Rupasinghe v. City of Los Angeles CA2/5 ( 2021 )

Filed 12/14/21 Rupasinghe v. City of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
VIDURA PAUL RUPASINGHE, B291364
et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No. BC603062)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Marc D. Gross, Judge. Affirmed.
McNicholas & McNicholas, Matthew S. McNicholas, Jeffrey
R. Lamb and Emily R. Pincin for Plaintiffs and Appellants.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Senior Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney and
Shaun Dabby Jacobs, Deputy City Attorney for Defendant and
Respondent.
______________________
Harvey Kaplan fatally struck Rita Rupasinghe with his car
as she crossed Overland Avenue at Rose Avenue in a marked
crosswalk. Rupasinghe’s adult sons, Saranga Upsanna
Rupasinghe and Vidura Paul Rupasinghe (plaintiffs), sued the
City of Los Angeles, alleging their mother’s death was caused by
a dangerous condition at the intersection. (Gov. Code, § 835.)1
The trial court granted City’s motion for summary judgment,
finding as a matter of law the intersection was not a dangerous
condition at the time of Rupasinghe’s death. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Undisputed Facts
On November 10, 2014, at approximately 6:40 p.m., Kaplan
was driving southbound on Overland Avenue toward Rose
Avenue in the number two lane closest to the curb. He testified
in his deposition he was travelling at approximately 15 to 20
miles per hour. Rupasinghe was crossing from east to west on
Overland in a marked crosswalk at Rose. Kaplan hit her with his
car as she neared the west end of the crosswalk. She died before
emergency personnel arrived.
The weather was clear, and it was dark outside. The
roadway surface was dry. There were no unusual roadway
conditions such as holes, deep ruts, loose material, obstructions,
construction, repair zones, roadway width reduction, or flooding.
Where it intersects with Rose, Overland runs north and
south with two lanes of traffic in each direction separated by a
center turn lane that is ten feet wide. The intersection at
Overland and Rose is a “jogged” intersection, meaning Rose does
not run straight through Overland. Instead, two offset
1 All further undesignated statutory references are to the
Government Code.
2
intersections are created: the north jog of Rose intersects the
east side of Overland at a T-intersection and the south jog of Rose
intersects the west side of Overland at a second T-intersection.
Rupasinghe was crossing Overland at the north jog of Rose in a
crosswalk that is 15 feet wide with multiple two-foot-wide yellow
ladder bars between one-foot-wide yellow boundary stripes
spanning the entire width of Overland.
As Overland approaches Rose from the north, it has a
straight alignment and runs downhill with a grade ranging from
10 percent to 3.2 percent at the crosswalk. A school is located
near the intersection. The posted speed limit in that portion of
Overland is 25 miles per hour when children are present or 35
miles per hour otherwise. Signs and pavement markings on the
southbound side of Overland include: an eight-foot tall “SLOW
SCHOOL XING” roadway marking, two different Advance School
Crossing Ahead signs, a Yield Here to Pedestrian sign, white
shark’s teeth Yield Markings in the roadway, and two fluorescent
yellow-green School Crosswalk signs with a 45-degree down
arrow on either end of the marked crosswalk.
An overhead streetlight is located on the west sidewalk of
Overland, adjacent to the west end of the crosswalk. An
overhead streetlight is also located on the northeast corner of
Overland and Rose. There are three streetlights on each side of
Overland as it approaches the north jog of Rose. All were
operational that evening. There is a signalized intersection on
Overland at the south jog of Rose.
2. The Lawsuit
On December 7, 2015, plaintiffs filed a complaint against
City, alleging Rupasinghe’s death was caused by a dangerous
condition of public property under section 835. City moved for
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summary judgment, arguing the Overland and Rose intersection
was not a dangerous condition as a matter of law, it lacked notice
of any dangerous condition, and it was entitled to design
immunity. Plaintiffs’ opposition primarily relied on a declaration
from their traffic and civil engineering expert, Edward Ruzak,
who opined on the existence of a dangerous condition at the
intersection. The expert identified a number of factors that
combined to create a dangerous condition, including the downhill
grade, shortened stopping sight distance, curb parking blocking
the view, foliage blocking the view or creating shadows,
inadequate lighting conditions, oncoming vehicular traffic,
inadequate gaps in traffic, lack of warnings or signs, and lack of
traffic signals. The expert also cited to prior accidents at that
intersection to conclude it was a dangerous condition and that
City had notice of the danger prior to Rupasinghe’s death. City
objected extensively to the expert’s declaration. The trial court
sustained some of City’s objections and declined to rule on others
as they did not affect its analysis.
The trial court granted summary judgment in favor of City.
It examined each factor identified by plaintiffs as contributing to
the dangerous condition and concluded as a matter of law that
none of the factors, whether considered alone or together,
rendered the intersection dangerous. Having reached this
conclusion, the court declined to rule on City’s lack of notice and
design immunity arguments.
Plaintiffs timely appealed.
DISCUSSION
Plaintiffs seek reversal of the order granting City’s motion
for summary judgment and the associated evidentiary rulings
that excluded portions of their expert’s declaration and the
4
driver’s deposition testimony.2 Plaintiffs do not contend City
failed to meet its initial burden to negate the existence of a
necessary element of the cause of action. As a result, we focus on
whether plaintiffs meet their burden to demonstrate a triable
issue of material fact exists as to the dangerous condition
element of their claim. Given this focus, we need not address
those issues or evidentiary rulings that do not affect our
consideration of the dangerous condition element.
1. Standard of Review
“ ‘A defendant is entitled to summary judgment if the
record establishes as a matter of law that none of the plaintiff’s
asserted causes of action can prevail.’ [Citation.] The pleadings
define the issues to be considered on a motion for summary
judgment. [Citation.] As to each claim as framed by the
complaint, the defendant must present facts to negate an
essential element or to establish a defense. Only then will the
burden shift to the plaintiff to demonstrate the existence of a
triable, material issue of fact. [Citation.]” (Ferrari v. Grand
Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a
triable issue of material fact if, and only if, 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
2 Plaintiffs complain that the exclusion of their evidence
resulted in a lack of triable issues of material facts. Our review
of the legal authorities shows that even if plaintiffs’ evidence –
primarily comprised of the driver’s deposition testimony and
their expert’s declaration – was admitted, their claim that a
dangerous condition existed fails as a matter of law. Our
analysis does not require we review each of the trial court’s
evidentiary rulings.
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applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
“We review an order granting summary judgment de novo.
[Citation.] The trial court’s stated reasons for granting summary
judgment are not binding because we review its ruling not its
rationale.” (Canales v. Wells Fargo Bank, N.A. (2018)
23 Cal.App.5th 1262, 1268–1269.)
“We apply the abuse of discretion standard when reviewing
the trial court’s rulings on evidentiary objections.” (Twenty-Nine
Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435,
1447.) An “erroneous evidentiary ruling requires reversal only if
‘there is a reasonable probability that a result more favorable to
the appealing party would have been reached in the absence of
the error.’ ” (Id. at p. 1449.)
Plaintiffs urge us to independently review the trial court’s
evidentiary rulings, citing Reid v. Google, Inc. (2010) 50 Cal.4th
512, 535, in which the Supreme Court expressly left unresolved
whether evidentiary rulings on a motion for summary judgment
are reviewed for abuse of discretion or de novo. The appellate
courts are split on this issue. (See e.g., Schmidt v. Citibank, N.A.
(2018) 28 Cal.App.5th 1109, 1118 [applying abuse of discretion
standard]; Pipitone v. Williams (2016) 244 Cal.App.4th 1437,
1451 [applying de novo review].) However, “the weight of
authority” favors applying an abuse of discretion standard to
evidentiary rulings on summary judgment motions and we follow
those cases. (Schmidt, at p. 1118; see generally Eisenberg et al.,
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group
2021) ¶ 8.168, p. 8-148 [“Pursuant to the weight of authority,
appellate courts review a trial court’s rulings on evidentiary
6
objections in summary judgment proceedings for abuse of
discretion.”].)
2. Overview of Law on Entity Liability for Dangerous
Conditions
A public entity is not liable for an injury arising out of the
alleged act or omission of the entity except as provided by
statute. (§ 815.) Under section 835, a public entity may be liable
if the following four elements are proven: “(1) a dangerous
condition existed on the public property at the time of the injury;
(2) the condition proximately caused the injury; (3) the condition
created a reasonably foreseeable risk of the kind of injury
sustained; and (4) the public entity had actual or constructive
notice of the dangerous condition of the property in sufficient
time to have taken measures to protect against it.” (Brenner v.
City of El Cajon (2003) 113 Cal.App.4th 434, 439 (Brenner).)
When it comes to public roadways, “a public entity is only
required to provide roads that are safe for reasonably foreseeable
careful use.” (Chowdhury v. City of Los Angeles (1995)
38 Cal.App.4th 1187, 1196.) “[P]ublic liability lies under section
835 only when a feature of the public property has ‘increased or
intensified’ the danger to users from third party conduct.”
(Bonanno v. Central Contra Costa Transit Authority (2003)
30 Cal.4th 139, 155 (Bonanno).)
Because City is entitled to summary judgment if any one of
the section 835 elements cannot be established, and the parties’
primary dispute involves whether there was a dangerous
condition at the location of the accident (the first of the four
elements), we address only that element and do not address the
remaining section 835 components listed by Brenner.
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3. Plaintiffs Identify Four Factors as Contributing to a
Dangerous Condition
Plaintiffs contend the following factors, in combination,
created a dangerous condition: “[1] an initial grade slope of 8-
10%, which allows cars to easily travel above the maximum speed
limit; [2] overhanging streetlights obscured by trees and various
foliage, which causes shadows to fall over the roadway; [3] the
oncoming glare of headlights from oncoming northbound traffic,
which causes motorists to have to focus directly on the road in
front of them as opposed to 800 feet forward; and [4] lack of
lighted warning signs, signals, or flashers indicating the presence
of pedestrians.”3
We examine here whether there exists a triable issue of
fact such that any factor identified by plaintiffs, standing alone or
in combination, created a dangerous condition for which City may
be liable.
4. None of the Factors Identified by Plaintiffs
Contributed to a Dangerous Condition
i. Downhill Slope
Plaintiffs assert the initial downward slope on Overland of
8 to 10 percent grade results in cars speeding down the hill,
citing to their expert’s statement to that effect.
In his declaration, plaintiffs’ expert stated, “The subject
crosswalk at the bottom of a hill in a heavily travelled roadway
3 On appeal, plaintiffs appear to have abandoned some of the
factors they argued to the trial court were contributors to the
dangerous condition, including shortened stopping sight distance,
curb parking, and inadequate gaps in traffic. We do not address
them.
8
causes confusion and surprise to drivers. . . . It is foreseeable at
this location that drivers will be traveling at downhill speeds
which can easily [operate and] approach 45 mph.” City objected
to this portion of the expert’s declaration on the ground it was
irrelevant, it lacked foundation, there was no basis for such an
opinion, it was speculative, and it was outside of the scope of the
expert’s permitted testimony. The trial court sustained the
objection, specifically finding “Ruzak’s declaration that drivers
can easily reach speeds of up to 45 mph on the downhill grade is
not relevant to this particular case, where the driver was driving
at less than half that speed.”
We agree this portion of the expert’s declaration is
irrelevant. Here, the only evidence of the driver’s speed was his
deposition testimony that he was driving approximately 15 to 20
miles per hour. City’s objection to the expert’s statement about
cars speeding down Overland was properly sustained. (Powell v.
Kleinman (2007) 151 Cal.App.4th 112, 126–27 [“ ‘an expert’s
opinion that something could be true if certain assumed facts are
true, without any foundation for concluding those assumed facts
exist’ [citation], has no evidentiary value”].)
If we excise the portion of the expert’s statement regarding
speeding, the remaining factor — it is undisputed the road sloped
downhill — cannot form the basis for a dangerous condition.
“The mere fact that a road slopes downhill does not mean that it
is dangerous. To hold the defendant liable for the natural
topography of the land would be to impose strict liability on the
defendant as an insurer of the safety of its streets. The City
would be required to either grade all of its streets level in hilly
areas or to forego development in such areas. An ordinary,
natural topographical condition is not a dangerous condition of
9
property within the meaning of the governmental tort liability
law.” (Mittenhuber v. City of Redondo Beach (1983)
142 Cal.App.3d 1, 7 (Mittenhuber).)
Even if we were to conclude the trial court abused its
discretion in excluding the testimony on speeding, the
Mittenhuber court rejected this precise argument. There, the
plaintiff alleged, “[v]ehicles on Phelan approaching the
intersection from the north travel downhill, often resulting in
excessive speed” and “[c]hildren on bicycles approaching the
intersection from the east travel downhill, often resulting in
excessive speed and making it extremely difficult for them to stop
quickly.” The court concluded these factors, even if true, did not
make the intersection inherently dangerous. (Mittenhuber,
supra, 142 Cal.App.3d at p. 7.) We agree.
ii. Trees and Foliage
Plaintiffs next claim trees and foliage along the street
contributed to a dangerous condition because they obscured
overhanging streetlights and caused shadows to fall over the
roadway once it was dark. According to plaintiffs’ expert, these
shadows confused drivers. The driver also testified regarding the
trees along Overland.
The driver testified, “the crosswalk itself is -- it doesn’t lend
itself -- to a clear appearance, . . . where you . . . can really
delineate everything. . . there’s so many things going on, the trees
and the other things and the steepness and the rest of it, that it’s,
you know, for me, I was always, you know, cautionary just when I
went there to slow down.” When asked to clarify what he meant
by “trees,” he responded, “To the right is where -- which I thought
where she came from -- were trees. And then there’s some
houses, some apartments, and some other -- and then on the left,
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there’s a store and some other thing -- something like that. And
so the combination of those things make, you know, make -- I
always slow down because -- it was one of those things.” City
objected to the driver’s testimony on the ground his testimony
about a “clear appearance” and “so many things going on” was
vague and ambiguous. The trial court sustained these objections.
Relying in part upon the driver’s testimony, plaintiffs’
expert attributed the driver’s failure to see Rupasinghe to a
combination of factors, including “shadows on the roadway,
overhanging foliage, darkness, inconsistent and/or difficult
lighting conditions.” The expert explained, “The problem with
the lighting conditions was the City of Los Angeles owned and
maintained trees, which hung out over the roadway and
contributed to shadows on the streets. These obscured the view
of the lamps. The light from those lamps was also obscured as a
vehicle traveled down southbound Overland. The problem with
the leaves partially blocking the streetlight is it created spots and
shadows at or near the intersection where the subject accident
occurred. This is demonstrated in the photos attached to the
Deposition of [the driver] as Exhibits 9-12 and his testimony
regarding the shadows on the roadway. The result of the partial
blockage of the light fixture is to cause dark spots in the area
which contributes to drivers (sic) confusion in real time.” The
trial court sustained City’s objections to these portions of the
expert’s declaration on the grounds they lacked foundation and
were speculative.
We need not determine whether the court erred in these
evidentiary rulings. Even if we consider this evidence, it does not
create a disputed material fact that a dangerous condition existed
due to the trees and foliage.
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Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41 is
instructive. According to the Huerta plaintiffs, the relative
darkness caused by a tree casting a shadow at one end of a
crosswalk created a peculiar condition that made it especially
difficult for drivers to see pedestrians in that area. The plaintiffs
relied on Antenor v. City of L.A. (1985) 174 Cal.App.3d 477, 483
(Antenor) to assert this peculiar condition placed a duty on the
city to light the street in order to make the streets safe for travel.
(Huerta, supra, at p. 50.)
The Huerta court found the tree and its shadow did not
necessitate additional or different lighting under Antenor,
especially since there was no evidence the tree blocked the
driver’s view of the crosswalk or anyone in it. (Huerta, supra,
39 Cal.App.5th at p. 50.) The Huerta court relied on the
reasoning in Mixon v. Pacific Gas & Electric Co. (2012)
207 Cal.App.4th 124 (Mixon): “The lighting configuration at the
subject intersection and surrounding area is not unlike many
urban areas where there are numerous light sources, public and
private, and gradations of light intensity. A public entity, which
has no general duty to light its streets, cannot be held liable for
failing to provide a consistent level of lighting between one street
and the next.” (Huerta, supra, at p. 51.) The Huerta court found
the failure to light the entire crosswalk equally did not create a
dangerous condition. (Ibid.)
We find this analysis apt. City is not liable for failing to
provide a consistent level of lighting along Overland, especially
when there is no evidence any of the trees or foliage blocked the
driver’s view of the crosswalk or anyone in it. The driver
admitted he could see the crosswalk as he drove on Overland but
it was “not prominent.” He denied any of the trees blocked his
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view of the street or the crosswalk. Indeed, he testified he failed
to see Rupasinghe only because she was a small woman, she wore
dark clothing, and it was generally dark. He admitted he could
not think of any other reason for his failure to see her. Plaintiffs’
expert did not address this testimony. Given these facts, even
considering the evidence the trial court excluded, Huerta and
Mixon tell us a dangerous condition is not created from trees and
foliage casting shadows.
iii. Glare of Oncoming Vehicular Traffic
Plaintiffs also contend the oncoming glare of headlights
from northbound traffic forced the driver to focus on the road
immediately ahead of him instead of 800 feet away, where the
crosswalk is located. This argument is meritless.
“Most obviously, a dangerous condition exists when public
property is physically damaged, deteriorated, or defective in such
a way as to foreseeably endanger those using the property itself.
[Citations.] But public property has also been considered to be in
a dangerous condition ‘because of the design or location of the
improvement, the interrelationship of its structural or natural
features, or the presence of latent hazards associated with its
normal use.’ ” (Bonanno, supra, 30 Cal.4th at pp. 148–149, italics
omitted.) Plaintiffs fail to explain how lights from oncoming
traffic, which the trial court accurately characterized as “a fact of
life when driving,” constitutes a latent hazard associated with the
normal use of the Overland and Rose intersection. In fact, the
driver did not testify the lights from oncoming traffic caused his
failure to see Rupasinghe in time. He instead testified he did not
see Rupasinghe because she was small and wore dark clothing on
a dark evening.
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iv. Smart Crosswalk System
Plaintiffs next argue the installation of a smart crosswalk
system would have alleviated or minimized the dangerous
condition at the intersection. They rely on their expert’s opinion
and Hurley v. County of Sonoma (1984) 158 Cal.App.3d 281 for
this proposition.4
The fatal flaw in plaintiffs’ argument is that it assumes
there exists a dangerous condition that a smart crosswalk system
would eliminate or minimize. But none of the factors identified
by plaintiffs create a dangerous condition. A smart crosswalk
system was not required to alleviate a dangerous condition that
did not exist.
Hurley, supra, 158 Cal.App.3d at page 286, relied upon by
plaintiffs, is distinguishable. In Hurley, the plaintiff’s traffic
engineer opined a guardrail would have minimized the injuries
suffered by the plaintiff when he crashed into a concrete
abutment. The traffic engineer relied, in part, on a requirement
in the State Traffic Manual that a guardrail be installed in
similar places along state highways even though the accident
occurred on a county highway. (Ibid.) Summary judgment was
granted to the defendant. The Court of Appeal reversed, finding
“the proximity of the abutment to the highway, the slope of the
highway, the absence of lighting and the possible lack of warning
devices could combine to create a dangerous condition, given the
foreseeability of vehicles, for a variety of reasons, straying off the
road. Respondent’s traffic engineers declared three other single
car accidents occurred in the general vicinity of appellant’s
4 A smart crosswalk system is a series of flashing lights
across the roadway that alerts a motorist to the presence of a
pedestrian in the crosswalk.
14
accident when the cars went off the highway and struck an
abutment. Respondent could therefore foresee injury occurring to
occupants of a vehicle which collides with an abutment after
leaving the highway, under the same or similar circumstances.”
(Ibid.)
Hurley does not stand for the proposition that the lack of
guardrails contributed to the dangerous condition. Nor does it
have anything to do with smart sidewalks. Instead, the
dangerous condition in Hurley already existed and a guardrail
would have eliminated or minimized the danger.
Plaintiffs’ argument boils down to: a smart crosswalk
system would make the intersection safer. That may be true but
it does not establish government tort liability. “A public entity is
not required to go beyond the elimination of danger and
maximize every safety precaution.” (Mixon, supra,
207 Cal.App.4th at p. 134.) “It has likewise been held that
liability is not to be fastened upon a municipality merely because
it may appear that certain property, in nowise dangerous either
in its construction or intended use, could possibly be made safer
by other means.” (Belcher v. San Francisco (1945) 69 Cal.App.2d
457, 463.)
v. Combination of Factors
Plaintiffs contend it is error to treat each factor individually.
They claim the confluence of factors constituted a “trap,” which
resulted in a dangerous condition. (Joyce v. Simi Valley Unified
School Dist. (2003) 110 Cal.App.4th 292; Robinson v. Six Flags
Theme Parks (1998) 64 Cal.4th 1294, 1305.) While we agree in
theory that a combination of factors may create a dangerous
condition, plaintiffs have failed to demonstrate that this
particular combination, along with the other undisputed facts in
15
this case, defeat City’s showing that a dangerous condition does
not exist as a matter of law.
5. The Prior Accidents Do Not Demonstrate a Dangerous
Condition
Plaintiffs also claim the accident history at the Overland
and Rose intersection is evidence of a dangerous condition
because the facts of the prior accidents show there is a
substantial risk of injury to individuals exercising due care while
using the crosswalk. We disagree.
It is well-settled that evidence of previous accidents may be
admitted to prove the existence of a dangerous condition if the
conditions under which the alleged previous accidents occurred
were the same or substantially similar to the one in question.
(Salas v. Department of Transportation (2011) 198 Cal.App.4th
1058, 1072 (Salas).) “While there must be substantial similarity
to offer other accident evidence for any purpose, a stricter degree
of substantial similarity is required when other accident evidence
is offered to show a dangerous condition; ‘ “the other accident
must be connected in some way with that thing. . . .” ’ ” (Id. at
p. 1072.) In Salas, the court found no similarity between the
prior accidents and the pedestrian accident of the type at issue
because “none of the proffered accidents even involved a
pedestrian, much less a pedestrian who stopped while crossing
the street and then changed direction.” (Ibid.)
In Mixon, the court found two prior accidents to be
dissimilar: one occurred during daylight and the vehicle and
pedestrian were at different locations of the intersection; the
second involved a drunken pedestrian walking in front of a
moving car. (Mixon, supra, 207 Cal.App.4th at p. 138.) The court
found these accidents, even if admissible, did not establish a
16
dangerous condition “given the high traffic volume that has
passed through the intersection without incident.” It was
undisputed that traffic volume at the intersection in Mixon was
between 7700 and 9500 vehicles per day, 2.8 to 3.5 million
vehicles per year, and 7.8 million vehicles in the five years before
the accident. (Ibid.)
Likewise, it is undisputed there were three pedestrian-
involved traffic collisions at the Overland and Rose intersection
between 2009 and November 30, 2014.5 On June 1, 2010, at
8:55 p.m., a vehicle traveling southbound on Overland unlawfully
passed a vehicle stopped at the crosswalk and hit the pedestrian
in the crosswalk. On February 16, 2013, at 1:35 a.m., the
admittedly distracted driver of a vehicle driving southbound on
Overland struck a pedestrian walking in the crosswalk. On
May 21, 2013, at 4:35 p.m., a vehicle traveling southbound in the
number one lane passed a stopped vehicle in the number two lane
and struck a pedestrian who had begun to run in the crosswalk.
Leaving aside whether any of these prior accidents were
sufficiently similar to the one involving Rupasinghe, it is
undisputed that approximately 65 million vehicles and 1.2
million pedestrians passed through the same intersection without
incident during that same five-year period. The facts here are
strikingly similar to Mixon and we follow its reasoning to
5 Plaintiffs also refer in their briefs to four prior accidents
occurring between 2003 and 2014 at the intersection that
involved pedestrians who were not properly in the crosswalk.
Neither expert discussed these incidents, much less addressed
how they were sufficiently similar to Rupasinghe’s accident to be
admissible. Accordingly, we do not consider them. (Salas, supra,
198 Cal.App.4th at p. 1072.)
17
conclude that as a matter of law the prior accident history at this
intersection was not evidence of a dangerous condition.
Anticipating our conclusion, plaintiffs state the absence of
previous accidents is not proof that a dangerous condition does
not exist. (Murphy v. County of Lake (1951) 106 Cal.App.2d 61,
65.) We agree with that statement in concept, but the issue
before us is whether there was affirmative evidence of a
dangerous condition to create a triable issue of fact and overcome
City’s showing. The absence of all sorts of things is not evidence
that a dangerous condition does not exist. More to the point, City
does not rely solely on the lack of a significant accident history to
argue the Overland and Rose intersection is not dangerous.
6. The Subsequent Remedial Measures Were
Inadmissible
Lastly, plaintiffs argue the subsequent decision to install a
safety warning light at the intersection should have been
admitted to impeach City’s expert’s opinion that the intersection
was not a dangerous condition. (Love v. Wolf (1967)
249 Cal.App.2d 822, 831.)
The record shows the trial court sustained City’s objection
to the evidence of subsequent remedial measures under Evidence
Code section 1151. That statute provides: “When, after the
occurrence of an event, remedial or precautionary measures are
taken, which, if taken previously, would have tended to make the
event less likely to occur, evidence of such subsequent measures
is inadmissible to prove negligence or culpable conduct in
connection with the event.” (Evid. Code, § 1151.) The trial court
did not abuse its discretion in excluding this evidence. (Sanchez
v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 191–192
[subsequent remedial measure properly admitted into evidence
18
for impeachment only if the witness himself ordered the
subsequent remedial measure].)
DISPOSITION
The judgment is affirmed. City to recover its costs on
appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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