Government Liability Update

Claim for Failure to Provide Adequate Warning Barred by Design Immunity Where Warnings Addressed by Plans

In Stufkosky v. California Department of Transportation, ordered published November 28, 2023, the Second District Court of Appeal, Division 6 affirmed summary judgment in the state's favor based on design immunity.  On a state highway, a vehicle struck a deer.  The impact sent the deer into the opposing lane, where it struck another vehicle.  That vehicle veered across the centerline and collided with the vehicle driven by the plaintiffs' decedent.  At the roadway portion where the accident occurred, a four-foot-wide painted median with rumble strips separates traffic.  Six deer warning signs appear along the 15-mile segment of the roadway where the accident occurred.  The closest one facing westbound traffic is approximately a mile from the accident site; the closest one facing westbound traffic two miles away, a position it was moved to after a request from the Department of Fish and Game.  The plaintiffs sued the state for maintaining a dangerous condition of public property, alleging the roadway's design, lack of deer crossing signs, and high speed limit.  The trial court found design immunity under Government Code section 830.6 was a complete defense to the plaintiffs' claims.

The appellate court agreed.  The state established the elements of design immunity.  The plaintiffs' allegations allege the required causal connection, by alleging that the state designed the roadway without certain safety features they contend would have made it safer.  The state satisfied the burden of establishing discretionary approval of the plan by submitting detailed plans for the area of the roadway where the accident occurred, and by a traffic engineer attesting to the applicable design standards and how the state addressed the dangers posed by deer entering traffic and vehicles crossing the median.  The entity need not submit evidence that it considered a particular design feature but decided not to include it.  Limiting design immunity to those features expressly considered would be tantamount to requiring public entities to address all conceivable design features during the approval process. They need not do so.  The state produced substantial evidence that the design was reasonable.  The plaintiffs did not dispute the plans  were properly approved and complied with prevailing design standards. Nor did they dispute the state placed deer warning signs east and west of the accident site. These facts alone are sufficient to show the approved design plans were reasonable. The state also submitted a traffic engineer's declaration that the accident rate for the area was below the statewide average for similar locations; that a state system for determining whether median barriers would improve safety did not identify the system, due to insufficient centerline collisions;  that no additional deer warning signs were warranted; that the speed limit accorded with the vehicle code; and that the state reasonably approved all relevant plans before construction and that the design was reasonable.  The plaintiff's expert's disagreement did not eliminate substantial evidence of reasonableness.  The appellate court rejected the plaintiff's argument that the trial court failed to address their separate and independent allegation that the state created a dangerous condition by failing to warn adequately of deer crossings, and that under Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639 design immunity did not bar this claim.  Tansavatdi declined to decide the issue presented here:  whether design immunity affects a failure to warn claim when a public entity produces evidence that it considered whether to provide a warning.  The state produced evidence that its design plans specified the quantity and placement of deer crossing signs.  The plaintiffs disputed only that the state warned motorists of this danger adequately.  The trial court resolved that issue in the state's favor.  Substantial evidence supports that finding.

Public Employee's Dangerous Condition Suit against Employer for Injury on Employer's Property Barred by Exclusive Remedy Rule

In Jones v. Regents of the University of California, ordered published November 28, 2023, the Fourth District Court of Appeal, Division 3 affirmed summary judgment for the defendant regents.  An employee of the regents who worked on the UC Irvine campus was riding home from her work on a bicycle.  Ten seconds into her ride, while still on campus, she swerved and attempted to brake to avoid a trench, and fell off her bike, sustaining injuries.  She sued the Regents for maintaining a dangerous condition of public property.  The trial court granted the regents summary judgment, ruling that the plaintiff's exclusive remedy was workers' compensation.

The appellate court affirmed.  The premises line rule provides that after the worker enters the employer's premises, injury is generally presumed subject to workers' compensation until the employee leaves the premises.  Because the plaintiff's injuries occurred on the employer's campus, just after she left her workstation, her injuries occurred in the course and scope of her employment as a matter of law.  The facts that she was leaving work, that she was not using an employer-designated vehicle or route, and that the campus is large do not raise triable issues.

Public Park Was Not a Dangerous Condition of Public Property Due to Lack of Surveillance Cameras

In Summerfield v. City of Inglewood, published October 25, 2023, the Second District Court of Appeal, Division 8 affirmed dismissal of a wrongful death suit after demurrer was sustained without leave to amend.  In January 2021, the plaintiffs' decedent drove to a park in the defendant city to play basketball.  While he was in his vehicle, he was shot and killed.  The plaintiffs asserted causes of action against the city, which owned and operated the park, for dangerous condition of public property and negligence.  The operative First Amended Complaint alleged that the park was supposed to be closed to the public due to COVID-19, but a city employee opened the park gym to the public in violation of the city's COVID protocol, which was a substantial factor in drawing the decedent and the perpetrator to the park.  The FAC alleged there were no security cameras in the parking lot, and a lack of attendants, control measures, and security.  The FAC alleged there had been "multiple shootings" at the park before the incident, but described only two incidents, in 1997 and 2012.  The FAC alleged that considering the multiple shootings, the lack of cameras presented attractive opportunities to criminals.  It asserted the city was liable under Government Code sections 815.6 (violation of mandatory duty).  The trial court ruled that the complaint, as amended, failed to identify a dangerous condition of public property.

The appellate court agreed.  Case law establishes that the presences or absence of security guards is not a physical characteristic of public property and thus not actionable as a dangerous condition of public property.  Further, public entities are immune under Government Code section 845 for alleged failure to provide security services or police presence.  The plaintiffs therefore cannot support their claim that failure to provide security at the parking lot was a dangerous condition.  The alleged failure to take adequate precautions from employees opening the gym to the public is also not a dangerous condition or defective in a way that foreseeably endangers those using the property.  Dangerous condition claims must be specifically pleaded, and must specify in what manner the condition constituted a dangerous condition.  The FAC failed to allege sufficient facts that the city's failure to provide adequate precautions was a dangerous condition of public property.  The allegation that the city failed to provide security cameras despite ongoing criminal activity failed because the FAC identified only two crimes over a 23-year span.  Further, third party criminal activity does not constitute a dangerous condition of public property unless the property itself is in a dangerous condition and that condition increases or intensifies the risk of injury to the public.  A parking lot is not dangerous because it lacks surveillance cameras; it needs surveillance cameras if it is dangerous.  The FAC failed to plead sufficient facts to show a causal connection:  that the absence of security cameras created a substantial risk of being shot.  The theory that the city failed to provide adequate warning about the dangerous condition failed because the FAC failed to allege a dangerous condition.  Further, a public entity has no duty to warn against criminal conduct.  Because a city cannot be held liable for nonstatutory negligence, the trial court properly sustained the demurrer against the negligence cause of action.  The plaintiffs failed to adequately show they could amend the complaint to state a claim.

One justice wrote a concurring opinion asserting that to establish a novel theory of tort liability, a plaintiff must establish the benefit would outweigh the burden.  The plaintiffs cannot establish that imposing a duty on public entities to place surveillance cameras and other security wherever crime has occurred would outweigh whatever benefit might result. 

The Hazardous Recreational Immunity Applied to Plaintiff Who Dove Off Groin into Water

In Carr v. City of Newport Beach, published August 29, 2023, a divided panel of the Fourth District Court of Appeal, Division 3 affirmed summary judgment for the defendant city.  The plaintiff walked onto a 20-foot groin jutting out from a beach, and dove off of it.  His head struck bottom and he was rendered a quadriplegic.  He sued the city for maintaining a dangerous condition of public property.  The trial court granted summary judgment based on Government Code section 831.7's Hazardous Recreational Activity immunity.

The panel majority affirmed the decision.  Among the activities that section 831.7 defines as a hazardous recreational activity is "[a]ny form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given."  The majority interpreted these provisions as operating in the disjunctive.  Therefore, any dive into water from other than a diving board or diving platform is a hazardous recreational activity, regardless of whether diving is prohibited and reasonable warning given.  The majority rejected the plaintiff's argument that triable issues existed regarding the gross negligence exception to the immunity.  The plaintiff contended that there was gross negligence because the city prohibited diving off groins yet did not post a warning of that prohibition, and because city lifeguards watched him dive and did not interfere.  The gross negligence exception does not apply to a failure to warn or protect against a risk inherent in the activity, such as the risk of striking an object when diving headfirst into water.  Further, the argument that the lifeguards did not enforce the law is barred by Government Code section 818.2's immunity for failing to enforce the law.

A dissenting justice opined that the majority's interpretation of section 831.7 would render the second part of the statute superfluous, and that the immunity applied only when diving from a structure where diving is prohibited and reasonable warning given.  The justice also opined that there were triable issues of fact on whether there was a dangerous condition.

Both the majority and the dissent asked the Legislature and the California Supreme Court to clarify section 831.7.

Motorcyclist Who Hits Cable Fence While Offroading Barred from Recovery by Hazardous Recreational Activity Immunity

In Altizer v. Coachella Valley Conservation Commission, published August 21, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment for the defendant commission.  The commission, a public entity, owns a 160-acre piece of unoccupied desert land, consisting of several parcels between residential areas.  Public paved streets run north-south of the property.  There are two east-west unpaved trails on the property.  The commission decided to fence off the perimeter of the property, using a fence consisting of 5/16" metal cable suspended 3.5 feet in the air and supported by posts every 15 feet.  Gates were installed.  The plaintiff was riding on one of the roads along the side of the property when he turned onto one of the off-road paths on the property.  After traveling about a quarter mile at 20-25 mph, the plaintiff approached the cable fence.  He did not see it until he was 10-15 feet away.  He braked but could not stop before hitting the cable.  He sustained serious injuries.  The commission moved for summary judgment, on the grounds that the fence was not a dangerous condition, and that even if it was, the commission was entitled to design immunity and hazardous recreational immunity.  The trial court granted the motion on the ground of design immunity.

The appellate court affirmed summary judgment on the ground that Government Code section 831.7's hazardous recreational activity immunity applied.  The statute provides that a public entity is not liable to any person who participates in a hazardous recreational activity for any damage or injury to property or persons arising out of that hazardous recreational activity.   The statute defines "hazardous recreational activities" in several ways.  Subdivision (b) initially defines it to mean " a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator."  But subdivisions (b)(1)-(3) also define as hazardous recreational activities a non-exclusive list of activities, including "off-road motorcycling . . . of any kind."  The plaintiff contended there was a triable issue of fact on whether he was engaged in a recreational activity, because he was traveling across the commission's property to avoid traffic rather than for recreation.  But subdivision (b)(3), which includes off-road motorcycling, focuses on the activity, not the purpose.  The plaintiff was off-road motorcycling, and so was engaged in a hazardous recreational activity.  The plaintiff argued that subdivision (c)(1)(A)'s "failure to warn" exception applied.  Under this exception, the immunity does not apply where the injury is caused by "[f]ailure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose."  Here, common experience suggests that the plaintiff reasonably assumed the risk of colliding with natural and unnatural objects when he rode off-road through unpaved, unoccupied desert property, including fences of varying materials and sizes that demarcate property lines.  The commission had no duty to warn of the inherent risk of running into a cable fence.

Gov. Code, § 831.7

Fifth District Court of Appeal Disagrees with Other Appellate Courts’ Approach to Determining Whether Sidewalk Defect Is Trivial

 

In Stack v. City of Lemore, published May 3, 2023, the Fifth District Court of Appeal affirmed a judgment against the defendant city entered after jury trial.  The plaintiff was jogging his usual route around his neighborhood when he tripped over a raised slab of sidewalk.  The raised slab created two defects:  a first defect where the panel is elevated about 1-3/4” above the next panel; and a second defect caused by the lifted panel sloping slightly downward and creating a second elevated ridge where it meets with the following downward-sloping raised panel.  A layer of pine needles appears all along the base of the first defect, except at its outermost edges.  The plaintiff was familiar with both defects; he had jogged over the stretch of sidewalk some 300 times in the previous two years.  During this jog, the plaintiff saw the first defect as he approached.  But as he was striding over it, he was focused on the second defect ahead of him.  He caught his toe on the lip of the first defect and stumbled.  He had never fallen in the area before.  The plaintiff’s human factors expert opined that the second defect enhanced the fall risk for joggers, whose brains would be focused on the second defect while they were clearing the first.  The expert acknowledged that the first defect was clearly visible from 25 feet away.  The expert opined that the layer of pine needs at the base of the first defect also increased the fall risk, because they made it difficult to tell how high the first defect was by obscuring portions of the elevation’s face, and created a color issue making it more difficult to judge the contrast of the where the defect starts and ends.  The plaintiff sued the city for maintaining a dangerous condition of public property under Government Code section 835.  The city did not move for summary judgment.  The jury found the property in a dangerous condition at the time of the accident.  The city appealed.  For the first time on appeal, it raised the argument that the defect was not a dangerous condition because it was trivial under Government Code section 830.2.

 

The appellate court upheld the jury’s verdict.  It rejected the city’s argument that the defect was trivial as a matter of law.  The court rejected the two-step analysis previous appellate decisions have applied to determine whether a sidewalk defect is trivial as a matter of law.  Instead, the court applied “a holistic, multi-factor analysis.”  The court began with the size of the defect.  It rejected “dictum” in other cases suggesting that defects up to 1-1/2” are trivial.  It found more accurate the statement that when the size of the depression is more than 1”, courts are reluctant to find the defect not trivial as a matter of law.  The court found no firmly fixed arbitrary size below which the defect is trivial and above which danger becomes an issue of fact.  Instead, the court should not rely solely on the size of the defect.  The court further opined that a defect cannot be deemed trivial as a matter of law based only on size.  The minimum 1-3/4” height differential of the first defect weighed heavily against finding the sidewalk condition trivial as a matter of law.  Therefore, there must be a strong showing of other circumstances that made the defect not dangerous despite its height.  A fact finder could find the danger was aggravated by the presence of the two defects.  A jury could credit the human factors expert’s opinion that the two created a danger for joggers.  While the expert’s opinion that the defects increased the danger was not dispositive, it was relevant.  Further, reasonable minds could differ on whether the roughness of the lip of the first defect increased the risk of catching a pedestrian’s toe.  Although the overall obstruction was clearly visible, reasonable minds could differ on whether the full depth of the first defect and its danger would have been apparent to an approaching jogger in light of the dirt and pine needles at the base.  This also increased the danger.  The lack of evidence of prior accidents at this section, combined with plaintiff’s lack of prior accidents there, is relevant to the existence of a dangerous condition.  But the appellate court declined to follow other appellate courts that found the plaintiff’s familiarity with the property relevant to whether the defect was trivial.  On balance, the factors did not combine to create a risk so trivial, minor, or insignificant that the sidewalk condition must be held not dangerous as a matter of law.

Claim for Damages Stating Plaintiff Tripped on Uplifted Sidewalk Did Not Support Action for Tripping on Empty Tree Well

In Hernandez v. City of Stockton, published April 28, 2023, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city.  The plaintiff tripped and fell on a city street.  He presented a claim to the city alleging that he sustained injuries when he tripped and fell due to a "dangerous condition" on the city-owned "sidewalk surface," which he identified as an "uplifted sidewalk."  A liability claims investigator for the city inspected the sidewalk near the address given in the claim.  He was unable to locate any uplifted sidewalk.  The city sent the plaintiff's counsel a notice of insufficiency, stating that the city was unable to determine the loss location.  The notice requested photos, a map, or diagram showing the exact loss location, and advised the plaintiff he could submit an amended claim within six months of the incident.  The plaintiff did not respond to the notice.  After his claim was rejected, the plaintiff filed suit.  In his complaint, he alleged that the "sidewalk surface" had a "dangerous condition" that created an unspecified hazard.  During a deposition, the plaintiff testified he tripped and fell when he stepped into a tree well that had no tree in it.  In his deposition, he agreed that his fall was not caused by an "uplifted sidewalk."  The city moved for summary judgment, on the ground that the plaintiff was suing on a factual basis never reflected in his claim.  The plaintiff responded that his claim's statement that he tripped and fell due to "an uneven sidewalk surface" was the "factual equivalent" of what his claim stated, and that his complaint's allegations did not alter the theory of the nature of the dangerous condition.  The trial court granted the city's motion, ruling the claim and lawsuit were not based on the same factual basis.

The appellate court agreed.  A complaint is subject to dismissal if it alleges a factual basis for recovery that is not "fairly reflected" in the government claim.  The plaintiff's claim specifically and solely identified an "uplifted sidewalk" as the dangerous condition that caused his injuries.  His action premised liability on a different dangerous condition--a hole crated by an empty tree well.  Such a variance subverts the purpose of the Government Claims Act:  giving the public entity an opportunity to investigate and evaluate its potential liability and, where appropriate, avoid litigation by settling meritorious claims.  The complaint did not merely elaborate upon or provide further detail to a government claim based on the same fundamental facts; it premised liability on an entirely different factual basis.  The court rejected plaintiff's contention of substantial compliance.  Further, the fact that a city employee testified he knew the claim was based on plaintiff tripping on an empty tree well did not satisfy the claim requirement.  The claim presentation requirement must be satisfied even if the public entity actually knows the circumstances surrounding the claim.  Further, the employee only inspected the property after the claim was rejected, and testified only after the plaintiff disclosed in deposition that he tripped over an empty tree well.

Design Immunity Does Not Apply to Failure to Warn of Dangerous Condition of Which Entity Has Notice

In Tansavatdi v. City of Rancho Palos Verdes, published April 27, 2023, the California Supreme Court affirmed a lower appellate court decision that partially reversed an order granting the defendant city summary judgment.  While riding a bicycle on a city street, the plaintiff's decedent collided with a turning truck.  The plaintiff contended the street was a dangerous condition of public property because the portion of the street where the accident occurred lacked a bicycle lane.  She further contended that the city failed to warn of a concealed trap created by the absence of the bicycle lane.  The city obtained summary judgment based on design immunity under Government Code section 830.6.  The order granting summary judgment did not specifically address the plaintiff's failure to warn theory of liability.  The lower appellate court affirmed the grant of design immunity.  But it reversed summary judgment, because the trial court had not addressed the failure to warn cause of action.  The appellate court held that under Cameron v. State of California (1972) 7 Cal.3d 318 a public entity may be held liable for failure to warn of a a concealed dangerous condition even if the dangerous condition was caused by design immunity.  The Cameron case based this holding on Government Code section 830.8, which establishes immunity from liability for failure to place warning signs, but exempts warning signs necessary to warn of a dangerous condition that would not be reasonably apparent to those using the roadway with due care.  The lower court declined to follow Weinstein v. Cal. Dept. of Transp. (2006) 139 Cal.App.4th 52, which held that design immunity applies to failure to warn of a danger created by a design that is covered by the immunity.  The California Supreme Court granted the city's petition for review.

The Supreme Court agreed that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity form liability for failure to warn of the same dangerous condition.  Design immunity under Government Code section 830.6 immunizes liability for having created a dangerous traffic condition under Government Code section 835(a) (liability for a public employee negligently creating a dangerous condition), but does not necessarily immunize liability for failing to warn of a known dangerous traffic condition under Government Code section 835(b) (failing to warn or protect against a dangerous condition of which the entity had actual or constructive notice).  In addition to loss of design immunity due to changed circumstances, a public entity can be held liable for failure to warn of a dangerous condition of which it had notice, even if creation of the condition is covered by design immunity.  There are restrictions on that theory of liability.  First, the plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.  Second, failure to warn claims may be subject to a separate, more limited form of statutory immunity:  the signage immunity set forth in Government Code section 830.8.  Because of the "concealed trap" exception to section 830.8, the plaintiff must overcome signage immunity by establishing the accident-causing condition was a concealed trap.  Third, the plaintiff must prove that the absence of a warning was an independent, separate  concurring cause of the the accident, by establishing that the absence of a warning sign was a substantial factor in causing the accident.  The court declined to address whether a public entity can be held liable if the public entity is able to show that the presence or absence of warning signs was part of the approved design.  The court disapproved Weinstein and another case with a similar holding, Compton v. City of Santee (1993) 12 Cal.App.4th 591.  Further, while the court noted that a discussion in Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63 applying design immunity to liability under Government Code section 835(b) "is arguably in tension with some of our discussion in Cameron," it concluded that application of design immunity to section 835(b) was not the legal issue presented in Cornette, and was not intended to modify or overrule Cameron.

(Pollak, Vida & Barer, along with other counsel, represents the defendant city in this case.)

Mother Cannot Sue City for Bystander Emotional Distress based on Dangerous Condition Liability Absent Contemporaneous Awareness Property Condition Caused Accident

In Downey v. City of Riverside, published April 26, 2023, the Fourth District Court of Appeal, Division 1 reversed the dismissal of the defendant city after demurrer.  The plaintiff was speaking to her daughter via cellphone, giving the daughter directions, when the daughter's vehicle collided with another vehicle at an intersection.  The mother heard the collision, a long pause during which her daughter did not respond to her, and the statements of a person on the scene trying to find her daughter's pulse.  The plaintiff and her daughter contended that the accident was caused by a dangerous condition of public property based on defective traffic markings, signals, warnings, medians, and fixtures.  The trial court sustained the city's demurrer to the plaintiff mother's cause of action, on the ground that the complaint failed to establish contemporaneous sensory awareness of the connection between the city's tortious conduct and the daughter's injuries.  After allowing one amendment, the trial court denied further leave to amend, and dismissed the case against the city.

The court majority agreed that the trial court properly sustained the demurrer.  Although the plaintiff's sensory awareness of the daughter's injuries over the phone was sufficient to satisfy the element of bystander emotional distress requiring the plaintiff to be "present at the scene of the injury-causing event," the law also requires contemporaneous awareness of the causal connection between the tortfeasor's negligent conduct and the resulting injury.  Here, the allegations in the complaint did not establish the plaintiff's contemporaneous or meaningful understanding of a causal connection between the alleged deficient traffic signals and markings and the accident.  But the appellate court reversed the trial court's denial of leave to amend.  On appeal, the plaintiff argued that she could allege additional facts establishing that she had familiarity with, and knowledge and awareness of, the intersection and the dangerous conditions created by the city.  The court ruled that she should be given an opportunity to allege such facts.

One justice concurred in the result, but dissented from the majority's ruling that the demurrer was properly sustained. 

City Is Not Liable for Plaintiff Tripping over Negligently-Parked Dockless Scooter

In Hacala v. Bird Rides, Inc., published April 10, 2023, the Second District Court of Appeal, Division 3 affirmed in part and reversed in part a dismissal after demurrer.  Plaintiff, walking on a city sidewalk just after twilight, tripped on the back wheel of a Bird scooter sticking out from behind a trash can, and fell.  She and family members sued the city and Bird.  The complaint alleged that the city was vicariously liable under the Government Claims Act for its employees' alleged negligent failure to monitor Bird's compliance with its permit with the city (under which Bird agreed to restrictions on scooter parking, to remove improperly-parked scooters within two hours, and to educate its agents and customers to follow the city's parking standards) and to use the city's powers to impose fees on Bird.  The trial court sustained the defendants' demurrer without leave to amend.  The court concluded that a third-party user had negligently parked the scooter, and the defendants had no special relationship with any party that required them to protect the plaintiffs from the third party's alleged misconduct.

The appellate court affirmed the demurrer as to the city, on the ground that the city was immune from liability.  The complaint premised city liability on failure to enforce the permit.  Government Code section 821 immunizes a public employee from liability for injuries caused by failure to enforce an enactment.  Under Government Code section 815.2(b), the city's vicarious liability for its employees' acts was subject to this immunity.  The city was also immune from liability under Government Code sections 818.2 (failure to enforce law) and 818.4 (permit immunity).  The plaintiffs contended that the permit imposed mandatory, ministerial duties of enforcement on city personnel.  But the language of the permit, which stated that the city reserved the right to amend, modify, or change the terms and conditions of the program and take other steps at its discretion, directly contradicts plaintiffs' contention that the permit imposes mandatory duties.  The city had discretion to remove parked scooters or to revoke Bird's permit.  Plaintiffs argued that they could amend the complaint to state a claim for a dangerous condition of public property under Government Code section 835.  But the city cannot be held liable for third party negligence--such as a party negligently parking a scooter--absent a physical deficiency in the property itself that increased or intensified the condition of the property.  The city's sidewalks are not defective or dangerous pieces of property simply because third parties may improperly use them in a way that could cause harm to others.

The court reversed the demurrer as to Bird.  One justice dissented from that result.