Russell v. Zitani CA1/3 ( 2023 )

Filed 3/13/23 Russell v. Zitani CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
TROY ALLEN RUSSELL et al.,
Plaintiff and Respondent,
A162798, A162878
v.
KATHLEEN ANN ZITANI et al., (Alameda County
Case No. RG18916045)
Defendant and Appellant.
A car driven by Kathleen Zitani collided into Troy Russell, a
pedestrian, at an intersection in Oakland. Russell suffered debilitating
injuries. Russell and his spouse (collectively “the Russells”) sued Zitani, the
City of Oakland (“the City”), and others.
The Russells brought a premises liability claim against the City based
on a dangerous condition of public property, specifically that overgrown
vegetation in a center median affected the sightlines between Zitani and
Russell and was a substantial factor in the accident. Zitani filed a cross-
complaint against the City for indemnity. The trial court granted the City’s
motion for summary judgment, finding that no triable issue existed on the
issue of causation because Zitani testified in deposition that solar glare
prevented her from seeing Russell.
In separate appeals that we have consolidated for purposes of
argument and this opinion, the Russells and Zitani (collectively “Appellants”)
1
each contend the trial court erred in granting the City summary judgment
because the evidence raised a triable issue of fact regarding whether the
vegetation in the median was a substantial factor leading to the collision. As
the evidence – including all reasonable inferences drawn from the evidence –
would allow a trier of fact to find causation, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident
The accident giving rise to this case occurred at the intersection of 40th
Street (“40th”) and Opal Street (“Opal”) in Oakland. 40th is a four-lane road
running generally east-west, with two lanes in each direction. Opal, a two-
lane street running generally north-south with one lane in each direction,
intersects 40th. At this intersection, traffic on 40th is unregulated, whereas
stop signs on Opal regulate traffic. On the east side of the intersection on
40th, there is a marked ladder crosswalk but no crosswalk on the west side.
On 40th, between Opal and Shafter Avenue – the street one block west of
Opal – a median with vegetation separates the two directions of traffic (the
“Median”). Several of these features are depicted in the following diagram,
an aerial image of the intersection from Google Earth1:
1 This diagram was included in the City’s summary judgment motion as
an exhibit to the declaration of Kristen White, a mechanical engineer who
inspected, measured, and photographed the intersection.
2
In this section of 40th, the posted speed limit is 30 mph.
With respect to the accident, the following facts are undisputed. On
September 28, 2017, sometime between 7:45 a.m. and 8:00 a.m., Zitani was
driving her Honda Civic to work and turned onto 40th. For the last 18
months, Zitani had driven this same route to work four mornings each week
and was familiar with the road. As she proceeded east on 40th, the sun
began to obscure her vision, which she anticipated at this time of the year.
She lowered the visor and slowed to 25 mph. As was her habit while driving,
Zitani constantly scanned the road ahead of her to look for upcoming traffic
signals and pedestrians in crosswalks. Even with the sun’s glare, she could
see the road ahead of her.
While Zitani was traveling eastbound on 40th in the left lane, Troy
Russell was walking south on Opal and began crossing 40th. While Russell
3
was crossing, Zitani’s car struck him. Russell flew into the windshield, rolled
down the hood of the car, and landed on the ground semiconscious and
bleeding from his head. Zitani’s car stopped just east of the marked
crosswalk.
B. The Lawsuit
On August 8, 2018, the Russells sued Zitani, the City, and others,
asserting causes of action for negligence, premises liability based on a
dangerous condition of public property, and loss of consortium, among other
claims. The premises liability claim in particular alleged that Zitani and
Russell did not see each other due to the dangerous condition of the
intersection. The claim was based on overgrown vegetation in the Median
which purportedly interfered with sightlines and caused the accident. It was
further alleged that Russell had sustained catastrophic injuries including a
massive traumatic brain injury that had left him with permanent and
debilitating injuries. On October 4, 2018, the State Compensation Insurance
Fund (“SCIF”), the workers’ compensation carrier for Russell’s employer, filed
a separate action, Case No. RG18933422, seeking reimbursement of workers’
compensation benefits paid for injuries suffered by Russell.
In its answer to the Russells’ complaint, the City generally denied the
allegations and asserted several affirmative defenses. Zitani did the same.
Zitani also filed a cross-complaint against the City and other defendants for
equitable indemnity, apportionment of fault, and declaratory relief. She
claimed that if she were held liable for any damages sustained by the
Russells, she would be entitled to indemnity from the City and the other
cross-defendants with respect to any losses she might sustain as a result of
their negligence.
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C. Discovery
In June 2019, Zitani was deposed. The following exchange took place
between the Russells’ counsel and Zitani:
Q: So is it your testimony that you didn’t see [Russell] until you
effectively hit him?
A: That is my testimony.
Q: And simultaneously you applied your brakes?
A: Yes.
Q: Now, I know accidents all happen in a blink of the eye. So --
A: I didn’t see him. I saw him as a I hit hm. That’s all I could tell
you.
Q: I take it you were being as careful as you could be when you were
driving?
A: Yes.
Q: And, in fact, in your mind’s eye you don’t think there’s anything
you could have done to prevent the incident?
A: No.
Q: Correct?
A: Correct. I mean in hindsight, yeah, I could be going five miles an
hour but that that moment, no. At that moment I – the sun was just glaring.
I seriously didn’t see him. I didn’t – I didn’t see him crossing. I just realized
that when I saw him, my car hit him. That’s the only time I saw him.
...
Q: Just to be clear, you didn’t see my client at any time until you
struck him, correct?
A: Correct.
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Later, the following exchange took place between counsel for the City
and Zitani:
Q: So the sun glare caused you to not see Mr. Russell; is that right?
[Objections from other counsel]
A: Yeah.
[Objections and instructions from counsel]
A: It was the sun.
Q: Okay. Was there anything else other than the sun that caused
you to not see Mr. Russell?
[Objections from counsel]
A: No, I don’t.
Plaintffs’ Counsel: Pardon me, the answer was no, I don’t know?
A: No. No, it was the sun. I tell you it was the sun. I hit him
because I didn’t see him. The sun was right there and I didn’t see him.
Q: Okay. Was there anything -- any other condition on the road that
you felt caused the incident?
[Objections]
A: No.
....
Q: Okay. And was there anything else other than your not seeing
Mr. Russell that caused the accident?
A: Just the sun.
Q: Okay. So other than the glare from the sun, was there any other
obstruction to your vision?
[Objections]
A: No.
....
6
Q: Okay. So in your opinion, is there anything – anything that the
City could have added or taken away on the road that would have made it
safer for you?
[Objections]
A: I’d say a stoplight right there.
In later questioning by counsel for SCIF, counsel presented Zitani with
exhibits represented to be depictions of the 40th and Opal intersection,
including the following Exhibit 4:
Zitani stated that Exhibit 4 looked like a fair and accurate description of the
median on 40th in her direction at the time of the accident but acknowledged
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she did not know where Opal was in the image. SCIF counsel and Zitani
proceeded to have the following exchange:
Q: Okay. Do you recognize the vegetation in Exhibit 4 to be an
accurate depiction of the vegetation leading up to Opal Street in your
direction of travel at the time of the accident?
[Objections]
A: Um, I mean if you’re asking me am I aware of the vegetation, I’m
aware of the vegetation. If you’re asking me do I know exactly where the tree
was in comparison to Opal, I really can’t tell you. It has nothing to do with
anything that caused this incident.
....
Q: Okay. Now, do you agree that – if you were looking down
perspective in Exhibit 4 –
A: Uh-huh.
Q: – some of the vegetation, including that very large tree, blocks
your view of part of the crosswalk coming from Opal Street?
[Objections]
A: Yeah, I – I –I think I pretty much answered. I – I – if it’s
possible, yes, anything is possible, but what caused the accident was the sun,
the direct sun through my window at the time I was entering the crosswalk.
I didn’t see him and --
Q: Sure. When you say “possible,” you’re saying it’s possible that
the vegetation obstructed your view of Mr. Russell as he was crossing the
crosswalk, correct?
[Objections]
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A: I really don’t know how to answer that. I don’t – if you want a
truthful answer, I don’t think it was the vegetation that impeded my view. It
was the sun.
...
Q: -- regardless of what time it was, whether it was the time of the
accident or before the accident, would you agree that assuming that [Exhibit
4] is an accurate depiction of 40th Street, 40th Street coming up to Opal
Street in your direction of travel, that the vegetation, including that very tall
tree or the tall tree, blocks the driver’s view of part of the crosswalk coming
across Opal Street?
[Objections and instructions from counsel]
A: Yeah. I mean is it possible, yes. If – if that’s your – if you’re
saying – I could see where it can impede vision, but right after this tree
there’s a small clearing. I don’t remember vegetation to be a problem.
....
Q: Okay. And would you agree that when you are scanning while
you’re behind these trees, that at least at some part of those times your view
of Opal Street and the crosswalk would have been obstructed at least part of
the cross walk?
[Objections]
A: Um, I mean I can’t say for sure. It wasn’t the trees that – that
impeded my vision, it was the sun.
....
Q: So at the time of the accident just prior to the accident
happening, maybe a few seconds before –
A: (Nods head up and down)
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Q: -- are you saying the glare of the sun was so complete that you
couldn’t see anything or can you describe to me exactly what you could and
couldn’t see?
[Objections and instructions]
A: . . . I mean yes, the sun was blinding. The sun was blinding
enough that I didn’t see.
Q: Sure. But could you see – what could you see?
A: I mean I could see the road. I just didn’t see the man – I didn’t
see Mr. Russell.
Q: Okay. In terms of what you could see, you could see the road.
How far ahead could you see?
A: Oh, I don’t know. I mean it’s kind of I’m automatic pilot when
I’m on that road because I take it a lot. So, um, truthfully, I can’t really
answer how. I mean the sun was pretty blinding in that intersection enough
that I didn’t see him. So it had to be pretty blinding for me not to see him.
....
Q: . . . . Ms. Zitani, if we can go back to Exhibit 4. If you look at that
and we go back to the hypothetical where you’re driving down the perspective
shown in 40th Street?
A: Uh-huh.
Q: Would you agree that if you were driving from that perspective
before the shrubbery and the high trees that your view of the entire left side
of the crosswalk in terms of your perspective driving down that street would
have been obstructed?
A. Yes.
[Objections]
Q: You said yes, right?
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A. Yes, I did. If --- from this photo, looking at the photo, if I was
driving down, I would not see what was in my left side.
Q: And it’s true as well that you would not have been able to see a
pedestrian crossing in that left side from that perspective, correct?
[Objections]
A: So if it’s from the photo as -- yes, it would be very
difficult to see a pedestrian crossing the crosswalk from this photo.
Q: Sure.
A: If I was driving down this road.
Q: Sure. And we’re talking about you driving down 40th Street in
the perspective shown in Exhibit 4?
A: Correct . . . [¶] . . . I mean we’re looking right at it. So it’s very
obvious, everybody can agree.
In February 2020, Russell was deposed but could not testify about the
collision because he had no memory of the accident.
Other discovery established that beginning in 2005, the City allowed a
private citizen to “adopt” the Median for maintenance through an “Adopt-a-
Spot” program by which citizens can volunteer to maintain gardening for an
area that would otherwise fall to the City’s Public Works Department.
The record also contains at least two documented car accidents at that
intersection, one in August 2009 and another in June 2013. The City
disputes whether the vegetation in the Median played a role in either
accident.
In addition, a number of complaints about the vegetation had been
lodged with the City over the years. In December 2013, an employee in the
City’s Public Works Department contacted the City’s call center to pass along
the following citizen report: “Citizen is reporting overgrown vegetation in the
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Median on the corner of 40th Street and Opal Street. Per citizen, the
overgrown vegetation obstructed the view of other cars and caused a vehicle
accident.” In August 2016, a citizen complaint was lodged with the City
about overgrown vegetation “along the 40th Street Corridor,” observing they
“are not regularly trimmed” and that in some instances “[t]he weeds are
taller than full grown people.” In April 2017, a resident who had been living
near 40th and Opal for six years filed another complaint with the City about
visibility issues relating to overgrown vegetation on the Median. He observed
that there is a “wall of vegetation, trees, shrubs, and bushes” on the Median
“which prevents drivers and pedestrians in [the] area from seeing each
other.”
Additional witnesses were deposed, and other written discovery
completed.
D. The City’s Summary Judgment Motion
In June 2020, the City moved for summary judgment, arguing there
were no disputed issues of material fact as to the Russells’ premises liability
causes of action. In its view, the City could not be held liable for a dangerous
condition of public property because no dangerous condition of public
property existed at the time of the accident, and no dangerous condition of
public property caused the accident. In so arguing, the City relied on Zitani’s
deposition testimony, in which she repeatedly reiterated that she did not see
Russell until the moment of impact due to the sun being in her eyes as she
approached the intersection. The City asserted that there was no evidence
that any Median vegetation obstructed Zitani’s view of Russell.
In opposing the motion, the Russells argued that triable issues of fact
existed as to whether the overgrown vegetation in the Median constituted a
dangerous condition of public property and whether it was a substantial
12
factor in causing the Russells’ harm. They observed that there was a wall of
vegetation on the Median that prevented eastbound drivers on 40th (like
Zitani) from seeing southbound pedestrians in the northern half of the
crosswalk at Opal (like Russell), and vice versa, until a collision was
imminent and hence not possible to completely avoid. In their view, these
obscured sightlines caused by the vegetation constituted a dangerous
condition.
On the issue of causation, the Russells argued that Zitani’s claim that
she did not see Russell was contradicted by other evidence. Rajeev Kelkar,
their accident reconstructionist, asserted in his declaration that the physical
evidence, which included the points of rest of Zitani’s car and Russell’s
unconscious body, showed that Zitani had seen Russell prior to the collision,
which meant the sun did not completely disable her and thus could not have
been the sole cause of the collision.
As part of his explanation, Kelkar introduced the concept of perception-
reaction time, which is the time it takes for an individual to perceive and
react to a potential hazard or situation. For the driver of a car, the
perception-reaction time to an unexpected event is typically in the 1–2 second
range, and could be longer in certain circumstances (e.g., difficulty of
perceiving the hazard, complexity of the situation and the potential reaction
options). He added that drivers sometimes look in different directions and
locations when driving, and these “looking” tasks take additional time. With
these concepts in mind, Kelkar observed that it would have taken Russell 12
seconds to walk the 55 feet from the corner to the point he was struck by
Zitani’s car. In his view, the vegetation in the Median obscured the view of
an oncoming eastbound vehicle to an outbound pedestrian for a significant
portion of the time that the pedestrian was in the crosswalk. At that
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location, moving at normal speeds, “the vehicle driver and pedestrian have a
line of sight to each other for approximately 5 seconds.” In those 5 seconds,
drivers could be scanning different portions of the intersection looking or
looking at vehicle gauges or mirrors and reasonably not see a pedestrian. He
added that “[w]hat would have been 10-12 seconds of available line of sight
(with no vegetation or vegetation above which a line of sight existed for
drivers and pedestrians) is effectively reduced by half or more by the
vegetation present at the time of the subject accident.”
While Kelkar acknowledged there was “undoubtedly . . . solar glare” in
Zitani’s eyes as she approached the 40th and Opal intersection, he opined
that it was not disabling. Zitani was able to see Russell before impact,
brought her visor down to reduce glare, and did not slow down below 25 mph.
He concluded that “[t]he vegetation in the center median . . . provides a line
of sight obstruction that eliminates a significant portion of the available time
that Ms. Zitani (in particular, and eastbound drivers in general) and Mr.
Russell (in particular, and southbound pedestrians in general) have to see
each other while pedestrians are in the crosswalk and drivers are proceeding
eastbound . . .”
The Russells asserted that a jury could reasonably conclude that in
addition to the sun being in her eyes, Zitani was unable to see Russell until it
was too late to avoid a collision because in the seconds before impact he was
hidden from her view by the wall of vegetation on the Median. The Russells
also argued the wall of vegetation prevented Russell from seeing Zitani’s car
and deprived him of the opportunity to take appropriate evasive action to
avoid a collision.
In opposition to the City’s motion, Zitani similarly argued that had the
vegetation not been in the Median, she would have seen Russell before the
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sun became an issue and slowed down. She asserted there was a triable
issue as to whether the vegetation blocked Zitani’s view of the left side of the
crosswalk and Russell walking in it, such that it reduced her ability to
register Russell as an approaching hazard and respond to him prior to
encountering the solar glare. She pointed to parts of her deposition
testimony in which she stated that it would be difficult for a driver on 40th to
see the northern side of the ladder crosswalk due to the vegetation.
In March 2021, following the City’s reply and a hearing, the trial court
issued a five-page written order granting the City’s motion for summary
judgment. As to first issue (dangerous condition), the court found: “There is a
triable issue of fact whether the vegetation in the median strip was a
dangerous condition of public property. [¶] . . . [¶] The vegetation arguably
blocked corner visibility and was arguably inconsistent with the guidelines in
the Caltrans Highway Design Manual given the speed of vehicles on 40th
Street.” The court noted that it considered the math of average vehicle speed
on 40th, driver visibility to southbound vehicles on Opal, and driver visibility
to pedestrians on Opal stepping onto 40th, and found it was “arguable that
the vegetation was a dangerous condition of public property.” In addition,
citing evidence of prior complaints about the vegetation and prior vehicle-
vehicle accidents in part caused by the vegetation, the court concluded there
was a triable issue of fact as to whether the Russells could prove there was
“reasonably foreseeable risk,” another element of the premises liability claim.
On the issue of causation, however, the court concluded that “[t]he
undisputed evidence demonstrates that the vegetation in the median strip
was not a substantial factor in causing the accident.” The court explained:
“Most significant for the [City’s] motion, [Zitani] testified repeatedly that she
could not see because the sun was in her eyes.” Rejecting the argument that
15
the vegetation may have also been a cause of the accident, the court stated,
“[Zitani] testified at her deposition that the vegetation was not the cause of
the accident,” and cited her testimony that she did not remember the
vegetation to be a problem. The court further determined that the argument
that the vegetation might have impaired Zitani’s ability to see Russell walk
across the westbound lane while she was driving east on 40th Street was
“speculative and contrary to [Zitani’s] clear testimony.” It also found the
argument that the vegetation might have impaired Russell’s ability to see
Zitani’s car approaching to be speculative given Russell had no recollection of
the accident. As a final note, the court observed that when Russell reached
the Median, vegetation would not have obscured his view of an oncoming
vehicle.
The court entered judgment in the City’s favor and dismissed with
prejudice the Russells’ complaint against the City. The Russells and Zitani
separately appealed the judgment. We consolidated the two appeals for
purposes of oral argument and decision.
DISCUSSION
A. Applicable Law
“The purpose of summary judgment under Code of Civil Procedure
section 437c ‘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.] ‘Summary
judgment is appropriate only “where no triable issue of material fact exists
and the moving party is entitled to judgment as a matter of law.” ’ [Citation.]
A moving defendant bears the burden to show that the plaintiff cannot
establish one or more essential elements of the cause of action, or that there
is a complete defense to that cause of action. [Citations.] If the defendant
16
meets this 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 defense
thereto.’ ” (Hassaine v. Club Demonstration Services, Inc. (2022) 77
Cal.App.5th 843, 849–850.) A court may grant a motion for summary
judgment only if there is no triable issue of material fact and the moving
party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); see also Johnson v. Superior Court (2006) 143 Cal.App.4th
297, 304].)
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been
made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
334.) We “consider all of the evidence” and all of the “inferences” reasonably
drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the
evidence and inferences “in the light most favorable to the opposing party.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar);
Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177
Cal.App.4th 251, 255 [“Because a summary judgment denies the losing party
its day in court, we liberally construe the evidence in support of that party
and resolve doubts concerning the evidence in that party’s favor.”].)
Government Code section 835 “is the sole statutory basis for a claim
imposing liability on a public entity based on the condition of public property.
[Citation.] Under section 835, a public entity may be liable if it creates an
injury-producing dangerous condition on its property or if it fails to remedy a
dangerous condition despite having notice and sufficient time to protect
against it.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438–439
(Brenner).) To recover in an action against a public entity under Government
17
Code section 835, a plaintiff must prove: “(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, supra, at p.
439.)
To establish causation, a plaintiff must show that a physical condition
of the public entity’s property was a “ ‘substantial factor’ ” in bringing about
his or her harm. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.)
“ ‘ “[C]ausation . . . is ordinarily a question of fact which cannot be resolved by
summary judgment. The issue of causation may be decided as a question of
law only if, under undisputed facts, there is no room for a reasonable
difference of opinion.” ’ [Citation.] Causation must be established by
nonspeculative evidence.” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 212
(Kaney).)
B. Zitani’s Deposition Testimony
As an initial matter, Zitani argues that certain questions posed to her
at deposition lacked foundation, were ambiguous, and forced her to express
legal opinions. She asserts that this court should sustain objections made at
the deposition and disregard her answers.
We will not consider this argument. “Evidentiary objections not made
at the [summary judgment] hearing are deemed waived.” (Code Civ. Proc.,
§ 437c, subd. (b)(5).) While counsel lodged numerous objections to various
questions asked of Zitani during her deposition, there is nothing in the record
indicating that Zitani ever raised these objections in the trial court in
opposing the City’s summary judgment motion. She fails to cite to any
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portion of the record where she or the Russells objected to these questions in
the course of the summary judgment proceedings, and we located no such
objections in our review. Accordingly, we conclude Zitani waived any
objection to the admission of her deposition testimony, and we shall consider
her testimony fully in our analysis of causation, the crux of this appeal, which
we turn to now.
C. Causation
The City as the moving party met its initial burden on summary
judgment and thus shifted the burden to Appellants to show that a triable
issue of material facts exists as to the causation element of the premises
liability claim. Based on all admissible evidence, we conclude Appellants
made a showing sufficient to survive summary judgment. (Crouse v. Brobeck,
Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524 [“Doubts as to the
propriety of granting the motion must be resolved in favor of the party
resisting the motion.”].)
1. Whether Vegetation Prevented Zitani from Seeing
Russell
Here, the trial court hung its ruling on a finding that the accident was
caused, solely, by solar glare. However, a trier of fact could reasonably infer
that the solar glare was not entirely disabling to Zitani as she approached the
40th and Opal intersection. Zitani testified that she could still see the road
as she drove up 40th and lowered her visor, which would have aided in
blocking glare. She did not further reduce her speed below the slower 25 mph
pace and continued to drive, which a driver completely blinded would be
unlikely to do. Further, her reduced speed (25 mph), her car’s place of rest
after striking Russell (12 feet after the crosswalk per the police report), and
Kelkar’s testimony on the stopping distance that would have been required at
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that speed had Zitani only started braking upon impact (60-85 feet)
sufficiently established that Zitani saw and began reacting to Russell before
impact, rather than right at the moment of impact as she had testified.
Indeed, the City agreed it was an undisputed fact that the physical evidence
indicated Zitani saw Russell before impact. From this evidence, a trier of fact
could reasonably infer that the solar glare was not a complete impediment to
Zitani’s vision that foreclosed other causes contributing to the accident.
A trier of fact could also reasonably infer that the vegetation in the
Median prevented Zitani from seeing and responding to Russell sooner.
Through the declaration of Kristen White, the mechanical engineer who
inspected, measured, and photographed the 40th and Opal intersection, the
City provided key measurements and features of the accident area. This
evidence showed that the east side of the Median narrowed to accommodate a
left-turn lane for cars seeking to make a left onto Opal from 40th. This
narrow part of the median contained short succulents and bushes that were
no more than 3 feet high. There was also evidence showing that the middle
of the Median was wider and had taller and thicker bushes and trees. The
record contains two photos near the intersection taken by a police evidence
technician from a westward view which depict the Median vegetation on the
day of the accident. One photo (OCA 00031) depicts some of the taller
vegetation in the Median:
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The evidence also established that for an eastbound driver on 40th, the
vegetation in the Median obstructed the driver’s view of a person standing on
the northeast corner of the intersection at 40th and Opal. In her declaration,
White stated: “For an eastbound driver on 40th Street in the number one
lane starting at a distance of 140 to 145 feet from the crosswalk, there is no
visual obstruction to a person standing on the northeast corner of the
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intersection . . .”, suggesting that at a distance greater than 140 to 145 feet
from the crosswalk – at the wider part of the Median – there would be a
visual obstruction to a person standing on that corner. (Emphasis added.)
Zitani herself testified that, based on Exhibit 4, if she were driving down 40th
her view of the entire left side of the crosswalk at the 40th and Opal
intersection would have been obstructed by the vegetation, she would not
have been able to see her left side, and it would have been difficult to see a
pedestrian crossing 40th.
The Russells’ traffic engineer, Laurence Neuman, measured the sight
distance from the corner of the intersection at the time of the accident to be
114 feet, when in his view the minimally acceptable distance was 200 feet.
He also observed that drivers approaching the intersection eastbound on 40th
could not see pedestrians in the northern half of the crosswalk due to the
vegetation.
Further, there was evidence that Zitani’s view of Russell crossing the
street was obstructed based on her driving the stretch of 40th between
Shafter and Opal where her line of sight to the northeast corner of the 40th
and Opal intersection would have been obstructed by the taller vegetation in
the Median. It was undisputed that in the moments before the accident,
Zitani was driving in the left eastbound lane of 40th, and Russell was
walking southbound in the crosswalk across 40th. From the end of the
crosswalk at the northeast corner of the intersection to the area of impact
was approximately 51 to 57 feet. Based on the typical male pedestrian
walking speed of 3 mph, the Russells’ accident reconstructionist Kelkar
calculated that it would have taken Russell walking at normal speed
approximately 12 seconds to get from the curb to the area of impact.
Meanwhile, Zitani testified that she was traveling at a reduced speed of 25
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mph. According to White, a vehicle travels 37 feet in 1 second and 200 feet in
5.5 seconds, and the distance from the east end of Shafter to the crosswalk at
40th and Opal was 300 feet. It would have taken Zitani approximately 8
seconds to drive the 300 feet from Shafter to the crosswalk at the 40th and
Opal intersection. As noted, until Zitani was 140 to 145 feet from the
intersection (based on the City’s larger measurement), her view of the
northeast corner of the intersection would have been blocked. Based on the
evidence, it is a reasonable inference that Russell was walking in the
northern part of the crosswalk at the same time Zitani’s view of him would
have been obstructed by the vegetation.
Finally, it was disputed whether from the point there was no
obstructed view on 40th (i.e., 140 to 145 feet from the point of impact) there
was enough time for Zitani to respond to a pedestrian in the crosswalk. The
evidence indicates that at 25 mph, Zitani would have gotten to this point
approximately 4 or 5 seconds before reaching the crosswalk. In the City’s
view, five seconds of clear sightlines between a driver and pedestrian is more
than sufficient for a response. However, according to Kelkar, based on
perception-reaction time, even 5 seconds would not have been an adequate
time to respond considering drivers are engaged in a variety of looking tasks
such that their gaze is not always fixed in a particular location or direction.
Zitani herself stated that she constantly scanned the road ahead to look for
upcoming traffic signals and pedestrians in crosswalks. For all these
reasons, summary judgment was improper.
Based on our review of the evidence, we are not persuaded by the City’s
assertion that the only available conclusion was that the sun glare caused the
accident and that contentions positing the vegetation as an additional cause
of the collision consist solely of multiple layers of speculation.
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For example, the City contends the Russells’ argument that Zitani
started braking before hitting Russell because she saw Russell prior to
contact was speculative. Not so. As noted, the City agreed that it was
undisputed that the physical evidence in this case established that Zitani
must have seen Russell before the collision. Zitani’s deposition testimony
also supports the view that she started braking only because she saw Russell.
She stated: “Truthfully, I don’t know how I struck him. I thought he went
under my car truthfully. I didn’t – all I know is I hit him. I just saw him as I
was – as I approached. I didn’t see anything else. I just saw him, and I
realized I hit him, and I stopped the car immediately.” She added that she
“slammed on the brakes.”
The City also argues that even if the sun was not entirely disabling, it
was disabling enough to be the sole cause of the accident. But this is not the
only inference that can be made from the evidence. Based on the evidence
that the sun did not completely block Zitani’s view, a trier of fact could
reasonably infer that she would have been able to see an adult in the
crosswalk unless something else blocked her view. This is a reasonable
inference, which we must view it in the light most favorable to Appellants as
the opposing parties. (Aguilar, supra, 25 Cal.4th at p. 843 [“In ruling on the
[summary judgment] motion, the court must ‘consider all of the evidence’ and
‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view
such evidence [citations] and such inferences [citations], in the light most
favorable to the opposing party.”].)
In its arguments, the City emphasizes Zitani’s testimony that she hit
Russell due to the sun, not because any vegetation blocked her view of him.
We too recognize that she repeatedly attributed her inability to see Russell
completely to the solar glare. However, considered in its entirety, Zitani’s
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deposition testimony does not preclude the vegetation being a substantial
factor in the accident. Zitani testified that it was the sun that obstructed her
vision and thereby caused the collision, but this testimony does not
necessarily address the several seconds leading up to the collision. Further,
when shown an image of 40th between Shafter and Opal, she acknowledged
that she would not have been able to see her left side from behind the
shrubbery and high tress in the Median. These answers make ambiguous the
role the vegetation had, if any, in the accident, and we resolve any
evidentiary doubts or ambiguities in favor of the party opposing summary
judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768;
Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 119 [where
“deposition testimony . . . may support conflicting interpretations, ‘the task of
disambiguating ambiguous utterances is for trial, not for summary
judgment’ ”].)
In addition, referencing Exhibit 4, the City contends any argument that
relies on the Google Maps image presented at deposition is improper because
the image was unauthenticated and inadmissible. To the extent the City
objected to this evidence as part of the summary judgment proceedings, the
trial court overruled all of them. The City did not challenge those rulings on
appeal, so the City forfeits any claim that we should exclude any evidence to
which its objections were overruled. (Frittelli, Inc. v. 350 North Canon Drive,
LP (2011) 202 Cal.App.4th 35, 41 [appellant who “does not attack the [trial
court’s evidentiary] rulings on appeal . . . forfeit[s] any contentions of error
regarding them”].)
The City also criticizes Kelkar’s opinion as too conclusory to be relied
upon and lacking in evidentiary value because it conflicts with Zitani’s own
testimony. Any suggestion that Kelkar’s declaration is inadmissible is
25
forfeited for the same reasons as above. Further, we disagree that the record
is devoid of evidence that would support Kelkar’s conclusions, including the
vegetation in the Median and the limited sightlines at the intersection
resulting from it.
In sum, and based on the totality of the evidence, a trier of fact could
reasonably infer that longer sightlines unobstructed by vegetation would
have made Russell visible to Zitani sooner and prompted her to react sooner.
More specifically, a trier of a fact could reasonably infer that had the
vegetation in the Median not obstructed Zitani’s line of sight to the northeast
corner of the intersection and the northern part of the crosswalk where
Russell was, Zitani would have seen Russell crossing and had more than 4 or
5 seconds to react to his presence and avoid collision. Because there is a
triable issue of fact as to whether the vegetation in the Median was one of the
substantial factors that caused the collision, summary judgment was
improper.
In reversing summary judgment, we do not conclude that the
vegetation blocked Zitani’s view of Russell crossing the street. Rather, we
conclude only that there is evidence from which a trier of fact could
reasonably infer the causation element required for the premises liability
claim against the City. Based on the evidence in the record, and any
reasonable inferences drawn therefrom, it shall be up to the trier of fact to
conclude whether the vegetation blocked Zitani’s view of Russell, precluding
her from responding sooner, and was thus a substantial cause of the accident.
2. Whether Vegetation Prevented Russell from Seeing
Zitani
The Russells additionally argue that a triable issue of fact exists as to
whether the overgrown vegetation in the Median prevented Russell from
26
seeing Zitani before he crossed the street. We agree there was enough
evidence from which a trier of fact could reasonably infer that Russell would
not have started to cross the street in the first place had the vegetation not
blocked his view of Zitani’s approaching car. The record includes the
following photograph taken by a City employee in May 2019 showing the
westward view of 40th from the northeast corner of the intersection:
In addition to the other evidence discussed, a trier of fact could reasonably
infer Russell’s sightlines towards oncoming eastbound traffic behind the
vegetation on 40th were not clear and prevented him from making a fully
informed decision as to the propriety of crossing the street. For this reason,
too, summary judgment was improper.
In light of Russell’s lack of recollection of the accident and the absence
of witness testimony describing what Russell was doing, the City states that
“[w]ithout any evidence of Russell’s perspective, there is nothing to support a
reasonable inference that the vegetation obscured Russell’s view while he
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was standing on the curb.” However, Russell’s lack of memory is not fatal to
the Russells’ alternate theory of causation and none of the City’s additional
arguments persuade us that the Russells have failed to raise a triable issue of
fact on this issue. (See Kaney, supra, 74 Cal.App.5th at p. 217 [plaintiff’s
inability to remember fall did not mean she lacked nonspeculative evidence of
causation “provided the evidence [gave] rise to a reasonable and probable
inference that the defendant’s negligence was a substantial contributing
factor”].)
In light of our decision reversing summary judgment, we need not
address Appellants’ remaining contentions.
DISPOSITION
The summary judgment in favor of the City of Oakland is reversed.
The parties shall bear their own costs on appeal.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Rodríguez, J.
A162798, A162878/Russell et al., v. Zitani et al.
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Photograph Appendix:
Photograph 1: Page 3 (Aerial photograph of intersection between 40th Street
and Opal Street)
Photograph 2: Page 7 (Labeled as Exhibit 4; Median on 40th Street)
Photograph 3: Page 21 (Tall vegetation on Median)
Photograph 4: Page 21 (Cracked windshield)
Photograph 5: Page 27 (Westward view of 40th Street from NE corner)
30