Government Liability Update

Where Entity Had No Notice of Concealed Trap at Accident Location, There Was No Issue of Fact on Whether Failure-to-Warn Claim Could Defeat Design Immunity

In Kabat v. Department of Transportation, ordered published December 19, 2024, the Fourth District Court of Appeal, Division 3 affirmed summary judgment for Caltrans.  A bicyclist was riding or walking her bike across a non-signalized marked crosswalk that crossed a freeway onramp when a motorist hit and fatally injured her.  There was a pedestrian crossing sign facing traffic 150 feet ahead of the crosswalk and another (with a sign below it of an arrow pointing down) at the north end of the crosswalk. The crosswalk is part of an interchange owned and controlled by Caltrans.  It was originally constructed by Caltrans's predecessor agency based on plans prepared and completed in 1967.  It underwent improvements twice, based on plans completed in 2006 and 2015.  The plaintiffs contended that the crosswalk was a dangerous condition of public property because the posted speed limit was too high, the bike path leading to it was dangerous and unsafe because it did not allow pedestrians and bicyclists a safe way to cross the highway; there were inadequate warnings and signs and insufficient traffic controls; and there was a "trap condition" where motorists approaching the onramp and pedestrians and bicyclists using the crosswalk could not see one another.  The trial court granted Caltrans summary judgment, because Caltrans established design immunity under Government Code section 830.6 and plaintiffs could not overcome the signage immunities under Government Code sections 830.4 and 830.8.  The trial court ruled that plaintiffs had failed to raise a triable issue of fact on the existence of a failure-to-warn claim, based on a concealed trap, that would be actionable despite design immunity.

The appellate court agreed.  It rejected plaintiffs' contention that Caltrans failed to establish the discretionary-approval element of design immunity.  The plaintiffs contended that Caltrans had to establish that the specific engineers who approved the 1967, 2006, and 2015 plans had been delegated or vested with discretionary authority to approve them.  Caltrans presented uncontradicted evidence through the declarations of Caltrans employees and a civil/traffic engineer's declaration that licensed engineers and Caltrans design oversight engineers approved the various plans before construction.  The Legislature has vested Caltrans with discretionary authority to approve highway plans and has required licensed engineers to sign off on them.  Caltrans can act only through its employees or agents.  The plan signatures reasonably support the uncontradicted inference that the plans received Caltrans's discretionary approval.  As for the failure-to-warn claim, public entities are entitled to signage immunity unless the plaintiff establishes that the dangerous condition at issue was a concealed trap, and that the public entity had notice of the dangerous condition.  The plaintiff must establish notice under a failure-to-warn theory even if the defendant entity created the dangerous condition.  Caltrans offered undisputed evidence that it maintains a database tracking the number and type of collisions on its onramps; and that in the decade before and including the day of the accident there were no accidents involving a bicyclist during the same time of day as the accident, despite over 13 million vehicles passing through the onramp.  This evidence established Caltrans had no notice of the alleged dangerous condition. A declaration by plaintiffs' expert that the crosswalk created a false sense of security,  that the lack of a signal constituted a trap because it rendered the area deceptive, and that the Caltrans database was inadequate to provide constructive notice did not raise a triable issue of fact on notice, because the opinions were conclusory.  Finally, the public entity did not have to provide evidence that it used the databases before the accident occurred to establish lack of notice.

City Did Not Have Actual or Constructive Notice of Ice Patch in Parking Lot, Despite Knowledge of Snowfall and Temperatures

In Maksimow v. City of South Lake Tahoe, published November 4, 2024, the Third District Court of Appeal affirmed summary judgment for the defendant city.  On the morning of March 26, 2020, the plaintiff slipped on a patch of ice, 3' x 4', in a public parking lot.  The ice was located near a car in the parking lot.  She sued the city for maintaining a dangerous condition of public property.  The city moved for summary judgment.  It presented evidence that the city received no liability claims concerning dangerous conditions in the lot, from January 2017 to the accident date.  It also presented evidence that there were no complaints or service requests for snow or ice removal from the lot in the 12 months before the fall.  The city had first become aware of the ice patch when the plaintiff presented her claim for damages.  The city presented evidence that the car near the ice had been identified for investigation as part of the city's abandoned vehicle abatement plan.  Photos of the vehicle on March 12, 2020 showed no ice or snow, and the pavement around the car appeared smooth and dry.  Photos taken by the plaintiff two to four weeks after the accident showed a small strip of snow on the passenger side of the car, and no ice or snow near the marked site of the fall.  The city presented evidence of its snow and ice removal plan.  The plaintiff presented evidence that the city issued a parking citation for the car on March 15, 2020, which cited a municipal code prohibiting obstruction of snow removal equipment.  The plaintiff presented photos from the city taken on that date, which showed the lot and car covered in several inches of fresh snow.  The parties submitted contradictory evidence from public weather agencies of the amount of snow that fell before the accident date.  The plaintiff presented a declaration from a snow expert criticizing the city's snow and ice removal.  The trial court sustained objections to both sides' agency evidence of snow fall.  It granted the summary judgment motion, finding that the plaintiff had failed to raise a genuine issue of fact on whether the city had actual or constructive notice.

The appellate court agreed.  The plaintiff failed to raise an issue on actual notice of the ice.  Evidence that the city had actual notice of substantial snowfall and the abandoned car did not establish actual notice of the ice patch, or that it would form near the abandoned car.  Evidence that employees were aware of circumstances that could conspire to create an ice patch at some indeterminate time was not enough.  The plaintiff also failed to raise an issue on constructive notice.  That the city had notice of substantial snowfall and the abandoned car by March 15 did not raise a triable issue on constructive notice of an ice patch 11 days later.  There was no evidence there was ice in the lot on March 15.  Even if snow and ice go together, both are transitory phenomena.  Average daily temperatures did not establish constructive notice of the presence of ice at any particular time.  A jury would have no way of knowing whether the accumulated snow and ice in the parking lot existed for such a period of time that the city, in the exercise of due care, could have discovered them and their dangerous character.

Plaintiff Who Hears Daughter's Crash and Is Aware Daughter Is Injured Need Not Know Dangerous Condition Caused Injury to Recover for Emotional Distress

In Downey v. City of Riverside, published July 22, 2024, the California Supreme Court reversed the lower appellate court's ruling, which in turn affirmed the trial court's demurrer.  The plaintiff was talking to her daughter on a cellphone when she heard the sounds of her daughter's car crashing.  She called her daughter's name multiple times, and was interrupted when a bystander asked her to be quiet while he listened for the daughter's pulse.  After the crash, the plaintiff and daughter sued the driver of the other car in the collision, the city, and the owners of private property adjacent to the intersection where the crash occurred.  They alleged the city was partly at fault for the accident because the traffic markings, signals warnings, medians, and fixtures were defective and created a dangerous condition of public property.  The trial court and appellate court (in a split decision) opined that the mother could not sue for negligent infliction of emotional distress (bystander emotional distress) because although she had contemporaneous sensory awareness that her daughter was injured in the accident, she did not at that time have awareness that the city's alleged property condition had caused the accident.

The Supreme Court rejected the lower court's holding that a bystander emotional distress claim requires contemporaneous awareness that the defendant's negligence caused the injury.  Courts had derived that rule from cases involving medical malpractice, where the plaintiff will often not be aware that an injury is being caused to the loved one without also being aware the defendant healthcare practitioner is committing negligence.  But neither California Supreme Court precedent nor considerations of tort policy support requiring plaintiffs asserting bystander emotional distress claims to show contemporaneous perception of the causal link between the defendant’s conduct and the victim’s injuries. Awareness of the injury-producing event, and the fact that it is causing injury, at the time it happens is sufficient.

Posts and Cable Delineating Vehicular Traffic from Pedestrian Pathway Were Integral Parts of Trail for Purposes of Recreational Trail Immunity

In Helm v. City of Los Angeles, et al. ordered published May 13, 2024, the Fourth District Court of Appeal, Division 1, the appellate court affirmed summary judgment for the defendants in a case alleging dangerous condition of public property.  The defendant city owns the area where the plaintiff was injured, and the defendant county maintains the area.  The county installed numerous discarded wooden telephone poles, two feet apart, to to create a defined barrier between vehicular traffic and trails down to a lake.  The poles block vehicular traffic but not pedestrian traffic.  The trails led to camping areas and a day-use area with a beach used for various recreational activities.  Two posts were eight-to-ten feet apart and spanned by a wire cable, two inches off the ground, that could be unlocked by park personnel for vehicular access.  The plaintiff saw three paths that led toward the beach area and water.  Two looked unsafe to him.  The third looked like the best option.  It was the space with the wire cable.  He did not see the cable, and tripped on it.  He sued the defendant entities for dangerous condition of public property, negligence, and premises liability.  The trial court granted the defendant entities summary judgment based on Government Code section 831.4 trail immunity.  The plaintiff contended there was a triable issue of fact on whether he was walking on a trail, and that the wooden poles and wire cable were not an integral feature of any trail.

The appellate court rejected these contentions.  Whether a property is considered a trail under section 831.4 turns on considerations including g (1) the accepted definitions of the property, (2) the purpose for which the property is designed and used, and (3) the purpose of the immunity statute.  The plaintiff identified the path as a trail during his deposition, and the defendants offered evidence that the pathway was a trail pedestrians could use to access the beach area.  The evidence conclusively established that the pathway was designed for recreational use.  Plaintiff intended to use the path to access the beach, and that it appeared others had used the path for the same purpose.  The purpose of the trail immunity statute supports the conclusion that the subject pathway to the lake was a trail, because the pathway allowed people to more easily access the beach where they could engage in water based recreational activities.  Trail immunity covers integral features of a trail.  The plaintiff contended that the poles and cable were not integral parts of the trail because their stated purpose was to confine vehicular traffic to the roadway.  But there was no intention for them to prohibit people from using the pathway to access the lake.  The poles and cable created a defined barrier and delineated the trails.  They also increased safety for people walking along the pathway by protecting them from vehicles.

Release for Charity Bicycle Ride Is Complete Defense against Dangerous Condition Liability

Update:  the California Supreme Court granted review of this case on May 15, 2024.

In Whitehead v. City of Oakland, published February 13, 2024, the First District Court of Appeal, Division 3 affirmed summary judgment for the defendant city.  The plaintiff participated in a multi-day group bicycle ride fundraiser from San Francisco to Los Angeles.  The plaintiff rode in a 50-mile training ride.  Before the ride, the plaintiff signed a release in which he expressly assumed all risks associated with the event, including using public streets where hazards such as broken pavement may be present. The document also released, waived, forever discharged, and covenanted not to sue the releasees from claims that may arise or result from the plaintiff's participation in the event.  The release defined the releasees as including the owners/lessors of the course or facilities used in the event. During the training ride, the plaintiff hit a large pothole, flipped over his handlebars, and suffered injury.  The plaintiff sued the city for dangerous condition of public property.  The trial court granted the city's motion for summary judgment, on the ground that the plaintiff's execution of the release barred his claim.

On appeal, the plaintiff argued that the release was invalid because it affected a public interest, and was thus invalid under Civil Code section 1668.  Case law establishes that private agreements made in the recreational sport context releasing liability for future ordinary negligence do not implicate the public interest and therefore are not void as against public policy.  In particular, bicycle racing is not sufficiently affected with the public interest so as to void clear and unambiguous exculpatory clauses.  These cases apply here, because the cycling event was a nonessential sports activity that did not affect the public interest.  The public interest in maintaining and providing public roads does not change this conclusion, because the focus is on whether the transaction for which the release was given is one that affects the public interest, not the allegedly negligent conduct by the party invoking the release.  The plaintiff also argued that if the release is enforceable, it could not absolve the defendant of liability for gross negligence.  But the plaintiff failed to raise a triable issue of gross negligence.  The plaintiff pointed to evidence that allegedly showed the city was missing data that would help prioritize repairing or repaving bikeways yet failed to take steps to verify its data were complete or obtain additional data.  But evidence that a city employee suspected underreporting of data concerning falls or collisions based on his personal observations does not constitute evidence that data material to the issue of gross negligence actually existed.  The speculative argument did not create a triable issue as to whether the defendant's conduct amounted to gross negligence.  The expert's opinion that the city should have inspected the street more frequently because it showed signs of "alligator cracking" and had patched a pothole in the area did not raise a triable issue of gross negligence, because conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.  The court also rejected the plaintiff's argument that the city had increased the risk of injury on the roadway by allegedly misprioritizing service requests to fill potholes.

Canal Immunity Applies When Canal Used for Unintended Purpose, Whether or Not Use Was Volitional

In Perez v. Oakdale Irrigation District, published January 8, 2024, the Fifth District Court of Appeal affirmed summary judgment for the defendant district.  The plaintiffs' decedents died when their motor vehicle overturned and ended up in a drain, and they drowned in irrigation water.  The plaintiffs alleged that public property owned, operated, possessed, used, constructed, built, repaired and maintained by the district was a dangerous condition of public property.  The district obtained summary judgment based on Government Code section 831.8, subdivision (b), which immunizes irrigation districts and the state from liability for an injury caused by the condition of canals, conduits, or drains used for the distribution of water "if at the time of the injury the person injured was using the property for any purpose other than that for which the district or state intended it to be used.”  This is referred to as canal immunity.  The plaintiffs appealed, arguing that the reference to "using the property" referred to volitional use.

The appellate court ruled that the term "using" in the statute referred to both volitional and non-volitional use.  The term "use" can refer to both volitional acts and nonvolitional acts.  The court reviewed the legislative history of the statute and of the Government Claims Act as a whole.  The history indicated a focus on narrowing immunity for dangerous conditions to foreseeable uses of property.  Both volitional and nonvolitional use of drains for unintended purposes can be unforeseeable.  Further, the language and history indicated that using the property in a manner it was intended to use was a carve-out from the immunity, and that all other uses were immune.  Therefore, the "use" term should be interpreted broadly.

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.