Gov’t Liability for Dangerous Condition

August 31, 2011

By: Paul J. Lipman

On 8/31/11, the appellate court in Salas v. Caltrans (2011 DJDAR 13320) affirmed summary judgment for the state as against the family of the deceased pedestrian, who was struck and killed by a motorist as she was crossing from north to south in a crosswalk at a flat, unobstructed intersection at 7:00 a.m. in October. Pedestrian Paula Salas departed slightly from the crosswalk on it’s east side to stoop and examine a bag. Her companion saw the oncoming motorist with it’s headlights on coming from the west. He kept walking and was not hit but Paula was struck. Plaintiffs alleged that a contributing factor was a dangerous condition of public property including “lack of proper signage, controls or signals … placing crosswalk in the location without proper safety devices; failing to follow recommended standards as to the location of the crosswalk; failing to provide the recommended croswalk design for the location; and failing to properly enforce and/or control speed in the area”. Their expert was Robert Douglas. He declared that the area was dangerous, that 23 traffic collision reports from the area and Caltrans’ “Table C” report identifying the area as a “high-collision concentration” area pointed to its dangerous character, that his own study showed that the 85th percentile speed at 1000 feet from the intersection was 69 mph so that entering vehicles did not have the 7 1/2 seconds “corner sight distance” intersection entering time recommended by Caltrans, and that the crosswalk was difficult to see because there no bold diagonal lines; and that there was improper, inadequate signage. Specifically, Caltrans had decided to remove, but had not yet removed, a sign showing a pedestrian stick figure crossing, to be replaced it with a “down arrow” pointing to the crosswalk. In response, Caltrans objected to the accident reports as not similar, declared that the phase-out of the old sign had a grace period, and generally denied that the plaintiff’s showing amounted to a showing of a “dangerous condition”. The court agreed with Caltrans and granted MSJ. This ruling was affirmed. Gov. Code §835 requires plaintiffs to prove a “dangerous condition” which proximately causes an injury. “Dangerous” is defined 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 sued” (Govt. Code §830(a)). Sometimes, the dangerous condition can arise from an “amalgam” of factors, and if third party conduct is contributed to by a dangerous condition it may be actionable. “But it is insufficient to show only harmful third party conduct, like the conduct of a motorist … There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff”.

Here, Caltrans established that the intersection was flat and had no obstructed sight lines. There were signs: At 600 feet there was a sign announcing the upcoming street, at 445 feet another sign announced the crosswalk coming up, and the crosswalk marking itself existed at the scene. Further, the other accidents did not involve a pedestrian over a 10-year period, during which 30 million vehicles had passed through. This was enough to shift the burden to plaintiff on MSJ. Plaintiff’s evidence was insufficient, as the other accidents were dissimilar. The plaintiffs furthermore did not explain how the objections to the plaintiff’s expert’s declaration were wrong. “Simply claiming that Douglas is well qualified and that many factors must be considered in determining a dangerous condition fail to carry the burden to show error”. The trial court’s decision in throwing out the Douglas declaration was only challenged by generalities.

Thus, it is possible to prevail on MSJ in dangerous condition cases where the plaintiffs cannot muster substantial evidence of similar accidents or other indicia of dangerous condition. Courts are often loathe to conjure a dangerous condition out of a laundry list under an “amalgam” rationale where no actual evidence of dangerousness exists.