MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

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1 League of California Cities City Attorneys Department Annual Conference September 2006 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE Eugene P. Gordon Assistant City Attorney Office of City Attorney 1200 Third Avenue, Ste San Diego, CA Phone -- (619) Fax -- (619)

2 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE TABLE OF CONTENTS PAGE 1. Minch v. Department of California Highway Patrol, 140 Cal. App. 4th 895 (2006). HIGHWAY PATROL OFFICERS WHO DID NOT CREATE OR INCREASE A RISK OF HARM THAT CAUSED PLAINTIFF S INJURIES ARE NOT LIABLE FOR THE INJURIES Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 164 L.Ed 2d 650 (2006). POLICE OFFICERS MAY MAKE A WARRANTLESS ENTRY INTO A HOUSE TO RENDER EMERGENCY ASSISTANCE TO AN INJURED OCCUPANT, OR TO PROTECT AN OCCUPANT FROM IMMINENT INJURY Hernandez v. City of Pomona, 138 Cal. App. 4th ). A JUDGMENT FOR DEFENDANTS IN FEDERAL COURT UNDER SECTION 1983 DID NOT PRECLUDE A NEGLIGENCE ACTION AGAINST THE DEFENDANTS IN STATE COURT BASED ON THE SAME FACTS Anderson v. Warner, 451 F.3d 1063 (9th Cir., 2006). AN OFF DUTY LAW ENFORCEMENT OFFICER WHO COMMITTED AN ASSAULT ACTED UNDER COLOR OF STATE LAW FOR PURPOSE OF LIABILITY UNDER SECTION Perry v. East Bay Regional Park Dist., 141 Cal. App. 4th 1 (2006). SWIMMING AT A TIME WHEN LIFEGUARDS ARE NOT PRESENT IS A HAZARDOUS RECREATIONAL ACTIVITY FOR WHICH PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY...7 i

3 6. Weinstein v. Department of Transportation, 139 Cal. App. 4th 52 (2006). CALTRANS IS ENTITLED TO DESIGN IMMUNITY FOR A CROSS-MEDIAN COLLISION, AS SUBSTANTIAL EVIDENCE SUPPORTED THE REASONABLENESS OF THE ROADWAY DESIGN Metcalf v. County of San Joaquin, 139 Cal. App. 4th 969 (2006). A PUBLIC ENTITY IS NOT LIABLE FOR INJURIES CAUSED BY A DANGEROUS CONDITION OF ITS PROPERTY PREMISED ON NEGLIGENT CREATION UNLESS A NEGLIGENT OR WRONGFUL ACT OF AN EMPLOYEE CREATED THE DANGEROUS CONDITION California State Automobile Assn. v. City of Palo Alto, 138 Cal. App. 4th 474 (2006)(review & depublication denied). A PUBLIC ENTITY MAY BE HELD LIABLE ON A THEORY OF INVERSE CONDEMNATION FOR DAMAGES CAUSED BY BLOCKAGE IN A CITY SEWER MAIN EVEN THOUGH THE CAUSE OF THE BLOCKAGE IS NOT KNOWN...14 ii

4 HIGHWAY PATROL OFFICERS WHO DID NOT CREATE OR INCREASE A RISK OF HARM THAT CAUSED PLAINTIFF S INJURIES ARE NOT LIABLE FOR THE INJURIES 1. Minch v. Department of California Highway Patrol, 140 Cal. App. 4th 895 (2006). FACTS AND PROCEDURAL HISTORY The driver of a Volkswagen Jetta was involved in a single car accident on a twolane road with a double yellow line in the center and solid white fog lines separating the traffic lanes from the shoulder. To the north of the accident site, the road is straight such that southbound traffic would have a clear view of the site. To the south of the accident site, the road curves such that northbound traffic would be coming around a curve shortly before the accident site. The accident occurred around mid-day. It had been cloudy and raining, and the road was wet. Shortly after the accident, two Highway Patrol officers responded to the scene. They observed the Jetta upside down in a ditch next to the southbound lane of the road. The officers advised CHP dispatch that a tow truck was needed. Plaintiff, the tow truck operator who responded to the scene, undertook to extract the Jetta from the ditch. He relied on his own knowledge and experience, as neither officer gave him directions. Plaintiff turned on the tow truck s overhead amber beacons, flashing emergency lights, and headlights. He extracted the Jetta from the ditch, hooked it to the tow truck, and drove 15 to 20 feet forward onto the shoulder of the road. Plaintiff parked the tow truck facing southbound with its driver-side wheels resting on the solid white fog line. The officers did not direct Plaintiff to remain at the scene and did not direct him where to park. After the Jetta was successfully extracted, one officer left the scene. After speaking with the owner of the Jetta about insurance and other matters, Plaintiff went to the cab of the tow truck to get his receipt book. He approached the truck on the driver s side, i.e., traffic side. While Plaintiff was approaching his tow truck, the remaining CHP officer testified that he positioned himself across the road and to the south of the accident site. The officer stated that he used hand signals to warn northbound traffic to slow down as it came around the curve. Several northbound vehicles passed and heeded the officer s signals. However, the driver of a northbound pickup truck failed to immediately slow for the vehicle in front of him, and when he did hit his brakes hard, the truck veered to the left and slid out of control. The pickup struck the tow truck and Plaintiff, resulting in severe injuries to Plaintiff. Plaintiff brought a personal injury action against the CHP alleging that the two officers at the scene were negligent in failing to properly monitor and/or regulate traffic within the vicinity of the [accident scene]. Plaintiff moved for summary adjudication, asking the trial court to hold that the CHP officers owed him a duty of care and that no statutory immunity applied to the CHP. The CHP moved for 1

5 summary judgment asserting that its officers did not owe Plaintiff a duty of care and that it was immune from liability. The trial court denied Plaintiff s motion for summary adjudication, but granted the CHP s motion for summary judgment. The court held that the CHP officers did not owe a duty of care to Plaintiff and granted summary judgment in favor of the CHP. Plaintiff filed a timely appeal. COURT OF APPEAL DECISION The Court of Appeal affirmed the judgment of the trial court granting summary judgment in favor of the CHP. The appellate court held that under the circumstances presented, the CHP officers did not owe a duty of care in tort to Plaintiff. The well-known elements of a cause of action for negligence are duty, breach of duty, proximate cause, and damages. Artigilo v. Corning, Inc., 18 Cal. 4th 604, 614 (1998). The threshold element of the existence of, and scope of a defendant s duty is a question of law, to be decided by a court, not a jury. Avila v. Citrus Community College Dist., 38 Cal. 4th 148, 161 (2006); Kahn v. East Side Union High School Dist., 31 Cal. 4th 990, 1004 (2003). Ordinarily, a person who has not created a peril has no duty to come to the aid of another. Williams v. State of California, 34 Cal. 3d 18, 23 (1983). Knowledge of another s peril does not establish a duty. Davidson v. City of Westminster, 32 Cal. 3d 197, 205 (1982). However, under the Good Samaritan rule, a person who undertakes to come to the aid of another will be liable if his failure to exercise care increases the risk of harm, or the harm is suffered because of detrimental reliance upon the undertaking. Williams, 34 Cal. 3d at 23. These rules apply to law enforcement officers as well as private persons. Id. at 24. Here, according to the court, Plaintiff was unable to identify specific conduct by which the CHP officers created a risk of harm to Plaintiff. They did not affirmatively contribute to, increase, or change the risk which otherwise existed. After Plaintiff extracted the Jetta, the officers did not direct him to stay at the scene or tell him where to park. The officers did not say anything to indicate that they would guarantee Plaintiff s safety. Rather, Plaintiff s action is based on the generic claim that the officers did not adequately protect him from the risk of harm. Accordingly, the court concluded that the CHP officers did not owe a duty of care to Plaintiff. The court also held that the provisions of the CHP Officer Safety Manual did not establish a duty of care owed to Plaintiff. Evidence Code section 669 establishes a presumption of a failure to exercise due care when a person violates a statute, ordinance, or regulation of a public entity. Section provides that a rule, policy, manual, or guideline of state or local government setting forth standards for employees in the conduct of their employment shall not be considered a statute, ordinance, or regulation, unless 2

6 formally adopted in the manner necessary for the adoption of statutes, ordinances, and regulations. Here, the CHP Officer Safety Manual and its provisions relating to safety measures that should be undertaken at traffic accident scenes did not have the force of law as it was never adopted in the manner necessary for the adoption of a state law. According to the court, while the provisions of the manual may be admitted into evidence for the jury s consideration on the question of breach of duty, it may not be a substitute for judicial determination whether a duty was owed. POLICE OFFICERS MAY MAKE A WARRANTLESS ENTRY INTO A HOUSE TO RENDER EMERGENCY ASSISTANCE TO AN INJURED OCCUPANT, OR TO PROTECT AN OCCUPANT FROM IMMINENT INJURY 2. Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 164 L.Ed 2d 650 (2006). FACTS AND PROCEDURAL HISTORY At about 3:00 a.m., four police officers responded to complaints about a loud party at a residence in Brigham City, Utah. As the officers approached the house, they could hear from within an altercation occurring, some kind of a fight. It was loud and it was tumultuous. The officers heard thumping and crashing, and people yelling stop, stop and get off me. The noise seemed to be coming from the back of the house. After looking through the front window, and seeing nothing, the officers proceeded around back to investigate further. They found two juveniles drinking beer in the backyard. The officers entered the backyard, and saw through a screen door and windows an altercation taking place in the kitchen. One of the officers testified that four adults were attempting to restrain a juvenile whose fists were clenched. The juvenile eventually broke free, swung a fist and struck one of the adults in the face. The officer testified that he observed the victim of the blow spitting blood into a nearby sink. The other adults continued to try to restrain the juvenile, pressing him up against a refrigerator with such force that the refrigerator began moving across the floor. At that point, an officer opened the screen door and announced the officers presence. Amid the tumult, nobody noticed, and the officer entered the kitchen and again announced his presence. As the occupants slowly became aware that the police were on the scene, the altercation ceased. The officers subsequently arrested the owners of the house and charged them with contributing to the delinquency of a minor, disorderly conduct, and intoxication. In the trial court, the defendants filed a motion to suppress all evidence obtained after the officers entered the house, arguing that the warrantless entry violated the Fourth Amendment. The court granted the motion on the ground the entry was not justified by exigent circumstances, and both the Utah Court of Appeals and the Utah Supreme Court affirmed. 3

7 Brigham City filed a timely petition for a writ of certiorari with the U.S. Supreme Court. U.S. SUPREME COURT DECISION The U.S. Supreme Court unanimously reversed the judgment of the Utah Supreme Court which held that the warrantless entry into the house violated the Fourth Amendment. The U.S. Supreme Court held that the appropriate Fourth Amendment standard governing warrantless entries by police officers into homes in an emergency situation is whether the officers have an objectively reasonable basis for believing that an injured occupant needs emergency assistance or protection from imminent injury. The Court explained that the subjective motivations of the officers are irrelevant and have no bearing on whether a particular seizure is unreasonable under the Fourth Amendment. Therefore, according to the Court, it does not matter whether the officers entered the kitchen to arrest Defendants and gather evidence against them, or to assist the injured and prevent further violence. The Court concluded that the officers entry here was plainly reasonable under the circumstances. The officers were confronted with ongoing violence within the home. They observed an out of control juvenile punch an adult in the face, sending the adult to the sink spitting blood. Other adults were unable to totally restrain the juvenile. In these circumstances, according to the Court, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious or semi-conscious or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided. A JUDGMENT FOR DEFENDANTS IN FEDERAL COURT UNDER SECTION 1983 DID NOT PRECLUDE A NEGLIGENCE ACTION AGAINST THE DEFENDANTS IN STATE COURT BASED ON THE SAME FACTS 3. Hernandez v. City of Pomona, 138 Cal. App. 4th 506 (2006). FACTS AND PROCEDURAL HISTORY Plaintiffs are the parents, wife, seven minor children, and the estate of an individual who, while fleeing arrest, was shot 22 times by City police officers. Plaintiffs filed an action against the City and the four officers involved in the shooting in federal district court alleging causes of action under (1) section 1983 for the use of excessive force in violation of the Fourth Amendment, and (2) for common law negligence under state law. 4

8 The district court bifurcated the state and federal claims, and only the federal civil rights cause of action went to trial. The jury returned a general verdict in favor of the City and three of the officers. It could not reach a verdict as to the fourth officer. However, following the trial, the district court entered judgment in favor of the fourth officer. The district court declined to assume supplemental jurisdiction over Plaintiffs state law negligence claim and dismissed it without prejudice. The court entered a final judgment in favor of the City and the four police officers. After a final judgment was entered in federal court, Plaintiffs filed an action in state court against the same police officers alleging that the officers negligently shot and killed Plaintiffs decedent. The officers demurred to the complaint on the ground that, among other things, the federal court judgment barred the action. The trial court concluded that the federal court judgment barred Plaintiffs cause of action for negligence, and sustained the officers demurrer without leave to amend. Plaintiffs filed a timely appeal from the final judgment. COURT OF APPEAL DECISION The Court of Appeal reversed the judgment of the trial court. The appellate court held that neither res judicata nor collateral estoppel precluded Plaintiffs negligence action against the officers under the circumstances of this case. Under the doctrine of res judicata, a valid, final judgment on the merits precludes a party from relitigating the same primary right or cause of action in a subsequent suit. The violation of a single primary right gives rise to just a single cause of action which may not be split. Here, however, according to the court, an action for violation of the Fourth Amendment s prohibition against an unreasonable seizure of the person does not implicate the same primary right as an action for violation of the right to be free from negligent injury to his person. The nature of the harm in the former action is the violation of a constitutionally protected right, while the nature of the harm in the latter action is the violation of a common law right. The court explained that although some of the same facts are involved in both actions, the significant factor is the nature of the harm. Since an excessive force action under the Fourth Amendment and a personal injury action under common law negligence do not involve the same primary right or harm, the court concluded that the doctrine of res judicata did not bar Plaintiffs negligence cause of action against the officers and the City. The court further noted that even if only a single primary right were involved in this case, the federal court s discretionary refusal to exercise supplemental jurisdiction over the state claim would not bar further litigation of that claim in state court, because it was the federal court, not the Plaintiffs, who made the decision to split the cause of action between state and federal court. 5

9 The court also held that the doctrine of collateral estoppel did not bar Plaintiffs negligence cause of action against the Defendants. According to the court, the general verdict in favor of the officers on the excessive force claim did not adjudicate the question of their negligence, because negligence was not an issue before the jury in federal court. Since the issue of the officers negligence was not actually litigated and adjudicated in the federal trial, the court concluded that Plaintiffs negligence action was not barred by the doctrine of collateral estoppel. AN OFF DUTY LAW ENFORCEMENT OFFICER WHO COMMITTED AN ASSAULT ACTED UNDER COLOR OF STATE LAW FOR PURPOSE OF LIABILITY UNDER SECTION Anderson v. Warner, 451 F.3d 1063 (9th Cir., 2006). FACTS AND PROCEDURAL HISTORY Plaintiff and Defendant were slowly driving their own vehicles toward a parade in Mendocino County. Plaintiff was momentarily distracted and accidentally rearended Defendant s vintage pickup truck. Defendant got out of his truck, went back to Plaintiff s vehicle, opened Plaintiff s door, and began hitting Plaintiff in the face and neck. Defendant s wife, who had been a passenger, also got out of the truck. At the time of the accident, a probation officer, a friend of Defendant, had been driving his vehicle in front of Defendant. The officer got out of his vehicle and walked back to join Defendant and his wife. At the time of the assault, Defendant was employed by the County Sheriff s Department as the jail commander; he held the rank of lieutenant. At the time of the assault, Defendant was off duty and out of uniform. Plaintiff stated in his declaration that he heard someone call the police, and then a woman who Plaintiff later learned was Defendant s wife yelled, he is a cop. Plaintiff then asked Defendant if he was a cop, and Defendant replied that he was. Plaintiff then heard Defendant tell witnesses that he was a cop and to stay back. Plaintiff also heard the probation officer say that this was police business, and told people to move on. Plaintiff also saw Defendant, his wife, and the probation officer holding their hands up, telling the crowd to disperse, that it is a police matter and that Defendant was a police officer. Plaintiff filed a 1983 action in federal district court alleging that Defendant assaulted him under color of state law. The district court granted summary judgment in favor of the Defendant officer on the ground that Defendant had not acted under color of state law. Plaintiff filed a timely notice of appeal. NINTH CIRCUIT DECISION The Ninth Circuit reversed the order of the district court granting summary judgment in favor of the Defendant officer. The court held that Defendant was 6

10 acting under color of state law when he invoked his law enforcement status to keep bystanders from interfering with his assault on Plaintiff. Section 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State violates the civil rights of any person shall be liable to the party injured. To state a claim under section 1983, a plaintiff must both (1) allege the deprivation of a right secured by the federal constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). As a county jail commander, the Defendant officer s status under California law was that of a custodial officer, not a peace officer. He was not entitled to carry a gun while off duty, and did not have the authority to make warrantless arrests while off duty. The officer argued that because he did not have the authority to make a warrantless arrest of Plaintiff, and that his actions of identifying himself as a police officer and issuing commands to the crowd were not related to the performance of his duties as a custodial officer, he could not have been acting under color of state law within the meaning of 1983 when he assaulted Plaintiff. The court disagreed with the officer s contention. According to the court, it was clear that the officer pretended to act in performance of his official duties, and that his actions had the purpose and effect of discouraging bystanders from interfering. Further, by saying he was a cop and telling the bystanders to stay back, the officer invoked his governmental status to influence the behavior of those around him. Therefore, the court concluded that when the officer told the bystanders that he was a cop and ordered them to stay back, he was acting under color of state law within the meaning of SWIMMING AT A TIME WHEN LIFEGUARDS ARE NOT PRESENT IS A HAZARDOUS RECREATIONAL ACTIVITY FOR WHICH PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY 5. Perry v. East Bay Regional Park Dist., 141 Cal. App. 4th 1 (2006). FACTS AND PROCEDURAL HISTORY On a Sunday evening at about 7:00 p.m., a 14-year-old-boy drowned while swimming in Lake Temescal in the City of Oakland. The property is owned and operated by the Defendant Park District, a public agency. The lake has a public beach and swimming area. During swimming season, the lake s public beach is open and lifeguards are on duty from 11:00 a.m. to 6:00 p.m. When lifeguards are on duty, the Park District charges a fee to enter the beach and swimming area. On the day of the drowning, decedent and three others arrived at the lake at about 3:00 p.m. After fishing for about two hours, sometime between 5:00 p.m. 7

11 and 6:00 p.m., decedent, a friend, and some other children went to the beach. It was swimming season and four lifeguards were on duty. At approximately 5:30 p.m., the lifeguards began to make announcements that the lifeguards would be going off duty at 6:00 p.m., and that people would be swimming at their own risk. However, at 6:00 p.m., there were still many people in the water, and the lifeguards decided to remain on duty until 6:30 p.m. Announcements were made that the lifeguards would go off duty at 6:30 p.m., and at 6:30 p.m., three announcements were made that the lifeguards were off duty and that people would be swimming at their own risk. The head lifeguard on duty that day then went into the lifeguard station, did some paperwork, took a shower, and changed into her street clothes. At about 7:00 p.m., a little girl came to the lifeguard station and told the lifeguard that a boy had gone under the water and had not come back up. The lifeguard ran to her locker and changed into her swimsuit bottoms. She grabbed a radio, contacted the park s emergency control dispatch, and ran with the girl to the beach. A woman tried to push the lifeguard toward the water, saying, Get in the water. The lifeguard backed away and told the woman that she would go in when she found a last seen point. The lifeguard learned from people on the beach the location of the last seen point of the victim, which was near where some people were diving. She swam to where the divers were, and organized them into a pattern dive. After the third or fourth dive, decedent was found, and the lifeguard swam him into shore. It took about three minutes from the time the lifeguard entered the water to when she brought decedent onto shore. CPR was administered, and paramedics transported him to a hospital, where he was pronounced dead at 7:57 p.m. Decedent s parents filed a negligence and wrongful death action against the Park District. The District moved for summary judgment on the ground that it was immune from liability pursuant to Government Code section 831.7, the hazardous recreational activity immunity. The trial court agreed and granted summary judgment in favor of the District. Plaintiffs filed timely notices of appeal. COURT OF APPEAL DECISION The Court of Appeal affirmed the order of the trial court granting summary judgment in favor of the Park District. The appellate court held that the District was immune from liability pursuant to Government Code section 831.7, and that two of the exceptions precluding immunity otherwise provided for participation in a hazardous recreational activity (payment of a specific fee, and gross negligence) did not apply. Under section 831.7, public entities and employees are not liable to any person who participates in a hazardous recreational activity for any injury arising out of that activity. A hazardous recreational activity is generally defined as a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to 8

12 a participant or a spectator. The statute then defines specific hazardous recreational activities, including [w]ater contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that there was no lifeguard provided at the time. Here, the Court of Appeal agreed with the trial court that there was no triable issue regarding whether decedent was swimming at a time and place when lifeguards were not provided, whether warnings were given that the lifeguards were off-duty, and whether decedent should reasonably have known that there was no lifeguard on duty at the time. Thus, the activity in which decedent was engaged was, by definition, a hazardous recreational activity. Plaintiffs did not challenge this finding by the trial court. However, Plaintiffs contended that the exception to immunity in section 831.7, subdivision (c)(2) (permission to participate in the hazardous recreational activity was granted for a specific fee) applied in this case. The Court of Appeal disagreed, and explained that a simple reading of the statute demonstrates that the swim fee exception did not apply in the circumstances of this case. Under the statute, the specific hazardous activity is swimming without a lifeguard present, not swimming generally. Since there was no evidence that the swim fee was charged at times other than when lifeguards were on duty, the court concluded that the swim fee exception did not apply. Plaintiffs also contended that the exception to immunity in section 831.7, subdivision (c)(5) for gross negligence applied. Subdivision (c)(5) provides that the immunity does not apply if an act of gross negligence by a public entity or a public employee is the proximate cause of the injury. Here, Plaintiffs argued that the head lifeguard was grossly negligent in the performance of her duties in that (1) she took time to change back into her swimsuit before rendering aid; (2) she wasted time calming a woman down before entering the water; and (3) she dismissed the lifeguards at 6:30 p.m. while people were still in the water. The court rejected Plaintiffs arguments, and concluded that the lifeguard s conduct did not rise to the level of gross negligence or even ordinary negligence. Therefore, the exception to immunity for gross negligence did not apply, and thus the immunity provided in section for participation in a hazardous recreational activity was not precluded. 9

13 CALTRANS IS ENTITLED TO DESIGN IMMUNITY FOR A CROSS-MEDIAN COLLISION, AS SUBSTANTIAL EVIDENCE SUPPORTED THE REASONABLENESS OF THE ROADWAY DESIGN 6. Weinstein v. Department of Transportation, 139 Cal. App. 4th 52 (2006). FACTS AND PROCEDURAL HISTORY Plaintiffs second amended complaint alleged that a northbound vehicle crossed over a Highway 101 median in the City of Morgan Hill and collided with a southbound vehicle occupied by Plaintiffs. The driver of the northbound vehicle was killed and Plaintiffs were injured. Plaintiffs filed suit against CalTrans alleging that the State s property at the accident location was in a dangerous condition. CalTrans filed an answer in which it asserted as a defense that it was not liable for the condition of the property based on design immunity under Government Code section CalTrans filed a motion for summary judgment based on its design immunity defense. CalTrans submitted evidence that the plans for the portion of Highway 101 at the accident location were approved in 1982 by the appropriate State official, and the roadway was completed in accordance with the plans in Highway 101 was essentially straight at the accident location, and there were no sight restrictions. The median was 94-feet wide at that location; state median barrier standards did not require a barrier where the median was wider than 75- feet. The width of the median, south of the accident location was 70-feet, and a median barrier was added to that median in No median barrier was placed in the 94-foot wide median at the accident location. Although vehicular traffic volume on the roadway had doubled between 1980 and 2000, there had been only one prior cross-median collision near the instant accident location prior to Plaintiffs accident. South of the accident location, there were three northbound lanes which merged into two lanes. A warning sign on the right-hand side of the transition area stated LANE ENDS MERGE LEFT, and there were pavement arrows indicating that the number 3 lane was merging with the number 2 lane. There was no similar sign on the median side of the roadway. The trial court granted summary judgment in favor of CalTrans. The court found that CalTrans had established all the elements of design immunity, and that Plaintiffs had failed to produce substantial evidence of loss of design immunity. Plaintiffs filed a timely notice of appeal. COURT OF APPEAL DECISION The Court of Appeal upheld the trial court s decision granting CalTrans summary judgment motion. A public entity claiming design immunity must establish three elements: (1) a causal connection between the plan or design and the accident; (2) discretionary 10

14 approval of the plan or design prior to construction, and (3) substantial evidence supporting the reasonableness of the plan or design. Cornette v. Department of Transportation, 26 Cal. 4th 63, 69 (2001). Here, Plaintiffs conceded that the first and second elements were satisfied, but they contended that there was no substantial evidence to support the reasonableness of CalTrans decision to omit a median barrier at the accident location. However, the court determined that the applicable state standards for median barrier did not require a median barrier at the accident location. The median was too wide to justify a barrier under the width policy, there was no significant history of cross-median collisions at the location, and there were no gaps of less than five kilometers that required a barrier. The court also found that the absence of a median sign warning of the lane drop was part of the plan in conformity of the state s approved standards which allow a median side sign, but does not require one. Therefore, according to the court, substantial evidence supported the reasonableness of the design of the roadway. Since CalTrans had established by substantial evidence that the design of the roadway without a median barrier was reasonable, the court concluded that Plaintiffs were precluded from succeeding on their challenge to the reasonableness element as to the absence of a median barrier. The court also held that CalTrans had not lost the defense of design immunity, as Plaintiffs had failed to produce substantial evidence that the design of the roadway at the accident location had become dangerous due to changed physical conditions. According to the court, increased traffic alone does not cause a roadway to cease being in conformity with its design or applicable standards, unless a change in traffic volume changes the standards that apply. Here, however, Plaintiffs produced no evidence that increased traffic volume alone mandated a median barrier under applicable state standards. A PUBLIC ENTITY IS NOT LIABLE FOR INJURIES CAUSED BY A DANGEROUS CONDITION OF ITS PROPERTY PREMISED ON NEGLIGENT CREATION UNLESS A NEGLIGENT OR WRONGFUL ACT OF AN EMPLOYEE CREATED THE DANGEROUS CONDITION 7. Metcalf v. County of San Joaquin, 139 Cal. App. 4th 969 (2006). FACTS AND PROCEDURAL HISTORY Plaintiff was injured in a traffic accident that occurred at the intersection of Sperry Road and McKinley Avenue. Sperry Road ends at McKinley Avenue, forming a T-intersection that requires westbound motorists on Sperry to turn right or left. Before the intersection, there are railroad tracks that run parallel to McKinley, and Sperry rises in elevation to the railroad tracks. Sperry then descends from the railroad tracks into the intersection with McKinley. On Sperry, just east of the railroad tracks, there is a Stop Ahead sign, a railroad crossing sign, a stop sign, and a stop bar (two white lines on the pavement where motorists are required to 11

15 stop for the train). The stop sign is 89-feet from McKinley. On the west side of the tracks before McKinley, there is a stop legend (the word STOP on the pavement) and a stop limit line (a white line on the pavement where motorists are required to stop). Prior to the accident, Plaintiff was traveling westbound on Sperry Road. He made a complete stop before crossing the railroad tracks. He then crossed over the railroad tracks, and as he attempted to make a left turn onto McKinley Avenue, he collided with a truck proceeding northbound on McKinley. It is not known whether Plaintiff stopped at the intersection. He was unable to recall how the accident occurred because of injuries sustained from the collision. Plaintiff filed an action against the County alleging that the intersection constituted a dangerous condition of public property. At trial, the County s senior civil engineer in charge of the traffic division for 20 years testified that in 1984, 17 years before Plaintiff s accident, he evaluated the placement of the stop sign on Sperry Road. In his opinion, the existing location was the best place for the stop sign. If the sign was moved to the west side of the tracks closer to the intersection, it would be obstructed by the railroad sign. According to the engineer, a stop sign could not be placed on an island in the middle of the road on the west side of the tracks because there was not enough space and it would be knocked down by trucks that were turning. A civil engineer retained by the County as an expert witness on traffic safety issues agreed that the best location for the stop sign was in advance of the railroad crossing due to the fact that the tracks crossed the roadway, and that the road dropped down slightly as motorists approached McKinley. Plaintiff s expert witness, a civil engineer, opined that the intersection constituted a dangerous condition as motorists were stopping at the wrong place because they could not see the stop limit line or the stop legend. The court instructed the jury in accordance with the dangerous condition language in Government Code section 835. In a special verdict form, the jury found that the property was in a dangerous condition, but that the dangerous condition was not created by a negligent or wrongful act or omission of a County employee within the scope of his employment. The jury also found that the County did not have notice of the dangerous condition. Accordingly, the court entered judgment in favor of the County. Plaintiff filed a motion for a new trial on the ground that given the jury s finding that the intersection constituted a dangerous condition, the jury rendered an inconsistent finding on the question of whether a negligent or wrongful act of a County employee created the dangerous condition. The trial court denied the motion and Plaintiff filed a timely appeal. COURT OF APPEAL DECISION The Court of Appeal affirmed the order of the trial court denying Plaintiff s motion for a new trial and entering judgment for the County. 12

16 Government Code section 835 provides that a public entity is liable for injury caused by a dangerous condition of its property if the injury was proximately caused by the dangerous condition, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and 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) The public entity had actual or constructive notice of the dangerous condition... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Plaintiff contended that conduct by the County s civil engineer that created a dangerous condition of public property was negligent or wrongful per se under section 835(a). The court disagreed. In construing a statute, the court must give meaning to every word and avoid an interpretation that renders a word or phrase surplusage. Estate of MacDonald, 51 Cal. 3d 262, (1990). Here, according to the court, the Legislature could not have intended that any act by a public employee that creates a dangerous condition is negligent or wrongful per se. To construe the statute as proposed by Plaintiff would render surplusage the phrase negligent or wrongful. The court determined that substantial evidence supported the jury s finding that there was no negligent or wrongful conduct on the part of the County engineer that created the dangerous condition. According to the court, the testimony of the County engineer and the County s expert witness that under the circumstances, the stop sign was located in the best place, provided substantial evidence from which the jury could determine that there was no negligent or wrongful conduct that created the dangerous condition. Finally, the court held that substantial evidence supported the jury s finding that the County did not have notice of the dangerous condition. Ordinarily, when a public entity creates a dangerous condition, the notice requirements of subdivision (b) do not apply. This is because knowledge is presumed. Brown v. Poway Unified School Dist., 4 Cal. 4th 820, (1993). In this case, however, Plaintiff s theory of liability was premised on both negligent creation and notice. According to the court, although the County created the intersection and relevant signage, and was aware of the physical condition that it had created, there was evidence from which the jury could have found that the property was not dangerous when completed but, rather, became dangerous later in time. In such a case, Plaintiff was required to establish that the County had notice of the property s dangerous condition. However, there were no complaints about the intersection and there was nothing in the accident history of the intersection that should have alerted the County of the need to change the 13

17 location of the stop sign, or take other measures to control the possibility of an accident. Thus, substantial evidence supported the jury finding of lack of notice. A PUBLIC ENTITY MAY BE HELD LIABLE ON A THEORY OF INVERSE CONDEMNATION FOR DAMAGES CAUSED BY BLOCKAGE IN A CITY SEWER MAIN EVEN THOUGH THE CAUSE OF THE BLOCKAGE IS NOT KNOWN 8. California State Automobile Assn. v. City of Palo Alto, 138 Cal. App. 4th 474 (2006)(review & depublication denied). FACTS AND PROCEDURAL HISTORY Plaintiff is the homeowners insurance carrier for a residence located in the City of Palo Alto. The residence sustained property damage as a result of two separate raw sewage backups into the home that occurred over a two month period. The sewer main servicing the subject property was constructed approximately forty years before the backups occurred. The sewage of Plaintiff s insured is carried away from the home via a lateral sewer pipe, four inches in diameter that connects to the main sewer pipe in the center of the street. The first sewage backup was determined by Plaintiff to have been caused by tree root intrusion in the sewer lateral located on the homeowners property. The existing lateral was porous clay material that allowed the tree root intrusion. Plaintiff authorized the replacement of the homeowners portion of the lateral, which extended from the house to the sidewalk, as well as the City s portion of the lateral that extended from the sidewalk to the main sewer line under the street. After the repairs were complete, the homeowners moved back into their home. Almost immediately thereafter, the home was again flooded with raw sewage. A video inspection authorized by Plaintiff found the replaced lateral to be clear of debris and in perfect condition. However, the inspection showed that there were tree roots intruding into the City s main at the joint connecting the homeowners lateral to the City s main. The video inspection also revealed toilet paper and effluent on the tree roots in the main, and that the main was half filled with standing water. Plaintiff paid the homeowners claims, and subsequently brought an action as subrogee against the City under theories of inverse condemnation, trespass, nuisance, and negligence. Plaintiff did not seek reimbursement for the payments it made in regard to the first backup; rather, it claimed that the City was only liable for the second backup. Both sides waived jury, and the matter was tried before the court. Plaintiff provided evidence of three potential causes of the second backup: (1) the existence of tree roots invading the porous clay pipe of the sewer main; 14

18 (2) the testimony of a plumbing expert that the slope of the main was insufficient to effectively carry sewage away from homes; and (3) the existence of standing water filling one-half of the main, as observed by video inspection one day after the second backup. The City presented evidence that its maintenance program for the sewer main was to hydroflush it every two years. The subject sewer main was hydroflushed one and a half years prior to the first backup. The evidence also established that the only sewage overflows that occurred on the subject street were to the home of Plaintiff s insured. At the conclusion of the court trial, the court ruled in favor of the City. In its statement of decision, the court found that although the sewage backup was caused by a blockage in the City s sewer main, Plaintiff failed to prove an essential element, namely, how or why the blockage in the City s main occurred. Plaintiff filed a timely notice of appeal. COURT OF APPEAL DECISION The Court of Appeal reversed the judgment of the trial court in favor of the City. The appellate court concluded that Plaintiff had established all of the elements of the inverse condemnation claim. Here, there was no dispute as to three of the elements of the inverse condemnation claim: (1) Plaintiff s insured owned the property that was damaged by the sewer backup; (2) the property was taken or damaged; and (3) the City s sewer drain system was a public project. The issue in the case related to the fourth element of proximate causation. The City argued that simply because a blockage occurred in the main does not in itself establish liability under a theory of inverse condemnation. Rather, Plaintiff must prove that the public work as designed, constructed and maintained caused the damage. Plaintiff contended that requiring it to show how or why the blockage occurred elevates the standard for inverse condemnation from strict liability, where no fault need be shown, to a negligence or fault-based action. The court concluded that inverse condemnation liability may be established where the public improvement constitutes a substantial factor in causing the damages. According to the court, even where an independent force contributes to the damage, the public improvement remains a substantial concurrent cause if the injury occurred in substantial part because the improvement failed to function as it was intended. Here, the court explained that the purpose of the sewer main was to carry waste water away from the residence. The sewer failed to carry waste water away from the residence of Plaintiff s insured because of a blockage in the City s main, and therefore, failed to function as intended. How or why the blockage occurred is irrelevant. Therefore, according to the court, the City is liable under inverse condemnation. 15

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