MEMORANDUM. Introduction. Public Golf Course Injury Fact Pattern. George would like to bring an action against the

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1 MEMORANDUM TO: Betsy Candler FROM: Student RE: Public Golf Course Injury: George s Damages Claim DATE: July 12, 2015 Introduction This memorandum is based on the factual information contained in the document Public Golf Course Injury Fact Pattern. George would like to bring an action against the City to seek damages for injuries suffered after being hit by a bike on a path on the basis of a dangerous condition of public property. George is likely to succeed in claiming damages from the City for his injuries due to the dangerous condition of the golf-cart path. Facts/Background According to the available information, potential plaintiff George was walking with Hanna along the golf-cart path in the municipal golf course. Bert was riding the bike on the same path in the opposite direction of George. George, Hanna, and Bert arrived at a hair-pin turn on the path at the same time. They did not see each other until one or two seconds prior to the incident because of shrubs that block the view to the other side of the turn. When Bert saw George, he swerved and fell off his bike. The bike hit George. George received a concussion, a broken wrist, and several bruises. Neither walking nor biking is permitted on the one-way golf-cart path and only paying customers playing golf are allowed. There is no information available whether Bert was riding in the right or wrong direction of the one-way path. A year ago, the City added signs with the rules and painted No Bikes or Walking Allowed on the paths. The golf course does not enforce the aforementioned rules. For a year and a half prior to the crash, the City had received complaints regarding these shrubs. 1

2 Discussion The determination of whether the City is liable for George s injuries hinges on whether the shrubs blocking the view in the hairpin turn of the one-way golf-cart path were a dangerous condition of public property that caused George s injury. In California, the government s liability for a dangerous condition of its property is governed by section 835 Cal. Gov. Code. Swaner v. City of Santa Monica, 150 Cal.App.3d 789, (1984). Section 835 of the Government Code stipulates the four prerequisites for a damages claim against a public entity for injuries caused by the dangerous condition of public property as follows: [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, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] [ ] The public entity had actual or constructive notice of the dangerous condition under Section [Gov. Code] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. 1. Dangerous Condition Pursuant to section 830(a) of the Government Code, dangerous condition means 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. The plaintiff s negligence does not affect the determination of a dangerous condition if a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care. Swaner, 150 Cal. App. 3d. at 799 (emphasis in original). Conversely, if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care the property is not dangerous by virtue of section 830(a) Gov. Code. Id. Similarly, third-party negligence does not negate the existence of a dangerous condition. Id. No dangerous 2

3 condition exists if the property has no inherent defect meaning that the wrongful conduct of a third party is unrelated to the property. Cf. Avedon v. State, 186 Cal. App. 4th 1336, (2010) (holding wrongful conduct of third parties unrelated to the condition of the public property does not constitute a dangerous condition and finding that the allegations in the present case suggest no inherent defect). A dangerous condition exists if the property is a in a dangerous condition to foreseeable users even if those persons use the property for a purpose for which it is not designed to be used or for a purpose that is illegal. Swaner, 150 Cal. App. 3d. at 809. According to the golf course s regulations, the path at issue is for use by golf carts only. Although pedestrians are not allowed on the golf-cart path pursuant to the regulations, pedestrians are likely to use the path nevertheless, be it that golfers prefer to walk or that nongolfers use the golf course to go for a walk. This is particularly the case when as here the regulations are not enforced. George and Hanna had used the path regularly in the past. Despite the lack of information on common use, it can be assumed that they were not the only pedestrians to regularly use the path. Even if pedestrians were not allowed on the path, this use was foreseeable. Bikes were not allowed on the path either. Whereas there is no information on general bike use, Bert rode his bike frequently in the summer. It is a common leisure activity to ride a bike in a park. Contrary to walking, however, this activity has no connection to golf courses and, therefore, it could be argued that the use of the path by bikes was not foreseeable if said use had been uncommon. Since the golf course did not enforce the rules, however, it was foreseeable that people would ride bikes on the paths. It follows that the use of the path by pedestrians and bikes was foreseeable in addition to the use by golf carts. For the purposes of the definition of dangerous condition, the foreseeable use needs to cause a substantial risk when used with due care according to section 830(a) Gov. Code. 3

4 The golf-cart path is to be used in one direction only. Therefore, the risk of a head-on collision exists only if the path is used without due care. This does not necessarily mean, however, that the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care. Cf. Swaner, 150 Cal. App. 3d. at 799. The shrubs block the visibility of any foreseeable user (i.e. golf-cart drivers, pedestrians and bikers) in the hairpin turn even if they all go in the right direction. If a user slows down or fully stops in or right after the hairpin turn, a following cart or bike may crash into the preceding user. In case of a bike crashing into a pedestrian, it could be argued that this risk is lower if both users go in the right direction in comparison to a situation where one user goes the wrong way. Nevertheless, the risk of injury remains substantial. The situation is comparable to Swaner, in which case the court held that foreseeable negligent or even criminal third-party conduct (third parties car racing on the beach) may render the property dangerous in conjunction with the features of the property (no fence at the beach access). 150 Cal. App. 3d. at 804. Consequently, the property is not safe when used with due care in a foreseeable manner and, therefore, it is in a dangerous condition. 2. Injury Proximately Caused by Dangerous Condition Third-party conduct may break the chain of causation between the dangerous condition and the injury if the third party user s conduct was unforeseeable. Swaner, 150 Cal. App. 3d at 804 (citations omitted). However, if the third-party conduct was foreseeable, the causation stands. Id. In the case at hand, Bert s bike hit George leading to his injuries. As discussed above, the risk of injuries by bikes in the hairpin turn was foreseeable. Conversely, it was not necessarily foreseeable that a user would go the wrong way. This notwithstanding, the collision could likely not have been entirely avoided if Bert had gone the right way (assuming 4

5 that he was the one to go the wrong way in the case at hand) because the walking speed of George was not a necessary condition for the collision. Even if both users had gone the same way, Bert could have hit George from behind in the hairpin turn. The blocked visibility was the necessary condition to the accident regardless of which way the users were going. Thus, the third-party conduct was related to the condition of the property that had an inherent defect. The case at hand is distinct from Avedon, where the court found that people making a bonfire in a cave was not related to the lack of barriers preventing parking near the cave. Cf. Avedon v. State, 186 Cal. App. 4th at Without the shrubs, either George and/or Bert would have seen the other and avoided the accident. Consequently, the dangerous condition proximately caused George s injuries. 3. Dangerous Condition Created Reasonably Foreseeable Risk of Incurred Injury [Issue Analysis Omitted] 4. Notice of Dangerous Condition to Have Taken Measures [Issue Analysis Omitted] Conclusion The dangerous condition of the shrubs along the path at the City golf course created a reasonably foreseeable risk of the kind of injury incurred. Furthermore, the injury was proximately caused by the dangerous condition of the public property. Finally, the city had due notice to take actions. Thus, George is likely to succeed in claiming damages from the City for his injuries that were caused by the dangerous condition of the golf-cart path. 5