LARSON v. COUNTY OF SAN DIEGO

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Court of Appeal, Fourth District, Division 1, California.

Lisa LARSON et al., Plaintiffs and Appellants, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

D001720.

Decided: July 29, 1986

Monaghan & Metz and Brian D. Monaghan, John H. Metz, and Goebel, Shensa & Beale and Cheryl Shensa, San Diego, for plaintiffs and appellants. Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy County Counsel, and Phillip L. Kossy, Deputy County Counsel, San Diego, for defendant and respondent County of San Diego. John W. Witt, City Atty., Ronald L. Johnson, Sr. Chief Deputy City Atty., Eugene P. Fordon, Chief Deputy City Atty., and Kenneth So, Deputy City Atty., for defendant and respondent City of San Diego.

Lisa Larson and Erik Larson, minors, by their guardian ad litem, Donna Larson, and Donna Larson in her individual capacity (Larsons) sued the City and County of San Diego for damages for the wrongful death of their father and husband, respectively, Ronald Larson, allegedly caused by a dangerous condition of a public roadway.   They appeal a defense judgment entered on special jury findings pursuant to Government Code sections 830 and 835,1 and BAJI No. 11.53, there was a dangerous condition which was the legal cause of the death, but the accident did not occur in a reasonably foreseeable manner.   The Larsons contend not only that a new trial must be granted because the jury findings were inconsistent with law, but also that the trial court prejudicially erred in giving and refusing jury instructions, excluding evidence of prior similar accidents and permitting experts to give their opinions based on assumptions not present in the evidence.   We conclude the jury was erroneously instructed on the necessary requirements of public entity liability for injuries arising from a dangerous condition of public property pursuant to sections 830 and 835.   We reverse the judgment.2

FACTUAL AND PROCEDURAL BACKGROUND

Ronald Larson was walking westbound with traffic on the shoulder of Pomerado Road on his way to a bus stop.   Rain had fallen heavily the previous night and was falling lightly at the time.   Darren A. Thomas was driving westbound at the same time.   Intending to give Larson a ride, Thomas slowed his car which then slid onto the dirt shoulder striking Larson.   Alleging Pomerado Road at the site of the accident constituted a dangerous condition, the Larsons sued the City and County, among others, for wrongful death.

During the jury trial, Thomas testified to an approximate one half inch sheet of cascading water across the surface of the roadway, his approximate speed of less than 20 miles per hour in a 40 mile per hour zone at the point of impact, the improper banking of the roadway, a drop-off from the paved portion of the road to the shoulder, and how his car slid when he tried to stop to pickup Larson finally coming to a rest along a 200–foot wooden fence parallel to the curb.   He was not sure where Larson was in relation to the road at the time of impact, estimating from six to ten feet to 15–20 feet or even 30 feet.   Thomas was the sole surviving eyewitness of the accident.   Both parties produced expert witnesses who gave conflicting and lengthy testimony regarding the condition of the road, the curb, its superelevation, the drop-off to the apron and the further drop-off to the dirt shoulder alongside the road.   Defendants' accident and reconstruction expert hypothesized Thomas may have been driving approximately 50 miles per hour when he hit the decedent.   Moreover, one motorist who arrived shortly after the accident occurred testified the road was wet, but there was no water on the road surface.

The trial court instructed the jury on public entity liability for a dangerous condition on public property pursuant to BAJI Nos. 11.53 3 and 11.54.4  As to causation, the trial court gave BAJI No. 3.76,5 defining legal cause, and BAJI No. 3.77,6 regarding concurring causes.   The latter was given because the facts at trial presented at least two possible concurring causes of the accident, to wit:  a dangerous condition of Pomerado Road and Thomas' driving.   Finally, the trial court refused to give BAJI No. 3.79, as modified and requested by the Larsons, explaining when a third party's intervening negligence constitutes a superseding cause.7

The jury returned a special verdict finding Pomerado Road and the adjacent shoulder area at the location of the accident constituted a dangerous condition on March 17, 1979;  it was a legal cause of the accident;  but, the accident did not occur in a way which was reasonably foreseeable as a consequence of the dangerous condition of Pomerado Road and the adjacent shoulder area.

THE DISPOSITIVE ISSUE

Urging a new trial because the jury findings were inconsistent with settled principles of negligence law, the Larsons argue defendants are liable because the injury was reasonably foreseeable as a matter of law relying on Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210–211, 186 Cal.Rptr. 847.   In other words, endeavoring to construe the jury's special findings here, the Larsons contend its third finding the accident did not occur in a reasonably foreseeable manner was erroneous as a matter of law in light of the jury's two previous findings the road was exposed to the danger because there was no sidewalk and it was reasonable foreseeable a pedestrian would walk along the right shoulder of the road where the bus stop was located; Larson's injury was precisely and directly the result to be expected from the hazard of being hit by a car forced off the surface of the road veering uncontrolled onto the shoulder; and Larson faced a substantial risk of injury because the road created a risk of danger to persons using it with due case. Defendants respond by arguing the Larsons simply failed to meet an essential element of the statutory cause of action set forth within section 835 requiring them to establish the injury occurred in a way which was reasonable forseeable as a consuquence of the dangerous condition. Conseuqently, they characterize the Larsons' contention as seeking to relitigate the factual issue on appeal in order to obtain a more favorable determination. In other words, defendants assert substantional evidence supports the jury's special finging plaintiffs have failed to establish this element. Accordingly, in order to resolve these diverse assessments of the case as well as the propriety of the given instructions, we must first determine whether section 835 requires plaintiff establish the injury occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition as explained in BAJI No. 11.53. The source for this alleged requirement is the language within section 835 requiring that plaintiff establish ‘the dangerous condition created a reasonably foreseeable risk of the kink of injury which was incurred. ‘ For the reasons which follow, we conclude this language simply requires plaintiff establish proximate causation within the context of the common law test for liablility of whether the risk of such harm to plaintiff was reasonably foreseeable by the defendant governmental entity. In other words, section 835 incorporates a proximate causation standard predicated on common law principles and does not set forth a variant designed to more restrictively limit govern-in fact in a dangerous condition and was the legal cause of the injury.   Guided by Pappert, the Larsons emphasize the jury found Pomerado Road a dangerous condition because of its inadequate superelevation and two substantial vertical drops posing a substantial risk when used with due care in a foreseeable manner;  Larson, as a pedestrian, fell within the class of persons exposed to the danger because there was no sidewalk and it was reasonably foreseeable a pedestrian would walk along the right shoulder of the road where the bus stop was located;  Larson's injury was precisely and directly the result to be expected from the hazard of being hit by a car forced off the surface of the road veering uncontrolled onto the shoulder;  and Larson faced a substantial risk of injury because the road created a risk of danger to persons using it with due care.   Defendants respond by arguing the Larsons simply failed to meet an essential element of the statutory cause of action set forth within section 835 requiring them to establish the injury occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition.   Consequently, they characterize the Larsons' contention as seeking to relitigate the factual issue on appeal in order to obtain a more favorable determination.   In other words, defendants assert substantial evidence supports the jury's special finding plaintiffs have failed to establish this element.   Accordingly, in order to resolve these diverse assessments of the case as well as the propriety of the given instructions, we must first determine whether section 835 requires plaintiff establish the injury occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition as explained in BAJI No. 11.53.   The source for this alleged requirement is the language within section 835 requiring that plaintiff establish “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.”   For the reasons which follow, we conclude this language simply requires plaintiff establish proximate causation within the context of the common law test for liability of whether the risk of such harm to plaintiff was reasonably foreseeable by the defendant governmental entity.   In other words, section 835 incorporates a proximate causation standard predicated on common law principles and does not set forth a variant designed to more restrictively limit governmental liability for dangerous conditions on public property.

SECTION 835 DOES NOT REQUIRE PLAINTIFF TO ESTABLISH THE INJURY OCCURRED IN A WAY WHICH WAS REASONABLY FORESEEABLE AS A CONSEQUENCE OF THE DANGEROUS CONDITION OF THE PUBLIC PROPERTY

Preliminarily, “[s]ection 815 establishes sovereign immunity in this state except as provided in the Tort Claims Act or other statute.  [Citations.]”  (Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, 887, 182 Cal.Rptr. 73, fn. omitted;  Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453.)   However, the enactment of the Tort Claims Act has not altered the basic premise in governmental tort cases that “the rule is liability, immunity is the exception.”   Consequently, “courts should not casually decree governmental immunity” (Johnson v. State of California (1968) 69 Cal.2d 782, 798, 73 Cal.Rptr. 240, 447 P.2d 352);  for, “[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail” (Ramos v. County of Madera (1971) 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93).  (See Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792–793, 221 Cal.Rptr. 840, 710 P.2d 907;  Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 832, fn. 2, 196 Cal.Rptr. 38, 670 P.2d 1121;  Baldwin v. State of California (1972) 6 Cal.3d 424, 435–436, 99 Cal.Rptr. 145, 491 P.2d 1121.)8  Moreover, although public entity liability is statutory in nature, the provisions within the Tort Claims Act are to be construed against the background of general tort law;  for, “ ‘[t]he conceptual theory of statutory liability under the act is keyed to the common law of negligence and damages․' ”  (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, 205 Cal.Rptr. 842, 685 P.2d 1193, quoting Van Alstyne, Cal.Government Tort Liability Practice (Cont.Ed.Bar 1980), § 2.7, at pp. 36–37.)   Indeed, “[t]he exclusive sway of statutory rules does not foreclose the aid of common law tort doctrines and analogies in ascertaining and achieving imperfectly expressed statutory objectives [Citations].”  (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831, 87 Cal.Rptr. 173.)

Regarding governmental entity liability for a dangerous condition on its property, section 835 provides:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that 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 under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

“Dangerous condition” is statutorily defined within the Tort Claims Act 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.”  (§ 830, subd. (a).)

 Consequently, pursuant to section 835, plaintiff must first establish a dangerous condition as defined in section 830, subdivision (a).  “This phrase, however, does not require the plaintiff to prove that the third party ․ used the entity's property with due care;  ‘[r]ather, the statute means that the 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 concurrent tortfeasor.’ ”  (Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 121, 145 Cal.Rptr. 443, quoting Murrell v. State of California ex rel Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 267, 120 Cal.Rptr. 812;  Morris v. State of California (1979) 89 Cal.App.3d 962, 966, 153 Cal.Rptr. 117.)   Furthermore, the concurrence of a third-party's negligence as a proximate cause of plaintiff's injuries with that of the public entity's dangerous condition of its property does not immunize or exonerate the latter from liability.   (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 719, 159 Cal.Rptr. 835, 602 P.2d 755;  Morris v. State of California, supra, 89 Cal.App.3d at p. 966, 153 Cal.Rptr. 117.)

Next, once plaintiffs overcome the first hurdle of establishing a dangerous condition within the meaning of section 830, subdivision (a) existed at the time the injury was incurred, they must additionally prove under section 835 the injury was proximately caused by the dangerous condition, as well as the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, before being required to establish the requirements of either subdivision (a) or (b).   The issue of statutory construction before us is what does this latter phrase, “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,” precisely mean and hence what does it require plaintiff to prove.   Our dilemma is compounded by the punctuation of section 835 setting out separately the requirements of proximate cause and foreseeability of the kind of injury.9

Defendants and the dissent stress language in Van Alstyne's California Government Tort Liability Practice (Cont.Ed.Bar 1980), sections 3.25–3.26, pages 224–227.   Van Alstyne notes the meaning of the words “kind of injury” is not entirely clear, but that superficially they would appear to refer to the nature of the interest invaded—i.e., “whether it was reasonably foreseeable that the dangerous condition would result in death, personal injury, property damage or some other invasion of a protectable interest in ‘person, reputation, character, feelings or estate.’ ”  (Id. at p. 224, quoting § 810.8.)  “Under this view, the way in which the injury actually incurred would not be significant, while foreseeability of injury of that variety would be.”  (Id. at p. 224.)   Noting that dangerous condition cases invariably relate to personal property injuries which are clearly a foreseeable type of injury under this approach, Van Alstyne asserts a more likely interpretation of the phrase is that it defines “the public entity's duty by relating it to the manner in which injuries would foreseeably follow from its breach.”  (Id. at p. 225.)   Van Alstyne then relies on the following quote from the official statement within the Law Revision Commission's comment to section 835:

“Thus, a person landing an airplane on a public road might not be able to recover for an injury resulting from striking a chuckhole whereas a motorist might be able to recover from the injury resulting from striking the same hazard;  for it is reasonably foreseeable that motorist will be injured by such a defect, but is highly unlikely that airplanes will encounter the hazard.”

 Van Alstyne's construction of the phrase runs contrary not only to firmly established principles of common law negligence, but also judicial precedent interpreting the Tort Claims Act.   Other than the airplane and road-chuckhole illustration within the Law Revision Commission's comment to section 835, there appears to be no other support for this interpretation of the phrase.   Absent any indication the drafters intended to impose a narrower expression of foreseeability than that expressed by case law construing and developing the common law, we conclude section 835 simply requires plaintiff prove proximate causation as established by the common law while highlighting that even where third party negligent conduct is not reasonably foreseeable 10 liability will result where a dangerous condition created a reasonably foreseeable risk of the kind of injury which in fact was incurred.

The Supreme Court in Ballard v. Uribe (1986) 41 Cal.3d 564, 572, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, explained the various roles the concept of foreseeability plays in tort doctrine.   The Court pertinently commented that it may be relevant to a jury's determination of whether defendant's negligence is a proximate or legal cause of plaintiff's injury.

“In pursuing this inquiry, it is well to remember that ‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’  [Citation.]  One may be held accountable for creating even ‘ “the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.” ’   [Citations.]  Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm ․ not its precise nature or manner of occurrence.  [Citations.]”  (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57–58, 192 Cal.Rptr. 857, 665 P.2d 947, italics added.)

Recently, in Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710–711, 190 Cal.Rptr. 494, 660 P.2d 1168, our Supreme Court disagreed with the District's contention recovery for negligent infliction of emotional distress suffered by relatives who witnessed the drownings in the canal is not provided by section 835 and therefore barred by section 815.   The court explained:

“Section 835 imposes liability for a ‘dangerous condition [which] created a reasonably foreseeably risk of the kind of injury which was incurred․’  The term ‘injury’ is defined in section 810.8 as meaning ‘death, injury to a person, damage to or loss of property, or any other injury that a person may suffer to his person, reputation, character, feelings or estate, of such nature that it would be actionable if inflicted by a private person.’   A ‘dangerous condition’ is defined in section 830 as meaning ‘condition of property that creates a substantial ․ risk of injury when such property ․ is used with due care in a manner in which it is reasonably foreseeable that it will be used.’   The Law Revision comment to section 830 makes it clear that the injury resulting from a dangerous condition may be an emotional one:  ‘the definition of “dangerous condition” is quite broad because it incorporates the broad definition of “injury” contained in section 810.8.   Thus the danger involved may not be a danger of physical injury;  it may be the danger of injury to intangible interest so long as the injury is of a kind that the law would redress if it were inflicted by a private person.’  [Citation.]

“Under these provisions, an injury to ‘feelings' is compensable if it ‘is of the kind that the law would redress if inflicted by a private person.’   This imports a common law meaning into the statute which would include emotional distress.

“Emotional distress is a compensable injury when inflicted by a private person if the risk of such harm to plaintiff was reasonably foreseeable to defendant.  [Citations.]  This test of liability dovetails with the requirement of section 835 that the ‘dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.’

“Real parties have alleged such a foreseeable risk.   It is predictable that adult relatives would accompany children who are wading in the canal and that they would suffer emotional distress from watching them drown.  Section 835 encompasses that type of injury.”

The foregoing passage from Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, 710–711, 190 Cal.Rptr. 494, 660 P.2d 1168, clearly shows the Supreme Court has attached a meaning contrary to that speculated by Van Alstyne.   Rather, the Supreme Court has constructed the phrase “kind of injury” consistently with the existing common law rule that liability will exist for a compensable injury where the risk of such harm to plaintiff was reasonably foreseeable to a defendant in that the dangerous condition created the reasonably foreseeable risk of that general type of injury occurring.   Where the injury is of the kind that the common law will redress within the private sector, so may legal redress be obtained within the public sector under sections 830 and 835.

 Within the context of whether an intervening cause is superseding in character relieving the governmental entity of liability for a dangerous condition, our construction of the disputed phrase is consistent with the Supreme Court's holding in Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199, 60 Cal.Rptr. 499, 430 P.2d 57.   There, confronted by the intervention of third-party negligence, it declared the foreseeability test to be two-fold with regard to the act and the type of injury suffered.

“[W]here [an] injury was brought about by a later cause of independent origin ․ [the question of proximate cause] revolves around a determination of whether the later cause of independent origin, commonly referred to as an intervening cause, was foreseeable by the defendant or, if not foreseeable, whether it caused injury of a type which was foreseeable.   If either of these questions is answered in the affirmative, then the defendant is not relieved from liability towards the plaintiff;  if, however, it is determined that the intervening cause was not foreseeable and that the results which it caused were not foreseeable, then the intervening cause becomes a supervening cause and the defendant is relieved from liability for the plaintiff's injury.”  (See also Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210, 186 Cal.Rptr. 847.)

Akins was a dangerous condition case, also governed by the Tort Claims Act and precisely sections 830 and 835.11  Our construction simply echoes the holding of Akins, that a public entity may be held liable even though the intervening cause or negligent conduct of a third party is unforeseeable, if the type of injury incurred was reasonably foreseeable.12

 Moreover, our construction is consistent with the underlying import of the example in the Law Revision Commission's comment to section 835 regarding the airplane and the chuckhole in the public road.   That example is most meaningful when the disputed phrase is interpreted to relate to a reasonable foreseeability that the dangerous condition would cause the type of injury incurred because it is entirely unforeseeable that occupants of aircraft would find their proprietary or personal interests invaded by the dangerous condition of a roadway.   In other words, as Van Alstyne aptly states at page 225 of his treatise, “roads must be safeguarded against the kinds of injuries that otherwise would befall those who will use them with due care, including, e.g., pedestrians, bicyclists, motorists, truckers, ․” Accordingly, this disputed phrase simply requires the dangerous condition to create the foreseeable risk of that general kind of injury to foreseeable plaintiffs.   Here, the risk of a pedestrian at the roadside being struck and killed by a car which is caused to leave the roadway due, at least in part, to the road's dangerous condition, is foreseeable as a matter of law.13

Thus, BAJI No. 11.53 erroneously requires the jury to find “the injury occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition of the property.”   This requirement misleads the jury by encouraging it to violate the firmly established principle of proximate causation that only the general character of the event or harm, not its precise nature or manner of occurrence, need be foreseeable.   Moreover, within the factual context of this case where third-party negligence is involved, it contradicts the decisional rules set forth in Akins v. County of Sonoma, supra, 67 Cal.2d at page 199, 60 Cal.Rptr. 499, 430 P.2d 57, declaring a governmental entity is not relieved from liability towards a plaintiff for a dangerous condition where either the negligent conduct of the third party was foreseeable by the governmental entity or, if not foreseeable, the type of injury it caused was foreseeable.   Finally, it is inconsistent with the holding in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pages 710–711, 190 Cal.Rptr. 494, 660 P.2d 1168, attaching a meaning to the phrase “kind of injury” consistent with existing common law principles that liability will exist for a compensable injury if the risk of such harm to plaintiff was reasonably foreseeable to defendant and that the dangerous condition created the reasonably foreseeable risk of that general type of injury.   Accordingly, that requirement within BAJI No. 11.53 should be stricken.

 Here, the giving of the defective BAJI No. 11.53 requires reversal, as the jury ceased its deliberation process regarding liability upon finding the accident did not occur in a way which was reasonably foreseeable.   Absent that erroneous element, the jury would have proceeded through the specific inquiries of the special verdict form regarding liability, and, perhaps, onto damages.   It is at least reasonably probable a result more favorable to the Larsons would have been reached in the absence of the error.   (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  Pappert v. San Diego Gas & Electric Co., supra, 137 Cal.App.3d at p. 211, 186 Cal.Rptr. 847.)

DISPOSITION

The judgment is reversed.

I respectfully dissent.   The majority, following the big bang theory of creation, view this public entity liability case in an exploding universe of common law tort liability.   My telescope focuses on public entity liability for injuries occurring on public property as framed by three statutory prerequisites—a dangerous condition of property, an accident caused by that condition, and the accident having occurred in a way reasonably foreseeable as a consequence of the dangerous condition.   The majority finds this third statutory condition is simply a black hole in space without significance to an ordered view of public entity tort liability for a dangerous condition of property.   I disagree.   Governmental tort liability is fixed by the Legislature and is not coextensive with common law liability concepts.

The majority dismisses the Government Code section 835 1 third prerequisite for governmental liability, “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,” concluding the plaintiff need only establish proximate causation within the context of the common law test, i.e., whether the risk of such harm to plaintiff was reasonably foreseeable by the defendant governmental entity:

“In other words, section 835 incorporates a proximate causation standard predicated on common law principles and does not set forth a variant designed to more restrictively limit governmental liability for dangerous conditions on public property.”  (At p. 610 of typed maj. opn.)

I read section 835 differently.  “Foreseeability” as used in the third condition is not a gloss on the phrase “proximate cause” as used in the second.   The third condition adds an additional factfinding requirement to the determination of public entity liability for a dangerous property condition.   My analysis follows.

As the majority notes, liability of public entities is statutory in nature (§ 815), but common law principles of negligence, causation and liability may nevertheless be applicable.  (Petersen v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, 205 Cal.Rptr. 842, 685 P.2d 1193.)   However, “the intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances:  immunity is waived only if the various requirements of the act are satisfied.”  (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125;  Galli v. State of California (1979) 98 Cal.App.3d 662, 674–675, 159 Cal.Rptr. 721.)

The Tort Claims Act was enacted in 1963 specifically in response to two Supreme Court decisions abolishing sovereign immunity.  (See Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457;  Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465.)   The Legislature put a hold on the two decisions and the Law Revision Commission spent the better part of two years analyzing the problem, making recommendations and writing new statutes.  (4 Cal.Law Revision Com.Rep. (1963) 803, 804 & 807.)

The commission recommended the Legislature adopt the concept a public entity is immune except in stated circumstances (§ 815) rather than the converse, i.e., a public entity is liable unless the statute sets forth an exception.   The commission found this more workable and practical and in keeping with “imposing liability upon public entities within limits that are carefully described.”  (Op. cit. supra, at pp. 811 & 814.)

Section 835 was adopted virtually verbatim by the Legislature in the form recommended by the commission.  Section 835 reflects the commission's immunity concept by stating separately the three conditions which are required to be met before liability for harm occasioned by a dangerous condition of public property may be imposed.   The Legislature thus underscored a factfinder had to find (1) a dangerous condition and (2) the accident was proximately caused by the dangerous condition and (3) the accident occurred in a way reasonably foreseeable as a consequence of the dangerous condition.   The majority reads the third condition as included within the second.   This was not the legislative intent.   We turn first to law revision commission comments which carry great weight.  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 630, 87 Cal.Rptr. 481, 470 P.2d 617.)

Commission comments emphasize the third condition requires a separate finding of fact before imposition of liability:

“Thus, a public entity should not be liable for injuries resulting from the use of a highway—safe for use at 65—at 90 miles an hour, even though it may be foreseeable that persons will drive that fast ․”  And “public entities should not be required to guard against the potentialities of injury that arise from remotely foreseeable uses of their property.   To impose such liability would virtually require public entities to insure the safety of all persons using public property.”  (4 Cal.Law Revision Com.Rep., supra, at pp. 822 & 823.)

The Senate Legislative Committee Comment 2 set out in the codes also includes this requirement:

“This section is similar to the Public Liability Act of 1923, under which cities, counties and school districts are liable for injuries proximately caused by the dangerous conditions of their property.

“․

“This section requires the plaintiff to show that the injury suffered was of a kind that was reasonably foreseeable.   Thus, a person landing an airplane on a public road might not be able to recover for an injury resulting from striking a chuckhole, whereas a motorist might be able to recover for the injury resulting from striking the same hazard;  for it is reasonably foreseeable that motorists will be injured by such a defect, but it is highly unlikely that airplanes will encounter the hazard.”  (See Leg.Com.Comment, West's Ann.Gov.Code, § 835, p. 301.)

The concepts “proximate cause” (used in the second condition) and “foreseeability” (the third condition) have long been a source of confusion in actions predicated on common law negligence.  “[F]oreseeability of the risk” is seen as “a primary consideration in establishing the element of duty” (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36);  however, it has also been said foreseeability of an injury is equally pertinent to the consideration “whether a precedent act ․ proximately caused that injury.”  (Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 542, 6 Cal.Rptr. 65;  see and compare 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 496, p. 2761, & § 628, p. 2911;  see also Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 55–56, 192 Cal.Rptr. 857, 665 P.2d 947.)   When third party intervening conduct is involved (as here), the question of causation and foreseeability is especially pertinent.   (Id. at pp. 58–59, 192 Cal.Rptr. 857, 665 P.2d 947;  Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210, 186 Cal.Rptr. 847;  see also Ewart v. Southern Cal. Gas Co. (1965) 237 Cal.App.2d 163, 170–172, 46 Cal.Rptr. 631.)   Only the general character of the event or harm, not the precise nature or manner of an occurrence need be foreseeable.  (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49 at pp. 57–58, 192 Cal.Rptr. 857, 665 P.2d 947.)

More specifically, the term “proximate cause” is frequently used to denote “cause in fact,” i.e., an actor will not be held responsible for an injury unless the alleged misconduct actually contributes to the injury.  (4 Witkin, Summary of Cal.Law, op. cit. supra, §§ 622 & 623, pp. 2903–2905.)   However, proximate cause, if used as a legal term of art, also expresses the final policy determination the defendant should be held responsible for his conduct because his negligent conduct actually caused an injury which additionally was not too remote in time and consequence.  (See 4 Witkin, Op. cit. supra, § 620, p. 2901;  § 623, p. 2905.)   Foreseeability of the injury as a natural consequence of an actor's conduct is included within this concept of proximate cause.  (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49 at pp. 55–56, 192 Cal.Rptr. 857, 665 P.2d 947.)

While common law tort concepts of liability view foreseeability as included within proximate cause, section 835 by the separate statement of the three conditions precedent to public entity liability requires we give separate meaning to the third condition.   As we cogently remarked recently:

“Significance, if possible, should be attributed to every word, phrase, sentence and part of an act in pursuance of the legislative purpose, as ‘the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.’  [Citation.]”  (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

Other cases repeat this admonition:

“Statutes must be given a reasonable interpretation, with due regard to the language used.   In ascertaining the legislative intent ‘․ it is presumed that every word, phrase and provision employed in a statute was intended to have some meaning and to perform some useful office ․’  [Citation.]”   (People v. Kozden (1974) 36 Cal.App.3d 918, 922, 111 Cal.Rptr. 826.)

Rules of statutory construction mandate and logic dictates the term proximate cause as used in section 835 denotes actual causation rather than the final proximate cause determination establishing a defendant's liability, and “reasonably foreseeable” as used in the third is a separate factfinding requirement.   This is a reasonable and workable concept.  (Regents of University of California v. Superior Court (1970) 3 Cal.3d 529, 536–537, 91 Cal.Rptr. 57, 476 P.2d 457.)

Other authority supports this conclusion.   Van Alstyne's California Government Tort Liability Practice (Cont.Ed.Bar 1980) places cause in fact and foreseeability as two subheadings of a section on Proximate Cause (§ 3.25 a. Cause in Fact, p. 222;  § 3.26 b. Foreseeable Risk of Kind of Injury Incurred, p. 224).   Van Alstyne, a noted expert on governmental liability, concludes an affirmative answer to these two subtests establishes proximate cause and the final policy determination the defendant public entity is liable if a plaintiff can also prove the balance of the requirements of section 835.

Van Alstyne considered the meaning of the phrase “that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred” (§ 835).   He concludes the meaning of “kind of injury” is unclear.   A strict construction of the language would mean variety of injury and therefore would not include the way an injury happened.  (Op. cit. supra, § 3.26 b., p. 224.)   However, Van Alstyne, citing the commission comments 3 states a more likely interpretation of the phrase relates it “to the manner in which injuries would foreseeably follow from [a] breach.”  (Op. cit. supra, at p. 225.)

The “foreseeability” phrase in the third condition of section 835 embodies both the reasonable foreseeability of kinds of injury and the manner in which an occurrence causes an injury to happen.   This is a narrower expression of foreseeability than that expressed by case law when common law negligence is at issue.  (Compare Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947;  Pappert v. San Diego Gas & Electric Co., supra, 137 Cal.App.3d 205, 186 Cal.Rptr. 847 [only the general character of the event or harm, not the precise nature or manner of occurrence, need be foreseeable].)   The trier of fact must find the kind of injury and the specific manner in which the injury happened are reasonably foreseeable.   This comports with the history and rationale for enacting the Tort Claims Act (4 Cal.Law Revision Com.Rep., supra, 807 et seq.;  Williams v. Horvath, supra, 16 Cal.3d 834 at p. 838, 129 Cal.Rptr. 453, 548 P.2d 1125.)

The majority rely heavily on Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 190 Cal.Rptr. 494, 660 P.2d 1168.  Delta Farms, a pleading case, considered whether emotional distress constituted an injury within the meaning of the third section 835 prerequisite to governmental liability, i.e., the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.  Delta Farms concluded emotional distress suffered by mothers who watched their daughters drown in a waterway was such an injury.  (Id. at pp. 710–711, 190 Cal.Rptr. 494, 660 P.2d 1168.)   While Delta Farms refers to section 810.8 as imparting a common law meaning into the word “injury” as used in section 835 thus encompassing emotional distress, that opinion does not address the issue whether section 835 requires the trier of fact to find the reasonably foreseeable risk of injury.   Delta Farms does not read out the third prerequisite of section 835.   Instead, that requirement is affirmed by Delta Farm's conclusion the injury there suffered was an injury contemplated by section 835.

The majority cite Akins v. County of Sonoma (1967) 67 Cal.2d 185, 60 Cal.Rptr. 499, 430 P.2d 57 to support extinguishment of the third prong set out in section 835.  Akins, while noting the 1963 Tort Claims Act applies (id. at p. 192, 60 Cal.Rptr. 499, 430 P.2d 57), does not refer to section 835 or discuss the three elements of liability.

In Akins, a child fell from bleachers on public property and was injured.   The court held the negligence of the parents was relevant in determining the public entity liability because “a person does not act negligently if he cannot be expected to reasonably foresee the existence of an unreasonable risk of harm to another through the intervention of negligence of a third person.”  (Id. at p. 198, 60 Cal.Rptr. 499, 430 P.2d 57.)   Parental negligence was relevant on the issue of actual causation as “defendants would not be liable for plaintiff's injuries if, despite their negligence, plaintiff would have sustained the same injuries as a result of the negligence of his parents.”   (Id. at p. 199, 60 Cal.Rptr. 499, 430 P.2d 57.)   Finally, parental negligence was relevant as to the issue of proximate cause.

“In the instant case, for example, it could be argued that if plaintiff's parents were negligent in failing to exercise proper care for plaintiff's safety, their negligence constituted an intervening cause.   Following this line of reasoning, it would be incumbent upon the jury to determine whether the negligence of plaintiff's parents was foreseeable to defendants, or, if not foreseeable, whether it nevertheless resulted in a type of injury which was foreseeable to defendants.”  (Akins, supra, 67 Cal.2d at pp. 199–200, 60 Cal.Rptr. 499, 430 P.2d 57, italics added.)

Contrary to the majority view, Akins, sub silentio, recognizes and separates the second and third prongs of section 835—proximate cause and foreseeability of the type of injury.

Finally, the majority disposition of the case directs the trial court to enter a verdict for the plaintiffs.   The jury found the dangerous condition was the proximate cause of the accident.   The majority holds the risk to the Larsons' decedent foreseeable as a matter of law.   As under the majority view third prong foreseeability is swallowed up in the second condition concept of causation, there remain no triable issues.

The court correctly instructed the jury on the section 835 three conditions.   Substantial evidence supports the jury finding the accident did not occur in a way which was reasonably foreseeable as a consequence of the dangerous condition.

I would affirm the judgment.

FOOTNOTES

1.   All statutory references are to the Government Code unless otherwise specified.

2.   Our holding obviates the need to address the Larsons' remaining contentions.

3.   The trial court instructed in pertinent part:“Plaintiffs' cause of action against defendants is based upon and must meet the requirements of the law relating to the liability of a public entity for a dangerous condition of public property.Before plaintiffs may be entitled to your verdict under this law against defendants, you must find from a preponderance of the evidence:First:  that Pomerado Road and the shoulder area adjacent to it at the site of the accident was in a dangerous condition on March 17, 1979;Second:  that the accident of which plaintiffs complain was legally caused by the dangerous condition;Third:  that the accident occurred in a way which was reasonably foreseeable as a consequence of the dangerous condition;  andAs to the City of San Diego, that either:  [¶] (A) the dangerous condition was created by a negligent or wrongful act or omission of an employee of the City of San Diego or acting within the scope of his or her employment, or, [¶] (B) the City of San Diego had actual or constructive notice of the dangerous condition a sufficient time prior to the time of the accident so that measures could have been taken to protect against the dangerous condition.As to the County of San Diego, that either:  [¶] (A) the dangerous condition was created by a negligent or wrongful act or omission of an employee of the County of San Diego acting within the scope of his or her employment, or, [¶] (B) that the County of San Diego had actual or constructive notice of the dangerous condition a sufficient time prior to the time of the accident so that measures could have been taken to protect against the dangerous condition.”

4.   The court instructed:“A dangerous condition, as that term is used in these instructions, means a condition of property that creates a substantial 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 phrase ‘used with due care’ in the definition of a dangerous condition has reference to whether the condition would result in injuries when used with due care by the public generally.   That expression does not refer to the care used by any person in connection with this particular accident.“A condition is not a dangerous condition if the risk created by the condition was of such a minor, trivial, or insignificant nature in view of the surrounding circumstances that it did not create a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that such property would be used.”

5.   The court instructed:  “A legal cause of injury, damage, loss or harm is a cause which is a substantial factor in bringing about the injury, damage, loss or harm.”

6.   The court instructed:  “There may be more than one legal cause of an injury.   When negligent conduct of two or more persons contributes concurrently as legal causes of an injury, the conduct of each of said persons is a legal cause of the injury regardless of the extent to which each contributes to the injury.   A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.   It is no defense that the negligent conduct of a person not joined as a party was also a legal cause of the injury.”

7.   The Larsons' offered version of BAJI No. 3.79 provided:  “If you find that Pomerado Road at the site of the accident was in a dangerous condition, within the legal definition of that term, and that the dangerous condition was a substantial factor in bringing about the death of plaintiffs' decedent but that the immediate cause of the death was the negligent conduct of Darren Thomas, the defendant is not relieved of liability for such death if plaintiffs establish by a preponderance of the evidence:  [¶] 1. At the time that the dangerous condition existed the defendant realized or reasonably should have realized that a third person might act as Thomas did;  or [¶] 2. A reasonable person knowing the situation existing at the time of the conduct of the third person would not have regarded it as highly extraordinary that the third person had so acted;  or [¶] 3. The conduct of the third person was not extraordinarily negligent and was a normal consequence of the situation created by the defendant.”

8.   We are also mindful the Tort Claims Act was enacted after the Supreme Court's decision in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, abolishing the doctrine of governmental tort immunity.   As already noted, section 815 restored sovereign immunity in California except as provided in the Tort Claims Act or other statute.  “Thus the intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances:  immunity is waived only if the various requirements of the act are satisfied.”  (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 458 P.2d 1125.)

9.   The dissent concludes that because the legislature apparently desired to underscore a fact-finder had to find reasonable foreseeability in the cited context before a public entity could be held liable for a dangerous condition, “logic dictates the term proximate cause as used in section 835 denotes actual causation rather than the final proximate cause determination establishing a defendant's liability.”   We disagree.Granted, the concepts of “proximate cause” and “foreseeability” have long been a source of confusion in actions predicated on common law negligence.   However, this source of confusion does not promote a construction of section 835 which would render the term proximate causation to mean actual causation or “cause in fact.”   Rather, within the context of “proximate” cause (“legal cause” in Rest.2d Torts), cause in fact is but a necessary condition precedent to the determination of whether the negligent act or omission constituted the proximate cause of the plaintiff's injury.  (See 4 Witkin, Summary of California Law (8th Ed. 1974) Torts, section 620, et seq., pp. 2901–2905;  Prosser & Keeton on Torts (5th Ed.1984), §§ 41–42, pp. 263–280.)   In other words, cause in fact is not necessarily the sine qua non of proximate cause, for the former reflects the necessity of a sufficient factual nexus between the negligent conduct and the injury while the latter represents the legal determination encompassing all of the ill-defined considerations of policy which go to limit liability once cause in fact has been established.   Accordingly, we doubt the drafters of the Tort Claims Act intended to use the term “proximately caused” in section 835 to mean anything but that which it has in common law.

10.   However, there is no unforeseeable negligent conduct by a third (or even second) party on the facts of this case.   Even accepting the most liberal view of the record, there can be only slightly excessive speed of the car and no negligence on the part of the victim which can be relevant to this issue from walking on or alongside the right shoulder of the road.   In fact, neither defendant made any statement in final argument regarding any theory upon which the jury could possibly find the way the accident occurred was not foreseeable.

11.   Although there is no reference in Akins to section 835, the cause of action sounding in negligence arose from a dangerous condition on property of a public entity which can only be pursued under section 835 of the Tort Claims Act.

12.   In comparison, the dissent's interpretation requiring that in each case the plaintiff must establish both the kind of injury and the specific manner in which it happened are reasonably foreseeable is inconsistent with the holding in Akins.

13.   Further, our construction comports with the use of similar language in the Restatement Second of Torts regarding legal cause.   Section 442 lists those considerations important to determining whether an intervening force is a superseding cause of harm and includes whether “the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence.”   (Rest.2nd Torts, § 442(a).)   Their comment to this clause refers to section 451 of the Restatement Second of Torts, where comment a explains that the harm brought about by the intervening cause must be of a completely different sort from that which the actor's negligent conduct threatened and which would not have resulted had the operation of the intervening cause not been extraordinary.   So, within the context of an extraordinary force of nature intervening to bring about a harm different from that threatened by the actor's negligence, the comment to section 451 of the Restatement Second of Torts explains:“Thus, in a jurisdiction in which the erection of spite walls is an actionable tort, if A builds a spite wall of sufficient strength to withstand any expectable winds, the damage done to the building or chattels of his neighbor, B, by the blowing down of the spite wall by an extraordinary cyclone is not the legal consequence of the erection of the spite wall.   So too, a negligent delay in transportation which normally threatens only to deprive the consignee of the speedy possession of his goods is not the legal cause of their destruction by an extraordinary and unexpectable flood or hurricane to the effect of which the delay has subjected them.”Our interpretation is further supported by Restatement Second of Torts, section 442B, which declares:“Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by actor's conduct.”The cited rule is essentially a specific application of the rule set forth within section 435(1) that where the actor's conduct is a substantial factor in bringing about harm to another, the fact he neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.  (Rest.2d Torts, § 442B, com. a.)   Within comment b to section 442B, the American Law Institute explained:“If the actor's conduct has created or increased the risk that a particular harm to the plaintiff will occur, and has been a substantial factor in causing that harm, it is immaterial to the actor's liability that the harm is brought about in a manner which no one in his position could possibly have been expected to foresee or anticipate.   This is true not only where the result is produced by the direct operation of the actor's conduct upon conditions or circumstances existing at the time, but also where it is brought about through the intervention of other forces which the actor could not have expected, whether they be forces of nature, or the actions of animals, or those of third persons which are not intentionally tortious or criminal.   This is to say that any harm which is in itself foreseeable, as to which the actor has created or increased their recognizable risk, is always ‘proximate,’ no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and is not within the scope of the risk created by the original negligent conduct.”

1.   All statutory references are to the Government Code unless otherwise specified.

2.   The Law Revision Commission Comments were incorporated almost verbatim into the Legislative Committee Comment of the Senate as reprinted in the codes (4 Cal.Law Revision Com.Rep., supra, at pp. 854–855.)   The commission's comments are particularly indicative of the legislative intent when they are succinct and the statute is passed exactly as proposed by the commission.  (Keeler v. Superior Court, supra, 2 Cal.3d 619 at p. 630, 87 Cal.Rptr. 481, 470 P.2d 617;  Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249–250, 66 Cal.Rptr. 20, 437 P.2d 508.)   Here, only one small sentence of the proposed statute was eliminated as was the commission comment on that phrase.   The Legislative Committee added the phrase “injuries proximately caused” in the first paragraph.   These were the only changes.

3.   See ante, at typed pages 608–609 of this dissent.

WORK, Associate Justice.

STANIFORTH, Acting P.J., concurs.