Case Name: Deanna Smith, et al. v. City Of San Jose, et al.
Case No.:? 2014-1-CV-272771
This is an action for 1) Dangerous Condition of Public Property and 2) Premises Liability.? Currently before the Court is the joint motion by Defendants Santa Clara Valley Transportation Authority (?VTA?) and Union Pacific Railroad Company (?Union Pacific?) for summary judgment only (the first cause of action being alleged only against VTA and the second cause of action being alleged only against Union Pacific).
Defendants? request for judicial notice of three documents is GRANTED as follows. Notice of a copy of the operative complaint (exhibit 1 to the declaration of Defense Counsel Richard North) is GRANTED pursuant to Evid. Code ?452(d).? Notice of a copy of Cal. PUC General Order No. 143-B (setting forth the ?Safety Rules and Regulations Governing Light-Rail Transit? effective Jan. 2000) attached as exhibit 3 to the North Dec. is GRANTED pursuant to ?452(b) and (c).? Notice of a June 16, 2016 Google Maps printout showing an overhead photo-view of the subject location (attached to the declaration of Joyce Fairley Ray as exhibit 2) is GRANTED pursuant to ?452(h) solely as a representation of what the location looked like on June 16, 2016.
Plaintiffs are bound by their Complaint on summary judgment as the pleadings limit the issues presented for summary judgment.? (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [?the pleadings determine the scope of relevant issues on a summary judgment motion.?].)? The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.? (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
?A defendant seeking summary judgment must show that at least one element of the plaintiff?s cause of action cannot be established, or that there is a complete defense to the cause of action.? ?? The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.?? (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)
First cause of action: dangerous condition of public property
Gov. Code ?830(a) defines a ?dangerous 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.?
?The term dangerous condition is statutorily 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 used?. As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts?. 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.? (Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1069-1070, internal citations omitted.) To prevail on a motion for summary judgment on the ground that certain property does not constitute a dangerous condition, the moving party must present evidence that would preclude a reasonable trier of fact from finding it more likely than not that the property posed a substantial risk of injury. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.)
While the absence of other similar accidents is relevant to the determination of whether a condition is dangerous, there is ?no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of non-dangerous absent other evidence.? (Lane, supra, 183 Cal.App.4th at 1346; see also Salas, supra, 198 Cal.App.4th at 1071 [stating that the absence of similar accidents is relevant, but not dispositive on the issue of dangerousness].)
The fact that Decedent, based on the Complaint?s own description of events, was not using ?due care? in entering the Stokes Street Crossing against properly functioning active and passive warning systems and attempting to cross diagonally through the crossing also does not by itself establish that a dangerous condition did not exist at the property.? ?The status of a condition as ?dangerous? for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care.? (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768; See also Murrell v. State of California (1975) 47 Cal.App.3d 264, 267 [stating that a condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as a concurrent tortfeasor].)
However, ?[e]ven though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.?? (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 132, internal citation omitted. See also Milligan v. Golden Gate Bridge Highway and Transp. Dist. (2004) 120 Cal.App.4th 1, 7 [citing Fredette in finding lack of suicide barrier did not create a dangerous condition as matter of law]; Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1183 [?With respect to public streets, courts have 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).? [Citation.]?]
Defendant VTA?s motion for summary judgment is GRANTED as it has shown that Plaintiffs cannot establish that a dangerous condition as defined by Gov. Code ?830(a) existed at the Stokes Street Crossing.? VTA has shown through admissible evidence (including the declarations of Mohamed Basma, Krisan Sabherwal, Michael Brill, Kermit Cuff, Victor Gutierrez, Peter Lim, Richard North and attached exhibits) that the active and passive safety features installed at the Stokes Street crossing had been approved by the relevant authorities and were functioning properly on the date of the accident.? Therefore it has met its burden to show that the Stokes Street Crossing does not create a substantial risk of injury when used with due care by members of the public.
When the burden shifts to Plaintiffs they are unable to raise a triable issue of material fact as to the existence of a dangerous condition of public property at the Stokes Street Crossing.? Deliberate refusal to heed properly functioning active and passive warning systems, including sounding alarms, flashing lights, lowered arms blocking automobile traffic, and the presence of warning signs including ?multiple tracks? and ?look both ways? signs, cannot be considered use with due care.? While decedent?s own behavior is not determinative, Plaintiffs have not presented evidence establishing that it is more likely than not that, when used with reasonable care and in a reasonably foreseeable manner, the Stokes Street Crossing creates a substantial risk of injury to the general public.? That Plaintiffs have shown that VTA commissioned and received reports documenting that pedestrians or bicyclists on occasion entered crossings on the Vasona light rail line against active warnings (alarms, lights, lowered traffic arms) and/or cut diagonally across the Stokes Street crossing intersection does not raise a triable issue of material fact because such behavior not only violates the law (Vehicle Code ?22451) but is also patently unreasonable.? That these reports suggested additional warnings to attempt to further deter this unreasonable behavior also does not raise a triable issue of material fact.? The essence of Plaintiffs? argument is the assertion that because VTA knew that some members of the public were willfully ignoring the properly functioning warning systems already in existence at the Stokes Street Crossing (and elsewhere), such behavior was therefore reasonably foreseeable and dictates a finding that a dangerous condition existed.? But as a matter of law such prior incidents cannot establish the existence of a ?dangerous condition? as defined by Gov. Code ?830(a) because ?[e]ven though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.?? (Fredette, supra, at 132.)
The fact that Plaintiffs? retained expert Mr. Ruzak opines otherwise is not sufficient to raise a triable issue.? ?[W]e observe that 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, supra, at 1189, internal citations omitted.)? While ?830.2 (minor defect) is not at issue here, the general principle is the same.? The Sun decision, like this case, involved a claim that a traffic death (of a pedestrian rather than a bicyclist) was caused by a dangerous condition of public property (a ?bulb out? sidewalk extension) where the retained expert similarly engaged in unwarranted speculation as to what exactly caused the fatal accident and what would purportedly have prevented it.
Because the existence of a dangerous condition has not been shown, it is not necessary for the Court to evaluate VTA?s claim that, if such a condition existed, it would be entitled to design immunity.
Second cause of action: premises liability
Premises liability is a form of negligence where one who owns or controls a premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. (See Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; CACI 1000.)
Union Pacific?s motion for summary judgment is GRANTED as it has put forth admissible evidence ? the ?Operations and Maintenance Agreement? with VTA itself (exhibit A to the declaration of Jonathan Pohle) and the declarations of Kenneth Ronsse & Mr. Pohle ?? sufficient to meet its initial burden to show that once the Agreement with VTA was entered into Union Pacific contractually had no control over or responsibility for the safety and warning systems at the Stokes Street Crossing (which as explained above are adequate to protect persons using the property with due care).
When the burden shifts Plaintiffs are unable to raise any triable issues of material fact.? Plaintiffs have not raised a triable issue as to the existence of a dangerous condition and they do not present any evidence that Union Pacific had any specific involvement in Decedent?s accident.? Therefore they cannot show a triable issue of material fact exists as to whether any purported negligence by Union Pacific was a substantial factor in causing Decedent?s death.