promote safety. “The presence of the tapered striping is a
visual identification for the driver to adjust his lateral distance
from the curb.” “If the length of tapered striping were longer,
that would allow a longer time to transition further from the
north curb line.” “The provisions of the MUTCD are designed to
allow drivers sufficient time to make proper decisions.” Fisher
testified that the lane taper was 74 feet long and “[t]he length of
taper was 28 feet short of the guideline. But . . . the guideline is
not a mandate.” Fisher explained, “Drivers are expected to be
guided by the lane line or the center line . . . . The lane line would
be to the left of the vehicle, and the driver should be watching
how it changes throughout the route.”
Plaintiffs proffered the expert declarations of William
Neuman and Brad Avrit in support of their opposition. Neuman
described himself as a licensed civil engineer, professor of
engineering, and involved in the field of “traffic engineering” for
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more than 50 years. Avrit described himself as a licensed civil
engineer, who has analyzed more than 12,000 accident cases and
has routinely qualified as an expert in human factors. His
resume lists his membership in several professional societies,
including the American Society of Safety Professionals, the
California Association of Accident Reconstruction Specialists, and
the Human Factors and Ergonomics Society. Both Neuman and
Avrit opined that a driver unaware of the shortened taper
will not adjust to avoid the parking lane. Neuman also opined:
“While not required Culver City should have taken steps to
protect the public from this dangerous condition by limiting
parking to daylight hours, and/or using signage to warn drivers of
the parked cars ahead, installing rumble strips, providing
reflectors on the taper, or painting a solid line on the right side of
the taper roadway to alert drivers to the taper.”
5. The trial court grants summary judgment
At the hearing on the City’s motion for summary judgment,
the City’s counsel acknowledged that in redesigning Washington
Boulevard to allow for the parking spaces where Quarker parked
her vehicle, Culver City did not follow the MUTCD or its own
plans. Culver City’s counsel described the MUTCD as “the Bible”
of “road design in the State of California.”
Following the hearing, the trial court entered judgment in
favor of Culver City because plaintiffs failed to establish a
dangerous condition of public property and because plaintiffs
failed to show causation.
The trial court found the City had established its initial
burden in moving for summary judgment by showing that the
accident site was over 200 feet from the taper and that no similar
accidents occurred in the past nine years. The court concluded
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plaintiffs had not raised a triable issue of material fact as to the
existence of a dangerous condition because the taper length was
“a guideline, albeit a widely respected one.” “[T]he failure to
follow the taper-length guideline is somewhat troubling. But
that is not enough. . . . The flaw in plaintiffs’ logic is that the
dangerous condition had to exist at the accident site to be
relevant, not at some other location.”
The trial court further found that “the accident here
occurred well beyond what the taper would have been had the
taper complied fully with the MUTCD guidelines.” The trial
court also found that Ibrahim “was inebriated when he was
driving and did not remember seeing any roadway markings, or
taking any evasive actions, and did not recall driving toward
plaintiff’s vehicle; plaintiffs failed to demonstrate that the
condition of the roadway otherwise contributed to or caused
plaintiffs’ injuries such that Mr. Ibrahim was not the sole cause
of the accident . . . .”
DISCUSSION
“ ‘The purpose of the law of summary judgment 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.’
[Citation.] ‘[T]he party moving for summary judgment bears the
burden of persuasion that there is no triable issue of material fact
and that he is entitled to judgment as a matter of law.’
[Citation.] A defendant can meet this burden by ‘present[ing]
evidence which, if uncontradicted, would constitute a
preponderance of evidence that an essential element of the
plaintiff’s case cannot be established.’ [Citation.] ‘Once the
[defendant] has met that burden, the burden shifts to the
9
[plaintiff] to show that a triable issue of one or more material
facts exists as to the cause of action . . . .’ [Citations.] A triable
issue of material fact exists when ‘the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.’ [Citation.]” (Webster v. Claremont Yoga
(2018) 26 Cal.App.5th 284, 287–288.)
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
forseeable risk of the kind of injury which was incurred, and
[that] . . . [t]he 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.’ ” (Bonanno v. Central Contra Costa Transit Authority
(2003) 30 Cal.4th 139, 146 (Bonanno).)
Government Code section 830 defines a dangerous
condition as “ ‘a condition of property that creates a
substantial . . . risk of injury when such property or adjacent
property is used with due care’ in a ‘reasonably foreseeable’
manner.” (Bonanno, supra, 30 Cal.4th at p. 147.) The existence
of a dangerous condition generally is a question of fact but may
be a question of law if “reasonable minds can come to only one
conclusion.” (Id. at p. 148.)
In addition to showing the existence of a dangerous
condition, a plaintiff must show, inter alia, that “the dangerous
condition proximately caused his or her injury.” (Bonanno,
supra, 30 Cal.4th at pp. 154–155.) A public entity may be liable
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for a dangerous condition of public property that “ ‘caused the
injury plaintiffs suffered in an accident, but did not cause the
third party conduct that led to the accident.’ ” (Cordova v. City of
Los Angeles (2015) 61 Cal.4th 1099, 1104; see ibid. [summary
judgment reversed because wrongful death plaintiffs did not have
to show the alleged dangerous condition, a magnolia tree in a city
median strip, caused the third party-conduct, a motorist’s
sideswiping the car driven by decedents which car then hit the
tree].)
On appeal, the parties dispute the existence of a triable
issue of fact as to the existence of a dangerous condition of public
property and causation. The parties also dispute the
admissibility of evidence in plaintiffs’ expert declarations. As we
shall explain, once the admissible evidence is considered,
plaintiffs raised triable issues of material fact both as to the
existence of a dangerous condition of public property and
causation.
A. The Trial Court Abused its Discretion In Excluding
Portions of Plaintiffs’ Experts’ Declarations
On appeal, the parties dispute whether the trial court
abused its discretion in excluding parts of Neuman’s and Avrit’s
declarations. (See Lowery v. Kindred Healthcare Operating, Inc.
(2020) 49 Cal.App.5th 119, 124 [appellate court reviews exclusion
of expert testimony for abuse of discretion].) We begin with
additional background and then consider the parties’ arguments.
To recapitulate from our Background, defense expert,
Fisher, a civil and traffic engineer, opined: “The difference in
tapers shown in the guideline versus the actual striping did not
play a role in the subject incident, in my opinion, as the location
was far downstream, or west, of the zone of tapered striping. . . .
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[C]ompared with the end of MUTCD-compliant tapered striping,
the subject incident was approximately 221 feet . . . , westerly of
that point . . . .” According to Fisher, although the taper is
somewhat short, parking is prohibited with red curb along the
north side within the entire 166-foot existing zone and the 194-
foot MUTCD-compliant zone. Thus, there is no safety
consequence to parked vehicles since there is no parking in the
existing 166-foot zone nor in the 194-foot MUTCD-compliant
zone.”
William Neuman, plaintiffs’ expert, counter-opined, “The
problem created by the shortened notice is when a driver misses
the need to taper, then that driver will be unaware of the taper
and will continue west much in the same position in the
westbound number 2 lane beyond the taper and not move
south. . . . Once past it, there are no further informational inputs
to the driver unless he sees a car which may trigger a response.”
Brad Avrit, plaintiffs’ other expert, held the same opinion. Both
experts analogized missing the taper to missing a “Do Not Enter”
sign.
The City objected to Neuman’s and Avrit’s opinions on the
basis that they were conclusory and not within Neuman and
Avrit’s expertise because both were “unqualified to opine on
human factors.” In its order granting summary judgment, the
trial court essentially agreed with the City: “Essentially, Culver
City argues that they [Neuman and Avrit] do not lay an adequate
foundation for their opinions. For example, both Mr. Neuman
and Mr. Avrit attest as to reaction speed and depth perception at
night. They also attest to what draws a driver’s attention while
driving and whether missing a taper is analogous to missing a
one-way street sign. But neither Mr. Neuman nor Mr. Avrit have
12
established that, as traffic engineers, they can opine on human
behavior, nor have they established that they have been trained
to analyze such issues.”
An expert must provide a “ ‘reasonable basis for the
particular opinion offered’ ” and cannot rely on “ ‘speculation or
conjecture.’ ” (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 770.) Trial courts, however,
must “be cautious in excluding expert testimony. The trial
court’s gatekeeping role does not involve choosing between
competing expert opinions.” (Id. at p. 772.)
In Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928–
929, a case the City cites, the appellate court affirmed the grant
of summary judgment based on the absence of a triable issue of
fact as to a dangerous condition of a sidewalk after the plaintiff
fell on a crack in the sidewalk that was not greater than half an
inch high. The appellate court agreed with the trial court that as
a matter of law, a half inch crack in a sidewalk was too trivial to
form a dangerous condition. (Id. at p. 927.) Second, and more
relevant to the issues here, the appellate court held that that
plaintiff could not avoid that conclusion by relying on its expert’s
opinion about noncompliance with the building code. The expert
“failed to indicate that these codes and standards have been
accepted as the proper standard in California for safe sidewalks.
Moreover, there is no indication regarding whether such codes
apply to existing walkways as opposed to new construction.” (Id.
at p. 928.) Thus, the trial court did not abuse its discretion in
excluding that expert opinion in that case.
Here, in contrast to Caloroso, it was undisputed that the
City failed to comply with the MUTCD, and that its taper was
shorter than the state standard (and the distance required even
13
in the City’s own design plan). In other words, Caloroso’s finding
that a court did not abuse its discretion in excluding an expert’s
opinion that the failure to follow building codes made a condition
dangerous was based on the absence of evidence that the building
codes set the applicable standard for safe sidewalks. Here, the
City’s expert acknowledged that the MUTCD is the “authoritative
source for all streets and roadways open to public travel.”
Assuming, as the City argues, that only an expert on
human factors could assess the consequence of the shortened
taper, Avrit claimed such expertise. As noted in our Background,
it was undisputed that Avrit had “extensive technical and
practical experience in conducting safety investigations based on
his investigation of 12,000 accident cases over 28 years, including
“hundreds of similar cases.” He also “personally qualified as an
expert in human factors on numerous occasions in Courts within
California and Nevada and throughout the United States.” On
appeal, the City offers no challenge to Avrit’s claimed expertise
and no support for its assertion that Avrit’s opinion lacked
foundation because he is not an expert on human factors. The
trial court thus abused its discretion in excluding Avrit’s opinion
on the basis that he lacked the requisite expertise for his
opinions.
More fundamentally, the trial court essentially chose
between competing expert declarations. At the summary
judgment stage, courts must construe the opposing party’s
evidence liberally. (Garrett v. Howmedica Osteonics Corp. (2013)
214 Cal.App.4th 173, 189.) “In light of the rule of liberal
construction, a reasoned explanation required in an expert
declaration filed in opposition to a summary judgment motion
need not be as detailed or extensive as that required in expert
14
testimony presented in support of a summary judgment motion
or at trial.” (Ibid.; see also Michaels v. Greenberg Traurig, LLP
(2021) 62 Cal.App.5th 512, 524 [“a reasoned explanation required
in an expert declaration filed in opposition to a summary
judgment motion need not be as detailed or extensive as that
required in expert testimony presented in support of a summary
judgment motion or at trial”].)
Although expert opinion lacking in foundation or
speculative is inadmissible (Lynn v. Tatitlek Support Services,
Inc. (2017) 8 Cal.App.5th 1096, 1115), both Neuman and Avrit
had extensive experience and both had observed the available
“informational inputs” to cue a driver to avoid the parking lane
before they opined the taper was the only marking directing
traffic away from parked vehicles. (See Cole v. Town of Los Gatos
(2012) 205 Cal.App.4th 749, 761–763 (Cole) [expert declaration
based in part on expert’s observation of area provided basis for
expert’s opinion].) The trial court abused its discretion in
excluding plaintiffs’ experts’ opinion that a driver who misses the
taper would not otherwise be alerted to the lane-shift.2 (See Cole,
at p. 764 [holding that at summary judgment stage, trial court
erred in excluding plaintiff’s expert declarations that directly
rebutted defendant’s expert declarations].)
2 Although the parties dispute the admissibility of other
portions of Neuman’s and Avrit’s declarations, we do not rely on
those portions and therefore do not decide whether the court
erred in excluding those portions.
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B. The City Does Not Show as a Matter of Law That No
Dangerous Condition of Public Property Existed
The City argues: (1) “The complete absence of prior similar
accidents proves there is no substantial risk of injury and hence
no dangerous condition”; and (2) “The accident occurred some
200 feet beyond the ending of either the existing lane taper or the
recommended lane taper. During that last 200 feet the two
westbound lanes run parallel to the curb lane on Washington
Boulevard. Accordingly, any deviation from the MUTCD did not
render the Subject Location per se dangerous.”
The latter argument is based on an incorrect premise. The
issue is not whether the location was “per se dangerous,” but
whether plaintiffs raised a triable issue of material fact
supporting the inference that a dangerous condition of public
property existed, i.e., a condition creating a substantial risk of
injury when used with due care in a reasonably forseeable
manner. (Bonanno, supra, 30 Cal.4th at p. 147.)
There was admissible evidence supporting the inference
that a dangerous condition of public property existed. The City
failed to comply with safety guidelines when it accepted a taper
that did not comply with MUTCD guidelines or the City’s own
plans. Fisher testified in his deposition: “The California MUTCD
contains standards, guidance, options, and support statements
regarding the application of traffic control devices.” The MUTCD
“refers to promoting highway safety and efficiency.” “With
regard to safety, the . . . length of the lane tapering is a
consideration . . . .” “Traffic safety is always a consideration
when applying traffic controls in the MUTCD.” “The provisions
of the MUTCD are designed to allow drivers sufficient time to
make proper decisions.” “The presence of the tapered striping is
16
a visual identification for the driver to adjust his lateral distance
from the curb.” “We have the tapered striping to identify for the
road user to transition over to a point further from the north curb
line.” “If the length of tapered striping were longer, that would
allow a longer time to transition further from the north curb
line.” “The purpose of the tapered striping was to provide a lane
that would be further from the north curb prior to the zone of
where parking was to be accommodated.” Both Neuman and
Avrit averred that a driver who misses the taper will continue
driving in the parking lane, which the City does not dispute is a
substantial (not a trivial) danger.
The fact that the accident occurred over 200 feet beyond the
taper does not demonstrate the absence of a dangerous condition
of public property as a matter of law. According to Fisher, the
taper was designed to move cars away from the parking spaces in
advance of those spaces. According to plaintiffs’ experts, the
taper did not achieve that purpose, which supports the inference
that the substandard taper created a risk for vehicles in the
parking lane, notwithstanding that the accident occurred over
200 feet beyond the taper.
On appeal, the City argues: “The complete absence of prior
similar accidents proves there is no substantial risk of injury and
hence no dangerous condition.” Although not dispositive on the
issue of the existence of a dangerous condition, the absence of
prior similar accidents is a relevant consideration. (Salas v.
Department of Transportation (2011) 198 Cal.App.4th 1058,
1071.) The absence of similar accidents, however, is insufficient
to show as a matter of law, no dangerous condition of public
property existed. (Lane v. City of Sacramento (2010)
183 Cal.App.4th 1337, 1346 [absence of similar accidents is
17
relevant but is not dispositive of whether a condition is
dangerous]; but see Thimon v. City of Newark (2020)
44 Cal.App.5th 745, 763 [remote risk where evidence showed lack
of similar collisions in 10 years proceeding accident].) In sum,
because the evidence could support the conclusion that a
dangerous condition of public property existed, the trial court
erred in concluding as a matter of law that it did not.3
C. The City Does Not Show It Is Entitled to Judgment
as a Matter of Law on Causation
The City argues: “[N]o physical characteristic of the
property exposes users to increased danger from third-party
negligence or criminality.” (Boldface & some capitalization
omitted.) For purposes of this appeal only, we assume the City
satisfied its initial burden on summary judgment and conclude
that plaintiffs raised a triable issue of material fact as to
causation.
A third party’s conduct may combine with a dangerous
condition to cause injury. “[I]f a condition of public property
‘creates a substantial risk of injury even when the property is
used with due care’ [citation], a public entity ‘gains no immunity
from liability simply because, in a particular case, the dangerous
condition of its property combines with a third party’s negligent
conduct to inflict injury.’ [Citation.]” (Cordova, supra, 61 Cal.4th
3 Because we conclude that plaintiffs raised a triable
material fact concerning the existence of a dangerous condition
based on the length of the taper, we need not consider the parties’
arguments concerning whether the public property was
dangerous because the City did not use raised reflectors or
thermoplastic striping.
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at p. 1105.) Our high court rejected the view that “a public entity
cannot be held liable for a property defect that ‘combines with a
third party’s negligent conduct to inflict injury’ [citation], unless
the plaintiff can show that the defect caused the third party
negligence.” (Id. at pp. 1106–1107.) The high court held that a
plaintiff was not required to show “that the allegedly dangerous
condition also caused the third party conduct that precipitated
the accident.” (Id. at p. 1106.) The City’s reliance on Cerna v.
City of Oakland (2008) 161 Cal.App.4th 1340, 1348 for the
principle that “[t]here must be a defect in the physical condition
of the property and that defect must have some causal
relationship to the third party conduct that injures the plaintiff”
therefore is misplaced.
In Cole, supra, 205 Cal.App.4th at p. 769, the appellate
court explained that a public entity may be responsible for a
dangerous condition to public property when it, along with an
inebriated driver, caused injury. In Cole, a plaintiff was injured
as she loaded a bicycle into the rear of her vehicle. (Id. at p. 754.)
A driver, who had consumed alcohol, left the road and collided
with plaintiff. (Ibid.) Plaintiff “theorized that [the defendant
driver] had left the road in an attempt to bypass” stopped cars,
which were waiting for another driver to make a left-hand turn.
(Id. at pp. 754–755.) Plaintiff’s theory was that the configuration
of the road “and the adjacent gravel area created a danger to
users of the latter in that eastbound drivers on [the road] were
often induced to leave the road [as the driver who collided with
plaintiff did] and enter the graveled area, where they posed an
obvious hazard to persons who had parked there (as plaintiff did),
and particularly those standing near the rear of a vehicle parked
diagonally, as was the custom.” (Id. at p. 759.) Plaintiff’s traffic
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expert opined that “various deficiencies in the configuration of
the road and graveled area [played] a causal role in the accident.”
(Id. at p. 756.)
The appellate court reversed summary judgment in favor of
the defendant town because although the evidence supported the
conclusion that the driver veered off the road in a “drunken
stupor” (Cole, supra, 205 Cal.App.4th at p. 778), it also supported
the conclusion that the driver veered off the road to avoid the
slow traffic (id. at pp. 777–778). The appellate court held “a jury
could reasonably find a substantial causal relation between the
dangerous condition posited by plaintiff and the injuries suffered
by her.” (Id. at p. 778.)
Turning to this case, the trial court focused on Ibrahim’s
lack of recall and the City incorrectly asserts that Ibrahim
“black[ed] out” as a result of drinking. The City cites only to its
motion, which is not evidence. Although in the trial court, the
City cited to Ibrahim’s deposition testimony, that testimony
shows only a lack of recall, not that Ibrahim “black[ed] out” from
drinking alcohol. Ibrahim’s lack of recall after the collision does
not foreclose the inference that he collided with Treasure
Quarker’s vehicle because he missed the too-short taper and no
other cue informed him that he was driving in a parking lane.
The City next asserts that Treasure Quarker “was parked
more than 200 feet west of the area of where the taper should
have ended had the City complied with the MUTCD.” The City
assertion is not followed by any legal analysis. To the extent the
City is arguing that it has demonstrated as a matter of law, the
dangerous condition of public property did not cause the collision
because the collision occurred west of the taper, the argument is
unpersuasive. As we have explained, the purpose of the taper
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was to move vehicles away from the parking lane to avoid hitting
parked cars. If the taper was ineffective in its purpose, it could
create a dangerous condition for any vehicle parked in the
adjacent parking lane, including Treasure Quarker’s vehicle. Of
course, this will be a matter for the jury to consider, and we
express no opinion on the outcome other than to reject the trial
court’s conclusion that Ibrahim’s inebriation caused the accident
to the exclusion of any potential liability on the City’s part.
Based on the evidence in support and in opposition to
summary judgment, a reasonable jury could conclude that
Ibrahim missed the taper and received no other cue to move out
of the parking lane. Neuman’s and Avrit’s admissible opinions
support the inference that a driver, such as Ibrahim who misses
the taper, will drive into the parking lane, just as Ibrahim did. A
reasonable jury also could conclude that Ibrahim veered into the
parking lane in a drunken stupor. This existence of multiple
reasonable inferences precludes granting summary judgment.
(Cole, supra, 205 Cal.App.4th at p. 756 [to obtain summary
judgment party must show that the evidence “raises no material
issue that a trier of fact could resolve in favor of the party
opposing the motion”].) Because plaintiffs raised triable issues of
material fact as to the existence of a dangerous condition of
public property and as to causation, and because the City offers
no other ground for affirming the judgment, the trial court erred
in granting summary judgment.
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DISPOSITION
The judgment is reversed. Plaintiffs and appellants are
entitled to their costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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