Thimon v. City of Newark ( 2020 )

Filed 1/27/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
DESTINY THIMON, a Minor, etc.,
Plaintiff and Appellant,
A152093
v. (Alameda County Super.
CITY OF NEWARK, Ct. No. HG15756417)
Defendant and Respondent.
Destiny Thimon, then 14 years old, was crossing Cherry Street in Newark,
California one morning when she was hit by a car driven by Bihn Soudachanh, who did
not see her because the sun was in his eyes. Thimon was seriously injured as a result.
Through her guardian ad litem, Thimon sued the City of Newark (Newark),
asserting that a variety of alleged defects in the intersection and its surrounds rendered it
a dangerous condition that partially caused the accident. Newark filed a motion for
summary judgment contending, among other things, that the intersection did not
constitute a dangerous condition and that Thimon could not show it was a dangerous
condition. The trial court granted summary judgment on these grounds and entered
judgment in favor of Newark. Thimon timely appealed. We affirm.1
1
Newark has filed a cross-appeal contesting the trial court’s rejection of
Newark’s argument that it was also entitled to summary judgment based on its
affirmative defense of design immunity. This cross-appeal is dismissed as moot because
of our affirmance of the trial court’s grant of summary judgment. We therefore do not
further address this issue.
1
BACKGROUND
I.
Thimon’s Allegations
Thimon’s second amended complaint, the operative pleading (the complaint),
alleges: “On December 6, 2013 at approximately 7:30 in the morning, Destiny Thimon
was on her way to school, and reached the corner of Cherry Street and Redeker Place. As
Cherry Street at this intersection was not controlled by signals or stop signs, and
contained no pedestrian activated signals or lights, [Thimon] waited for traffic to abate
before proceeding. After being in the crosswalk approximately 6.22 seconds, she was
struck by a vehicle traveling on Cherry Street, was thrown over 50 feet by the impact, and
suffered, inter alia, a major head injury, fracture of her femur, and facial fractures. The
operator of the offending vehicle was driving at a rate under the 45 mph posted speed
limit but had not seen [Thimon] due to glare from the morning sun.”
Under Thimon’s claim against Newark for “Dangerous Condition of Public
Property,” the complaint further alleges: “Cherry Street at its intersection with Redeker
Place is a public street owned and/or controlled by [Newark]. It consists of two lanes for
travel in both directions with two left turn pockets, one for entrance into Redeker Place
and the other for entrance onto Robertson Avenue.” It further alleges that Cherry Street
at this intersection lacked “stop signs,” “traffic signals,” a “blinking yellow arterial to
warn drivers of the impending crosswalk” and “pedestrian actuated mechanisms to alert a
driver of a pedestrian’s use of the crosswalk.” This area “thereby constitutes a dangerous
condition of public property,” the complaint further alleges, “due to forced use of an
unprotected, uncontrolled crosswalk particularly at a time of year and time of day when
glare from the morning sun obscures visibility of pedestrians.” This condition “created a
trap for pedestrians,” and Newark “should have ameliorated the hazards presented by its
location [more than 4 lanes of width with morning commute traffic traveling at 45 mph
with visibility obscured by morning sun] by implementation of, e.g., warning lights or
pedestrian actuated mechanisms.”
2
The complaint also alleges that Newark created the dangerous condition by
“failing to continue sidewalk along Cherry Street, placing a crosswalk at that intersection,
painting only single white lines, omitting traffic controls on Cherry Street, omitting
arterial warning signals, and/or omitting pedestrian actuated signals for use of the
crosswalk. Alternatively, the danger existed for a sufficient period of time before the
accident to have permitted its employees, in the exercise of due care, to discover and
remedy the dangerous condition existing by reason of [these features or lack of
features].”2
The complaint further asserts that as a “legal result” of this dangerous condition,
Thimon was violently struck by a vehicle traveling below the posted speed limit while
she was legally in the crosswalk, was injured and subjected to great mental and physical
suffering, was required to obtain health care and rehabilitation, requires attendant care
services and may be unable to work in the future or will sustain a loss of earning
capacity.
II.
Newark’s Summary Judgment Motion
Newark moved for summary judgment, including on the ground that Thimon
could not establish a defect in the property constituting a dangerous condition. Thimon
opposed summary judgment, including on the ground that Newark had not met its burden
of negating the dangerous condition because it had “segregate[d] each aspect of this
crosswalk” but failed to “attack[] the combination of circumstances which made this
2
The complaint also alleges as a dangerous condition that “the [west] side of
Cherry Street after Redecker Place from which [Thimon] was coming is an industrial area
which contains no sidewalk. The other side of Cherry Street had a sidewalk. Pedestrians
coming from [Thimon’s] residence, particularly students attending school at . . . Newark
Memorial High School, must cross Cherry Street at this intersection due to the absence of
continuing sidewalk on Cherry Street.” Thimon has abandoned reliance on this
condition, presumably because Newark thoroughly discredited its dangerousness below,
pointing out that the sidewalk on the west side of Cherry ended at an earlier point and
would have forced Thimon, if anything, to use the signalized intersection at Central
Avenue before she reached Cherry. Nor has she pursued her theory that a bus stop on the
east side of Cherry contributed to the intersection’s dangerousness.
3
marked crosswalk a dangerous condition”; and that the installation of a crosswalk at the
Cherry/Redeker intersection created a dangerous condition.
A. The Undisputed Facts
The following facts are undisputed. The intersection where the accident occurred
is on a two-way, four-lane (with an additional turning lane in the center) arterial street
known as Cherry Street that runs generally northwest-to-southeast (which for ease of
description we will refer to as north-south), where it intersects with two streets known as
Redeker Place (on the west) and Robertson Avenue (on the east) (which for ease of
description we will refer to as the Cherry/Redeker intersection). Cherry, Redeker and
Robertson were constructed sometime prior to 1963. Improvements that involved
widening the intersection and installing sidewalk on the east side of Cherry were
constructed in 1964 and 1981. There was no marked crosswalk at the Cherry/Redeker
intersection until 1998, when Newark marked the crosswalk with white lines and
installed warning signs on both sides of Cherry approaching the intersection. In 2003,
after resurfacing the road, Newark again marked the crosswalk with white lines.
The Cherry/Redeker intersection is controlled by stop signs on Redeker and
Robertson, which require vehicles to stop before entering onto Cherry, but there are no
stop signs or traffic lights on Cherry itself at this location. At other locations, there are
signalized intersections where pedestrians may cross Cherry, but at the Cherry/Redeker
intersection there is simply a crosswalk with painted white lines running east-west across
Cherry. Besides the painted crosswalk lines, there are signs, two south of the intersection
about 140 and 560 feet away and two north of the intersection similar distances away,
warning oncoming motorists of the pedestrian crosswalk at the intersection.
In the area of the intersection, Cherry Street is a level roadway with no blind
corners or other physical features (such as foliage or elevation variances) that might
obscure motorists’ vision of the crosswalk. A pedestrian sidewalk runs along the east
side of the street, but generally not on the west (industrial) side. During certain times of
year, the light from the rising sun creates a glare that can obscure the vision of motorists
4
traveling southward on Cherry in the vicinity of the intersection at certain times of the
morning.
There is heavy motor traffic along Cherry Street. By contrast, there is low
pedestrian usage of the Cherry/Redeker intersection. In the 10-year period preceding the
accident, there were no reports of motorists on Cherry Street colliding with pedestrians
using the crosswalk at the Cherry/Redeker intersection.
On the morning of December 6, 2013, at about 7:30 a.m., Thimon walked from
her home to school. Along her route to the Cherry/Redeker intersection were two
opportunities to cross Cherry at crosswalks with traffic signals (at Thornton and at
Central). There was also an intersection with signals (at Mowry) beyond the
Cherry/Redeker intersection in the direction she was walking. Thimon was on the west
side of Cherry when she stopped at Redeker to cross Cherry. Traffic on Cherry was still
heavy and flowing as she began to cross Cherry in an eastward direction in the crosswalk.
Around this same time, Soudachanh, driving his usual route to work, turned from
Central Street right onto Cherry and proceeded southward approaching the
Cherry/Redeker intersection. When he pulled out from behind a bus into the left-hand
lane, his vision was obscured by the glare of the sun, which he had previously
experienced at this location during certain fall and winter months. He put his visor down
but was still unable to see anything in front of him. He nonetheless proceeded to drive
through the intersection, colliding with Thimon, whom he did not see at any time before
he hit her. She was thrown more than 50 feet and suffered serious injuries. Soudachanh
violated the Vehicle Code by driving at a speed greater than was reasonable having due
regard for visibility on the roadway (id., § 22350) and failing to yield the right of way to
a pedestrian crossing the roadway within any crosswalk at an intersection (id., § 21950).
There is no dispute that his negligent driving was a proximate cause of Thimon’s injury. 3
3
There was a dispute about the precise speed at which Soudachahn was driving at
the time of the incident in this 45 miles per hour zone. He told police and testified at
deposition that he was driving 20 to 25 miles per hour. Police estimated, based on the
location where Thimon’s head struck Soudachanh’s windshield and a computer program
5
B. Disputed Issues
The parties disputed the condition of the Cherry/Redeker intersection, based
mostly on declarations by their respective experts. Newark’s traffic and civil engineering
expert opined that the various features of the intersection that Thimon alleged made it
dangerous did not increase the risk to pedestrians or were reasonable exercises of
engineering judgment. In particular, he opined that the decisions to mark the crosswalk
in 1998 and to re-mark it in 2003 were “reasonable exercise[s] of engineering judgment.”
Newark’s expert also attached to his declaration a copy of a study by a traffic
engineering consulting firm that Newark retained shortly after the collision to evaluate
whether installation of traffic signals was warranted under the criteria contained in the
California Manual on Uniform Traffic Control Devices. The expert agreed with the
finding of the study that a traffic signal was not warranted based on those criteria.
Thimon proffered the declaration of her own engineering expert, who disagreed
that installing the crosswalk at the Cherry/Redeker intersection was reasonable. He
opined that studies indicate pedestrian accidents increase significantly in marked as
opposed to unmarked crosswalks on high speed, heavily trafficked arterials. While he
acknowledged that crosswalks “can provide increased safety for pedestrians under
suitable conditions,” he opined that a public entity cannot evaluate whether conditions are
suitable for a crosswalk without “an appropriate engineering study of a candidate site,”
which Newark had not done. And although he did not claim to have done such a study
himself, he nonetheless further opined that such a study would have shown the location
of the accident was unsuitable for a crosswalk and did not need one.
Thimon’s expert also thought the crosswalk “was not only at an intersection that is
unsuitable for a crosswalk, it was an invitation for pedestrians to cross an arterial
roadway at a hazardous and uncontrolled location.” He contended that Newark had failed
used to estimate speed, that he was driving approximately 30 to 45 miles per hour.
Newark proffered the opinion of an accident reconstructionist that he was driving
35 miles per hour, but the court sustained Thimon’s objection to the statement as
conclusory and lacking foundation. Regardless, the parties agree that he knowingly
drove through the intersection with his vision obscured by the glare of the sun.
6
to follow guidelines in various traffic manuals stating that crosswalk markings “should
not be used indiscriminately.” He opined that the installation of the crosswalk created the
dangerous condition because of preexisting factors, including the width and multi-lane
characteristics of the road, the high traffic volume, the speed of traffic and the lack of
controls at the intersection. As he put it, “[u]nnecessary painted crosswalks at
uncontrolled locations are inherently dangerous.”
Thimon’s expert was also critical of the lack of further improvements at the
crosswalk. He opined, “[p]ainted crosswalks at uncontrolled locations on high-volume
and high-speed arterial roadways should always be supplemented with substantial
additional improvements, such as pedestrian-actuated traffic signals.”
Thimon’s engineer concluded, “[t]he crosswalk markings and warning signs alone
should not have been installed on Cherry Street at Redeker Place because the factors
creating the dangerous condition for the marked crosswalk were already present and
could have easily been discovered by the City at the time the markings and signs were
installed. However, once the crosswalk markings were installed, the City of Newark was
then obligated to install substantial improvements (over and above the warning signs),
such as pedestrian actuated traffic signals, to assist pedestrians using the marked
crosswalk because the City was telling pedestrians they should cross at the marked
crosswalk.” He further stated, “[b]ut for the installation of the subject marked crosswalk
in clear opposition to established engineering standards and guidelines, it is unlikely that
the plaintiff would have chosen to cross Cherry Street at this uncontrolled location and
the subject accident would not have occurred. In general, pedestrians and motorists using
Cherry Street are unaware of the factors that contribute to the dangerous nature of the
subject crosswalk (which include high traffic speeds, high traffic volumes, and the
position of the sun during the morning hours in fall and winter), and because no traffic
controls are present to mitigate these factors, the crosswalk creates a trap for pedestrians
and motorists using the City’s facility with due care.”
7
C. The Trial Court’s Ruling
After a hearing, the trial court granted Newark’s motion, concluding Newark had
made the required prima facie showing to shift the burden to Thimon to demonstrate that
a reasonable jury could find in her favor as to her cause of action for dangerous
condition. Noting that Soudachanh had testified he was very familiar with the
Cherry/Redeker intersection and the problems with visibility presented by the glare of the
sun, the court stated Thimon had failed to identify any factor other than the glare of the
sun that prevented Soudachanh from seeing her as she was crossing in the sidewalk. The
court also found probative of the lack of a dangerous condition the evidence showing that
over a 10-year period preceding the accident there had been no vehicle versus pedestrian
accidents within the subject crosswalk.
DISCUSSION
I.
Legal Standards
A. Dangerous Condition Liability
The governing law in this dispute over the condition of the Cherry/Redeker
intersection is the Government Claims Act (Gov. Code, § 810 et seq. (the Act)).
“Section 835 . . . of the Act . . . prescribes the conditions under which a public entity may
be held liable for injuries caused by a dangerous condition of public property. [Citation.]
Section 835 provides that a public entity may be held liable for such injuries ‘if the
plaintiff establishes [1] that the property was in a dangerous condition at the time of the
injury, [2] that the injury was proximately caused by the dangerous condition, [and] [3]
that the dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred.’ In addition, the plaintiff must establish [4] that either: (a) ‘[a]
negligent or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition,’ or (b) ‘[t]he public entity
had . . . notice of the dangerous condition . . . a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition.’ ” (Cordova v. City of Los
Angeles (2015) 61 Cal. 4th 1099, 1105 (Cordova).)
8
“The Act defines a ‘ “[d]angerous condition” ’ as ‘a condition of property that
creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury
when such property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.’ ([Gov. Code,] § 830.) Public property is in a
dangerous condition within the meaning of [Government Code] section 835 if it ‘is
physically damaged, deteriorated, or defective in such a way as to foreseeably endanger
those using the property itself.’ ” (Cordova, supra, 61 Cal.4th at p. 1105.) “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 v. Central
Contra Costa Transit Authority (2003) 30 Cal. 4th 139, 149 (Bonanno).) “A dangerous
condition of public property can come in several forms and may be based on an
‘amalgam’ of factors.” (Salas v. Dept. of Transportation (2011) 198 Cal. App. 4th 1058,
1069 (Salas).) “A condition is not dangerous ‘if the trial or appellate court, viewing the
evidence most favorably to the plaintiff, determines as a matter of law that the risk
created by the condition was of such a minor, trivial, or insignificant nature in view of the
surrounding circumstances that no reasonable person would conclude that the condition
created a substantial risk of injury when such property or adjacent property was used with
due care in a manner in which it was reasonably foreseeable that it would be used.’
([Gov. Code,] § 830.2.)” (Cordova, at pp. 1104-1105.)
The fact that Soudachanh’s negligence was a proximate cause of Thimon’s injury
does not preclude a finding of dangerous condition. “[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.’ ” (Cordova, supra, 61 Cal.4th at p. 1105.) When a third
party’s conduct is the immediate cause of a plaintiff’s harm, the question becomes
whether the dangerous condition “increased or intensified” the risk of injury from the
9
third party’s conduct. (Zelig v. City of Los Angeles (2002) 27 Cal. 4th 1112, 1137; Cerna
v. City of Oakland (2008) 161 Cal. App. 4th 1340, 1348.)
On the other hand, a public entity is not required to assume that third parties such
as Soudachanh will act negligently or recklessly. “As one court has observed, any
property can be dangerous if used in a sufficiently improper manner. For this reason, a
public entity is only required to provide roads that are safe for reasonably foreseeable
careful use. [Citation.] ‘If [ ] it can be shown that the property is safe when used with
due care and that a risk of harm is created only when foreseeable users fail to exercise
due care, then such property is not “dangerous” within the meaning of section 830,
subdivision (a).’ ” (Chowdhury v. City of Los Angeles (1995) 38 Cal. App. 4th 1187,
1196.)
“Ordinarily, the existence of a dangerous condition is a question of fact, but
whether there is a dangerous condition may be resolved as a question of law if reasonable
minds can come to but one conclusion. [Citation.] ‘[I]t is for the court to determine
whether, as a matter of law, a given defect is not dangerous. This is to guarantee that
cities do not become insurers against the injuries arising from trivial defects.’ ” (Salas,
supra, 198 Cal.App.4th at p. 1070.) Moreover, “expert opinions on whether a given
condition constitutes a dangerous condition of public property are not determinative:
‘[T]he fact that a witness can be found to opine that such a condition constitutes a
significant risk and a dangerous condition does not eliminate this court’s statutory task
pursuant to [Government Code] section 830.2, of independently evaluating the
circumstances.’ ” (Sun v. City of Oakland (2008) 166 Cal. App. 4th 1177, 1189 (Sun).)
B. Summary Judgment
As in other cases, a motion for summary judgment in a dangerous condition case
“ ‘shall be granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.’
(Code Civ. Proc., § 437c, subd. (c).)” (Salas, supra, 198 Cal.App.4th at p. 1067.) “A
defendant meets his burden of showing that a cause of action has no merit if he shows
that one or more of the elements of the cause of action cannot be established, or that there
10
is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has
met that burden, the burden shifts to the plaintiff to show that a triable issue of material
fact exists.” (Ibid.)
We review the trial court’s grant of summary judgment de novo. (Salas, supra,
198 Cal.App.4th at p. 167.) We consider all of the evidence considered by the trial court
in a light favorable to Thimon, liberally construing her evidentiary submissions while
strictly scrutinizing Newark’s showing and resolving any evidentiary doubts or
ambiguities in her favor. (See ibid.) We employ the same three-step analysis as the trial
court, first, identifying the issues raised by the pleadings; second, determining whether
Newark’s showing established facts which negated Thimon’s claims and justified a
judgment in its favor; and third, if Newark made this showing, determining whether
Thimon demonstrated the existence of a triable, material factual issue. (See ibid.)
II.
Summary Judgment Was Properly Granted.
A. Newark Met Its
Prima Facie Burden.
Thimon contends Newark failed to make a prima facie showing that there was no
dangerous condition because it “did not negate the existence of the totality of the
circumstances by which a dangerous condition was alleged to exist.” She accuses
Newark of having “[c]herry-picked factual items which, on an individualized basis may
support summary judgment under a particular authority” but failing to negate “the
‘amalgam’ or combination of features . . . pled.” We disagree.
Newark proffered evidence establishing that Cherry has no blind corners,
elevation variances, trees, plants or shrubbery that would obstruct a driver’s view of a
pedestrian in the area of the Cherry/Redeker intersection; that the intersection had a
crosswalk painted with white lines; that signs warning of pedestrians had been installed
on the approach to the intersection; that although the sun impeded Soudachanh’s view, he
was aware of the glare well before he approached the intersection; that Soudachanh was
neither wearing sunglasses nor the prescription glasses required by his license, but
11
instead was only wearing drug store reading glasses; that police found Soudachanh
violated the Vehicle Code (by failing to yield to a pedestrian in a crosswalk and traveling
at an unsafe speed), which caused the accident; and that despite the heavy morning
commute traffic and sun glare during certain months there was no history of collisions at
this crosswalk involving pedestrians in the 10 years prior to this accident. (See, e.g.,
Salas, supra, 198 Cal.App.4th at pp. 1062-1064.) The absence of prior similar accidents
supports the inference that drivers exercising due care, such as by driving more slowly or
taking other precautions to mitigate the effect of the sun’s glare, would not have caused
such an accident. (Id. at pp. 1064, 1071; Mixon v. Pacific Gas & Elec. Co. (2012)
207 Cal. App. 4th 124, 138 (Mixon).) This in turn indicates the “substantial risk”
requirement of Government Code section 830, subdivision (a) cannot be met, and there
was thus no dangerous condition.4
Newark’s prima facie showing is very similar to the facts that prevailed in Salas.
There, a woman died after being hit by a car driving on a state highway, and the husband
and his sons sued the state for dangerous condition. (Salas, supra, 198 Cal.App.4th at
pp. 1061-1062.) They alleged the crosswalk in which the woman was hit constituted a
dangerous condition for a host of reasons, many similar to those asserted here. These
included the city’s failure to design or install proper signage, controls or signals; failure
to provide safe streets or highways; failure to follow recommended standards as to the
location and design of the crosswalk; placement of the crosswalk in the location without
proper safety devices; and failing to enforce or control speed in the area. (Id. at p. 1062.)
Caltrans showed the road at the accident location was straight and level and that
there were no “sight obstructions” for motorists or pedestrians in the area of the collision.
4
See 2 Cal. Government Tort Liability Practice (4th ed. 1999, 2019 rev.) § 12.20,
stating the “substantial risk of injury” requirement “reflects the legislature’s concern that
an undue burden would be placed on public entities if they were responsible for the repair
of all conditions creating any possibility of injury, however remote that possibility might
be. 4 Cal L Rev’n Comm’n Reports 822 (1963). See Law Revision Commission
Comment to [Gov. Code,] § 830.2; Fredette v. City of Long Beach (1986)
187 [Cal.App.]3d 122, 130[, fn.] 5 (legislature was concerned with frequency or
probability that injury would occur, not extent of injury).”
12
(Salas, supra, 198 Cal.App.4th at pp. 1062-1063.) It also pointed to witness statements
that the driver had not been exceeding the speed limit, that as he had approached the
intersection the decedent had moved first in one direction and then another and that the
car had swerved in response to her and hit her when she reversed course. (Id. at p. 1063.)
Furthermore, police had determined the driver caused the accident by failing to yield to a
pedestrian and driving at an unsafe speed for the conditions, and that the decedent’s last-
minute change of direction was a factor in the accident. (Id. at p. 1064.) Caltrans also
showed that in the 10 years preceding the accident there had been heavy vehicle traffic
but no pedestrian-vehicle collisions. (Ibid.)
On appeal, the Third District affirmed the trial court’s ruling that, based on this
evidence, Caltrans had made a prima facie showing that “no condition of property
‘creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury
when such property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.’ ” (Salas, supra, 198 Cal.App.4th at p. 1071.)
Newark’s showing in this case is very similar to Caltrans’s and we likewise conclude it
demonstrates, prima facie, that no condition of the property created a dangerous
condition.
We also disagree with Thimon’s contention that Newark’s showing addressed
each allegedly dangerous feature of the intersection individually and did not address the
entire combination together. It is true that a dangerous condition may consist of an
“ ‘amalgam of factors’ ” (Salas, supra, 198 Cal.App.4th at p. 1069) and that Thimon
alleges a wide variety of features that a public property either has or lacks that allegedly
make it a “dangerous condition.” As we have discussed, the complaint alleges that the
glare from the morning sun at certain times of the year and the day obscured motorists’
ability to see pedestrians; that the placement of a crosswalk with only single white lines
was improper; that the failure to install “stop signs,” “traffic signals,” a “blinking yellow
arterial to warn drivers of the impending crosswalk” or “pedestrian actuated mechanisms
to alert a driver of a pedestrian’s use of the crosswalk” made the crosswalk dangerous;
and that the “hazards presented by [the intersection’s] location” (such as the four-lane
13
width of Cherry Street, 45 miles per hour speed limit and the heavy morning commute
traffic) contributed to the danger. Nonetheless, Thimon fails to explain how a defendant
faced with this kind of kitchen-sink approach is to carry his or her burden to address such
a multiplicity of factual theories. Other than to address, as to each alleged factor, why it
does not constitute a dangerous condition, whether alone or in combination with others,
and/or to present evidence, such as the absence of similar collisions, that otherwise
demonstrates that no condition of the property posed a substantial risk of injury to
persons exercising due care, we can think of none. Newark did both in its moving
papers. Along with the evidence we have already discussed, Newark presented evidence
and argument regarding each of Thimon’s allegedly dangerous features. It also presented
a study by a consulting company conducted shortly after the accident that analyzed
whether a traffic signal was warranted at the intersection based on the criteria for traffic
signals in the California Manual on Uniform Traffic Control Devices, which study
concluded a traffic signal was not warranted.
In short, Thimon’s contention that Newark failed to meet its burden because it did
not address “the ‘amalgam’ or combination of features . . . pled” is without merit.
B. Thimon Failed to
Raise a Triable Issue of Material Fact.
Having established that Newark met its burden, we turn now to whether Thimon
raised a triable issue of material fact in her opposition. We conclude she did not.
Thimon correctly points out that Soudachanh’s negligence does not preclude a
finding of dangerous condition. When third-party negligence or misconduct has
proximately caused a plaintiff’s injury, the question is whether the alleged dangerous
condition “ ‘increased or intensified’ the danger to users from third party conduct.”
(Bonanno, supra, 30 Cal.4th at p. 155; Cerna, supra, 161 Cal.App.4th at p. 1348.)
As Thimon contends in her opening brief, the “combination of circumstances” that
made the marked crosswalk at the Cherry/Redeker intersection a dangerous condition
includes “the width of the roadway combined with the high speeds of vehicular traffic
combined with the lack of traffic controls combined with the glare of the morning sun
14
combined with the absence of pedestrian actuated devices.” Thimon theorizes that
because the Cherry/Redeker intersection had these features, Newark’s marking the
crosswalk with white lines and installing signs created the dangerous condition, which
could only be mitigated if signals or other pedestrian activated devices were provided.
Thimon’s contentions do not create a triable issue of material fact. Given that
Soudachanh’s negligence was a proximate cause of Thimon’s injuries, she must also
explain how Newark’s painting of lines to demarcate the crosswalk along with installing
signs warning motorists of the pedestrian crossing “increased or intensified” the risk of
injury to pedestrians crossing at that location. There is no evidence that these
improvements did so.5
In her opposition, Thimon relied on her engineering expert to raise a triable issue
of material fact regarding her dangerous condition theory in three particular respects.
First, he opined that Newark failed to follow certain guidance set forth in the applicable
Caltrans traffic manuals when it installed and repainted the crosswalk in 1998 and 2003
by marking the crosswalk “indiscriminately,” misperceiving the purpose served by
crosswalks as enhancing pedestrian safety and failing to “sufficiently stud[y] the location
before the crosswalk was installed.” This does not create a triable issue of material fact
for several reasons. Foremost among them is that there is no evidence in the record to
support these conclusory opinions. Also problematic is the expert’s failure to address the
fact that, as pointed out by Newark’s expert, with exceptions not relevant here, the
provisions in the manuals he relied on provide only “general guidance”; they do not set
forth hard and fast rules for marking crosswalks but instead encourage government
5
Notably, cities have been sued and in some cases held liable for the failure to
mark a crosswalk in combination with other factors, such as in Gardner v. City of San
Jose (1967) 248 Cal. App. 2d 798 and Antenor v. City of Los Angeles (1985) 174
Cal. App. 3d 477, 479, 483, and for the removal of crosswalk markings, such as in Sun,
supra, 166 Cal.App.4th at p. 1189. In Gardner, this court considered the city’s failure to
“cause the crosswalk to be marked” and provide warning signs “important factors” that
contributed to a dangerous condition. (Gardner, at p. 803.)
15
personnel to consider a list of factors in exercising engineering discretion to determine an
intersection’s design.
Finally, Newark presented undisputed evidence in the form of a declaration from
its current public works director, an engineer within the department at the relevant times,
who described the custom and practice of his department regarding work order requests
for marked crosswalk installations. This custom and practice involved three layers of
review by engineering staff at increasing levels of responsibility and evaluation of the
proposal for compliance with rules, regulations, design standards and guidelines
pertaining to the work being proposed. Newark was apparently unable, due to the
passage of time (15 years or more) and retirements, a disabling illness and deaths of most
of the personnel involved, to describe the substance of its evaluation of this intersection
when installing and re-marking its crosswalk. Nonetheless, its use of this extensive
evaluation process for the marking and remarking of the Cherry/Redeker crosswalk was
established by work orders initialed by two former engineering employees and the then-
director of the public works department that signified the preparation, review and
recommended approval, and approval of these installations. This undisputed evidence
shows Newark’s engineering professionals exercised the discretion called for by the
Caltrans manuals. (See also Evid. Code, § 664 [presumption that official duty has been
regularly performed].)
Second, Thimon’s expert theorized that marking the crosswalk increased the
likelihood that a pedestrian like Thimon would use it. This theory does not create a
triable issue of fact. Assuming more pedestrians used the intersection because the
crosswalk was marked does not establish the crosswalk was a dangerous condition
because an increase in pedestrian use did not increase or intensify the danger of injury to
Thimon when she used the crossing. Our colleagues’ opinion in Sun, supra,
166 Cal. App. 4th 1177 makes this very point. There the plaintiff’s expert opined that
“bulb outs” such as those Oakland had installed at the crosswalk of a busy street where
the plaintiff was injured had the effect of “ ‘further invit[ing] pedestrians to cross a
street’ ” and led pedestrians “ ‘to believe they could cross safely.’ ” (Id. at p. 1188.) The
16
court rejected the argument that this established a dangerous condition, observing, “there
is nothing about heavy pedestrian use that increased or intensified the danger to [the
plaintiff] as she attempted to cross the street.” (Id. at p. 1190.) The same is true here.6
Also, the expert’s assertion that Thimon would not have crossed at Redeker if the
crosswalk had not been marked was entirely speculative, especially in light of her having
already bypassed two opportunities to cross at intersections equipped with traffic signals,
and was of marginal, if any, relevance in assessing whether there was a dangerous
condition at the Cherry/Redeker intersection. (See Huffman v. City of Poway (2000)
84 Cal. App. 4th 975, 992 [whether condition of property poses substantial risk of injury to
foreseeable users exercising due care is objective standard measured by risk posed to
ordinary foreseeable user].)
Third, Thimon’s expert opined that the crosswalk created a “trap” because
“pedestrians and motorists using Cherry Street are unaware of the factors that contribute
to the dangerous nature of the subject crosswalk.” This opinion also does not raise a
triable issue of material fact, since undisputed evidence shows the conditions Thimon
claims are dangerous were apparent to pedestrians. “The manifest intent of the Tort
Claims Act is to impose liability only when there is a substantial danger which is not
apparent to those using the property in a reasonably foreseeable manner with due care.”
(Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 131; see also Biscotti v.
Yuba City Unified School Dist. (2007) 158 Cal. App. 4th 554, 560 [it is a “common sense
proposition that premises liability may not be imposed on a public entity when the danger
of its property is readily apparent”].) Here, Newark showed and Thimon did not dispute
facts showing none of the features of the intersection Thimon claims posed a danger were
6
The expert’s reliance on studies showing there are more pedestrian accidents in
marked than unmarked crosswalks at uncontrolled intersections on high speed arterials
does not change this analysis. These studies show a correlation between marked
crosswalks and increased accidents, but none show that marking increases the risk of
injury to a pedestrian who uses the intersection. Rather, as one of the studies observed,
the evidence “suggests that the poor accident record of marked crosswalks is not due to
the crosswalk being ‘marked’ as much as it is a reflection on the pedestrian’s attitude
and lack of caution when using the marked crosswalk.” (Italics added.)
17
hidden from pedestrians using the crosswalk. Cherry Street at, approaching and beyond
the crosswalk was straight and level, without significant curves, elevation variances,
blind corners or sight obstructions. Nor were there trees, plants or shrubbery that would
prevent drivers from seeing pedestrians or, conversely, pedestrians from observing the
oncoming traffic on Cherry Street. Thus, nothing prevented pedestrians from observing
the volume of the oncoming traffic or its speed. Given these conditions, there is no
reason to believe the width of Cherry at the intersection with Redeker was not apparent to
any pedestrian using the crosswalk. The same is true of the absence of a signal or other
traffic controls. Likewise, all pedestrians walking on Cherry who exercised due care by
looking both ways before crossing would be exposed to the same intense sun glare as
southward traveling motorists experienced. (Cf. Mixon, supra, 207 Cal.App.4th at p. 134
[“ ‘it is obvious to all when a streetlight is out’ ”]; Chowdhury v. City of Los Angeles,
supra, 38 Cal.App.4th at p. 1194 [obviously inoperative traffic signals during a power
outage did not amount to dangerous condition as a matter of law].)
Thimon especially relies on Erfurt v. State of California (1983)
141 Cal. App. 3d 837 for the proposition that “glare of the sun combined with other
features of a roadway can constitute a dangerous condition.” While this proposition in
the abstract may or may not be correct, Erfurt adds nothing to her dangerous condition
argument. There, the appellate court affirmed a judgment for Erfurt that was based on a
dangerous condition theory. (Id. at pp. 843, 846.) Erfurt was driving over the crest of a
hilly section of a three-lane highway in the early morning when she was suddenly blinded
by the rising sun on the horizon. She kept going straight, but her car nonetheless collided
with an object in the road and seconds later was hit by another car from the rear. (Id. at
p. 840.) Evidence at trial indicated that the object she had hit was a pillar supporting an
overpass for another highway and that unbeknownst to Erfurt the center lane in which she
had been travelling had split into a Y, with half the lane going left and half going right
around the pillar. (Id. at p. 841.) The presence of the pillar directly in the path of travel
in the center lane and the lane’s suddenly splitting into two with a part veering off to the
left was, as a traffic engineer testified, “peculiar,” and the road’s striping did not meet the
18
minimum standard for “channelization.” (Id. at p. 842.) The crosswalk conditions
alleged here are not remotely comparable to the mid-lane, mid-highway pillar at the
center of the Erfurt case. Therefore, the case is inapposite, and also fails to establish that
sun glare without the presence of other hazardous conditions can be a basis for liability.
We also note that the overwhelming weight of authority, including from our own
court, strongly suggests that an intersection with a crosswalk but no signals, whether
marked or unmarked, is not a dangerous condition within the meaning of the Government
Claims Act even when it is located on a high-speed, high-traffic road, particularly in the
absence of a history of other collisions. For example, in Cerna, supra,
161 Cal. App. 4th 1340, this court affirmed summary judgment for the City of Oakland,
holding there was no dangerous condition where an eastbound motorist hit a woman and
five children, killing one child, in a marked crosswalk without a traffic light on Oakland’s
International Boulevard, a four-lane thoroughfare, when the sun was “intensely strong”
and in the direct line of sight of eastbound motorists. (See id. at pp. 1345-1346, 1352.)
Among other things, the court applied the rule that the lack of a traffic signal at the
intersection alone does not constitute proof of a dangerous condition. (Id. at p. 1351
[citing Gov. Code, § 830.4].) In Salas, supra, 198 Cal. App. 4th 1058, the Third District
affirmed summary judgment for Caltrans where a decedent was hit in a marked crosswalk
on a busy state highway with a 45 mile per hour speed limit, in part because Caltrans
proffered evidence that “no other collisions involving pedestrians had occurred [at the
intersection] in a 10-year period, although over 30 million vehicles had passed through
the intersection,” which, while “not dispositive,” was relevant to the issue of
dangerousness. (Id. at p. 1071.) In Mixon, supra, 207 Cal. App. 4th 124, this court
affirmed a grant of summary judgment in favor of Caltrans, holding that an intersection
on a state highway was not a dangerous condition despite dim lighting, the lack of traffic
control signals or pedestrian warning signs, the presence of confusing signal-ahead signs
referring to an upcoming intersection, parallel crosswalk markings instead of more visible
patterns and a dip in the grade of the intersection. (Id. at pp. 129, 132, 138.) The court
held these features, alone or in combination, did not show the intersection was a
19
dangerous condition, especially since there had been no similar accidents despite a high
volume of traffic. (Id. at pp. 137-138.) And in Sun, supra, 166 Cal. App. 4th 1177, this
court affirmed the grant of summary judgment to the City of Oakland where a plaintiff
was killed while crossing International Boulevard in a crosswalk that was allegedly
“poorly lit.” (Id. at p. 1184.) In holding there was no dangerous condition, the court
quoted the following passage from a case involving a vehicle-bicycle collision: “ ‘Many
of the streets and highways of this state are heavily used by motorists and bicyclists alike.
However, the heavy use of any given paved road alone does not invoke the application of
Government Code section 835.’ ” (Id. at p. 1189.)
While Thimon correctly points out that none of these cases addressed the precise
same list of conditions she has alleged here, they and other cases7 implicitly reject the
idea that an intersection on a heavily travelled thoroughfare is made dangerous by the
type or existence of crosswalk markings, the lighting conditions, or the lack of traffic
signals or other devices. The plaintiff’s expert, to be sure, opined otherwise. We
reiterate, however, that the proffer of an expert declaration opining that a condition is
dangerous does not preclude summary judgment. (Sun, supra, 166 Cal.App.4th at
p. 1189.) Indeed, the plaintiffs submitted expert declarations in each of the above-cited
cases, yet the appellate courts affirmed summary judgment. (See id. at pp. 1188-1189
[expert opinion on bulb outs and removal of crosswalk]; Cerna, supra, 161 Cal.App.4th
at p. 1349 [expert traffic engineer]; Mixon, supra, 207 Cal.App.4th at pp. 132, 136
7
See also Brenner v. City of El Cajon (2003) 113 Cal. App. 4th 434 (affirming
order sustaining demurrer where complaint alleged intersection was dangerous because of
increased traffic volume and speed, high pedestrian use and failure to install traffic
control devices or signs); Antenor v. City of Los Angeles, supra, 174 Cal. App. 3d 477
(affirming directed verdict for defendant where the plaintiff contended uncontrolled
intersection on high traffic volume street with four lanes and inadequate lighting
constituted dangerous condition); Plattner v. City of Riverside (1999) 69 Cal. App. 4th
1441 (affirming summary judgment for city where the plaintiff was injured in crosswalk,
rejecting argument that crosswalk near inoperative street light created dangerous
condition); Mittenhuber v. City of Redondo Beach (1983) 142 Cal. App. 3d 1, 7 (affirming
order sustaining demurrer and dismissing bicyclist’s claim that an intersection was
dangerous).
20
[electrical engineer and lighting expert; expert opining on crosswalk marking]; Salas,
supra, 198 Cal.App.4th at pp. 1065, 1075 [civil engineer with experience in traffic
safety].)8 As these cases indicate, expert opinions on whether a given condition
constitutes a dangerous condition of public property are “not determinative” and do not
necessarily raise triable issues of fact. (See Sun, at p. 1189.) On the contrary, in
fulfilling its “ ‘statutory task, pursuant to [Government Code] section 830.2, of
independently evaluating the circumstances,’ ” a court may determine that the conditions
shown do not constitute a dangerous condition as a matter of law and that no triable issue
of material fact has been raised by the evidence, including one or more expert
declarations. (Ibid.)
We so conclude here. In light of the undisputed evidence, including the lack of
any similar collisions over the 10 years preceding the accident during which tens of
millions of vehicles passed through this intersection,9 we agree with the trial court that
the tragic accident and injury plaintiff suffered was caused entirely by the negligence of a
driver and not by any dangerous condition of public property.
DISPOSITION
Regarding Thimon’s appeal, the judgment of the trial court is affirmed. Newark’s
cross-appeal is dismissed as moot. The parties shall each bear their own costs on appeal.
8
In Salas, the court affirmed evidentiary rulings by the trial court sustaining
Caltrans’s objections to most of the opinions in the plaintiff’s expert declaration, holding
plaintiff had forfeited any contention they were erroneous. (Salas, supra,
198 Cal.App.4th at pp. 1066-67, 1073-74.)
9
Plaintiff’s expert’s review of citywide speed studies indicated the average daily
traffic on Cherry Street at the intersection with Redeker from 2006 up to the time of the
accident ranged from 18,348 to 27,212 vehicles, indicating that roughly 80 million
vehicles passed through the intersection during that time without the occurrence of a
single vehicle-pedestrian accident similar to the one that injured Thimon. Similar
statistics have led other courts to conclude there was no dangerous condition. (Salas,
supra, 198 Cal.App.4th at pp. 1064, 1071 [31.5 million vehicles over 10 years with no
accidents]; Mixon, supra, 207 Cal.App.4th at p. 138 [7.8 million vehicles over five years
with only one accident].) Such evidence tends to prove that any risk is remote, rather
than constitutes a risk that meets Government Code section 830’s requirement that it be
“substantial.”
21
STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
Thimon v. City of Newark (A152093)
22
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Dennis Hayashi
Counsel:
Brady Law Group, Steven J. Brady; and Laura S. Liccardo for Plaintiff and Appellant.
McDowall Cotter, David S. Rosenbaum and Jennifer A. Emmaneel for Defendant and
Respondent.
23