Guillermina RAMIREZ, Plaintiff and Respondent, v. CITY OF REDONDO BEACH, Defendant and Appellant.
Defendant City of Redondo Beach (City) appeals from a judgment in favor of plaintiff Guillermina Ramirez in an action for personal injuries and property damages. We reverse.
Sometime during the evening of June 4, 1976, plaintiff, her father, younger brother, and sister, proceeded from their home to a nearby shopping mall located in the City of Redondo Beach. Arriving at their destination, plaintiff, nearly sixteen years old, practiced driving in a virtually empty mall parking lot. After completing the session, the family stopped at a doughnut shop in the vicinity of the lot and made several purchases. Leaving the shop, plaintiff once again took control of the car, a 1962 Plymouth Valiant, with her father positioned in the right front seat and the remainder of the family in the rear passenger compartment.1
The doughnut shop itself was located on the north side of Manhattan Beach Boulevard and approximately 265 feet west of Inglewood Avenue. Immediately adjacent to the shop was a driveway that exited onto Manhattan. The eastbound and westbound lanes of that street were separated by a concrete divider or median. Relevant to our discussion here, the eastbound portion of Manhattan contains three eastbound through lanes in addition to left and right turn lanes.2 The left turn lane permitted eastbound traffic on Manhattan to turn north onto Inglewood Avenue.
The westerly end of the divider began at Inglewood Avenue and ran parallel to the parking lot area, ending in a semicircular median break which extended nine feet further west than did the corresponding portion of the driveway. This alignment allowed vehicles to turn left into and out of the shopping center. Following the break in the median, the divider continued in a westerly direction past the intersection of Manhattan and McBain Avenue. Approximately 240 feet west of the driveway nearest the doughnut shop, planter boxes containing various shrubs, ranging in height from 36 to 42 inches, had been placed on the median strip.
Exiting the mall parking lot via the driveway, plaintiff planned to turn east onto Manhattan and then enter the left turn lane so she could proceed north on Inglewood Avenue. As she approached the end of the driveway, plaintiff stopped her vehicle and, by looking to her left, then to her right, and finally back to her left, observed no cross-traffic. Traversing the westbound lanes of Manhattan, plaintiff passed through the break in the median without stopping or looking to the right for approaching vehicles. Apparently unaware that she had passed within 30 feet of an automobile proceeding east in the number one lane at approximately 20 to 25 miles per hour, plaintiff entered the number two lane and began maneuvering her vehicle into the number one lane. Having failed to notice where the other car, a late model Chevrolet Monte Carlo driven by one Richard Bernard, was positioned, she continued her turning movement. Within seconds the right front of Bernard's vehicle struck the left side of the Valiant near the rear wheel.
Immediately following the collision, both cars veered north, proceeding over the Manhattan median side by side. At some undetermined point, plaintiff attempted to apply her emergency brake, but her foot slipped and became lodged between the fire door and the brake. With her foot fractured, plaintiff began to lose control of the car. After crossing the divider, Bernard's vehicle came to an immediate halt, stopping in the westbound lanes. The Valiant, however, continued to move forward and plaintiff's father attempted to take control of the vehicle. The car apparently negotiated a right turn off the median into the westbound lanes of Manhattan and began to accelerate in an easterly direction towards the intersection of Inglewood Avenue. Police officers witnessing the event noticed that the left front wheel of the vehicle had been damaged, causing the car to tilt and wobble. Inside the Valiant, plaintiff's brother heard a “thumping” noise and believed that the steering mechanism had been damaged. Meanwhile, the car moved south, crossed back over the median, re-entered the eastbound lanes and continued to accelerate in an easterly direction, approaching a speed of 25 to 35 miles per hour. One of the officers observing the path of the automobile, yelled “Hit and Run” and proceeded to follow the car on foot.
Plaintiff's vehicle cam to an abrupt halt when it collided with a light standard at a Shell service station located on the southeast corner of Manhattan and Inglewood Avenue, more than 300 feet to the east of the car's first impact with Bernard's Monte Carlo. The collision with the light standard was, by most estimates, the most severe of the evening; plaintiff was traveling 25 to 35 miles per hour at the time of impact, compared to the 6 to 13 miles per hour she had been driving at the time of the Bernard collision. As the Valiant collided with the light standard, a portion of the vehicle rose approximately six feet into the air and immediately descended to the hard pavement below.
Although his daughter was in shock and approaching hysteria following the accident, plaintiff's father laid her body across the front seat and instructed her to tell the police and other officials that he had been driving the car.3 Somewhat afraid of her father and suffering excruciating pain from her numerous injuries, plaintiff acceded to the request. Later, while talking with police officers at the scene, it was determined that plaintiff's father, prior to the time of the accident, had consumed an unknown quantity of alcoholic beverages but was found not to be legally intoxicated.
At trial, Bernard testified that at all times his view of plaintiff's vehicle was unobstructed, and contrary to earlier reports he had given his insurance agent and other investigating officers, the Valiant never exited from the parking lot driveway on the north side of Manhattan but from an alley on the south side of the street, directly across from and parallel to the shopping mall. According to his version of events, plaintiff's vehicle did not traverse the break in the median or cross the number one eastbound lane. Instead, the Valiant proceeded from the alleyway across several eastbound lanes on Manhattan and then, upon attempting to enter the number one lane, collided with Bernard's Monte Carlo. One police officer who witnessed the event from a position adjacent to the doughnut shop, testified that although he did not see any vehicles .exit the parking lot, he did see lights in the alleyway sometime before the initial collision. Nevertheless, he could not identify the lights he observed as those emanating from plaintiff's automoble. All witnesses to the accident made it clear, however, that traffic in the eastbound and westbound lanes of Manhattan Boulevard was virtually nonexistent and that lighting conditions were good to excellent.
As a result of the collisions, plaintiff suffered, and continues to suffer, a panoply of problems and complications arising from C–6 quadriplegia, including no feeling below her chest, decreased respiratory function, and functional loss of upper limb mobility.
Based upon the foregoing facts, plaintiff commenced this action against the City, contending, in a myriad of allegations, that the accident was caused by a dangerous condition of a public roadway. After the trial court denied the municipality design immunity pursuant to the provisions of Government Code section 830.6, and ruled against it on several vital evidentiary issues, the jury returned a special verdict assessing plaintiff's damages at $4.5 million and apportioned 80% of the fault for the collision to the City. The trial court thereafter entered judgment in the sum of $3.6 million. Defendant's motions for judgment notwithstanding the verdict and new trial were denied, and this appeal follows.
Although the City seeks reversal on several grounds, the thrust of its appeal is that plaintiff's lawsuit is barred as a matter of law under California's Tort Claims Act. (Gov.Code, § 810, et seq.) Having thoroughly considered the arguments of both parties and given the record de novo review pursuant to Government Code sections 830.2 and 830.6, we can only conclude that defendant was entitled to statutory immunity for design of the median strip and that, in toto, there was no dangerous condition of public property which, when used with due care, created a substantial risk of injury to any member of the public.
Essentially, plaintiff's action against the City is grounded on section 835, subdivision (b), of the Government Code 4 which provides that a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.5
At this juncture, we think it is important to note that the purpose of the Tort Claims Act was to restore to public entities in California tort immunity after our Supreme Court in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465 abolished the doctrine. Immediately following the Court's decisions, the Law Revision Commission, working at the behest of the Legislature, spent nearly two years analyzing the problem, making recommendations and formulating a new statutory scheme. (4 Cal.Law Revision Com. Rep. (1963) 803, 804 and 807.) The commission recommended the Legislature adopt the concept that a public entity is immune except in stated circumstances (§ 815) other than the converse, i.e., a public entity is liable unless the statute sets forth an exception. Section 835 was adopted virtually verbatim by the Legislature in the form recommended by the commission.
As stated by the Supreme Court in Williams v. Horvath (1976) 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125, “[T]he 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.”
The dangerous condition asserted to exist in the instant case is two-fold. In essence plaintiff contends that the shrubbery, which grew on the median west of McBain Avenue, in combination with the positioning and shape of the divider, formed a “trap” of sorts for unwary drivers. Specifically, she argues that as she exited the driveway, the shrubs blocked her view of the approaching Monte Carlo, lulling her into a false sense of security, and that as she proceeded with the intent to enter into the left turn pocket, the placement and design of the divider caused her to over steer into the number two lane. Plaintiff therefore opines that with Bernard believing her automobile would remain in the middle lane, the trap had been set and the collision was a foregone conclusion.
Reviewing the record in the light most favorable to the prevailing party, as is the usual rule on appeal (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193; Metzger v. Barnes (1977) 74 Cal.App.3d 6, 9, 141 Cal.Rptr. 257), the following evidence was adduced at trial by plaintiff in her attempt to substantiate the claim that the City's design and maintenance of the roadway was the proximate cause of her injuries.
Testifying that the shape and placement of the median's semicircular nose constituted a patently hazardous condition, plaintiff's experts asserted that an automobile, positioned in the driveway south of Winchell's, could not negotiate a normal turn at normal speeds in order to proceed eastbound on Manhattan Beach Boulevard without encroaching into the number two lane. A driver proceeding left out of the driveway, and intending to make a second left turn on to Inglewood Avenue, purportedly faced various unforeseen problems. Instead of crossing three lanes, as would be expected if the median did not induce wide-turning maneuvers, the vehicle would pass five different lanes in a very short distance. According to the experts, each change of lanes represented a potential conflict point that would not be anticipated by the average driver. As for an automobile moving east on Manhattan and approaching the break in the divider, its driver allegedly would not anticipate that the turning vehicle, positioned in the number two eastbound lane, would continue in a semicircular course as it followed the contours of the median nose.
With specific reference to the placement of the hedges, plaintiff's expert witnesses further opined that a vehicle turning left out of a driveway onto a four-lane public street with a 35–mile-per-hour speed limit required a minimum of 250 feet of clear visibility to its right. Based upon their accident reconstruction studies, the witnesses concluded that the shrubs obscured 66 feet of the number one eastbound lane from the view of the occupants in plaintiff's automobile. Casting a shadow path which “hid” Bernard's headlights for approximately 1.6 seconds, the hedge supposedly made it impossible for plaintiff to observe the approaching car as she exited the mall parking lot. With ambient street lighting providing no clue as to the presence of the Monte Carlo, the experts believed that plaintiff had no reason to expect that another vehicle was proceeding eastbound and thus reasonably concentrated her attention on her predicted path of travel. Calculating the speed of both cars and the distance factors involved, the witnesses testified that the vehicles would arrive at the same place at the same time.
As for the creation of a “trap”, plaintiff's “human factors” expert observed in pertinent part: “If you start out with the shrubs, obviously, first [a driver makes] a judgment that there is no car coming. Then you proceed ahead and make a turn. And the configuration of the median would tend to make a driver wind up further to the south than she or he should. And that in combination with the vehicle that was undetected leads to problems․ [I]t was a combination of those two, either one of which—if either one of which had been missing we in all likelihood would not have had the problem that we did.” (Emphasis added.)
Regardless of the foregoing evidence, plaintiff may be denied recovery from defendant if it is established that the municipality is entitled to statutory immunity under section 830.6.
Design immunity is, of course, an affirmative defense to liability for the dangerous condition of public property and as such it must be pleaded and proved by the defendant public entity. (Cameron v. State of California (1972) 7 Cal.3d 318, 325, 102 Cal.Rptr. 305, 497 P.2d 777.) Three basic elements must be established in order to claim the defense: first, a causal relationship between the plan and the accident; second, discretionary approval of the plan prior to construction; third, substantial evidence supporting the reasonableness of the design. (Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 88–89, 135 Cal.Rptr. 127; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 748, 94 Cal.Rptr. 175.) 6 The public entity involved is entitled to design immunity if there is any substantial evidence on which the approval can be reasonably based, and it is error to submit a design defense to a jury. (Muffett v. Royster (1983) 147 Cal.App.3d 289, 306, 195 Cal.Rptr. 73; Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 136 Cal.Rptr. 751.)
Applying the foregoing principles to the case at bench, we must now examine the record to determine whether “there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” (§ 830.6.)
The City proffered evidence that sometime in the early 1960's Los Angeles County [county] was engaged by defendant to widen a portion of Manhattan Beach Boulevard from Inglewood Avenue to approximately 300 feet west of the intersection. Design plans were drafted and approved by an engineer for the county's highway division, a member of the county's road department's design section, and by the county's road commissioner. The plan was further approved by the city engineer for defendant, F.C. Nibe and by Nibe's supervisor, Robert L. Smith, director of public works for defendant. Smith testified that in his opinion the county had an excellent reputation for designing streets and that he had no reason to doubt Nibe's engineering competency. Smith also testified that he had personally designed highways in his career.
In rebuttal, plaintiff called as her expert witness Allen Weber, a traffic engineer with an extensive background in road design. He testified that in his opinion the median break represented a “hazardous” condition to a driver exiting by way of the center of the driveway. His opinion was based on the following facts: A car leaving from the center of the driveway would be required to travel between 50 to 55 feet to reach the eastbound lanes of Manhattan Beach Boulevard; that the driver would first travel through the two westbound lanes or “conflict points” before reaching the break; that because the break extended out nine feet within the path of the shopping center's driveway and because the nose of the break was shaped in a semicircle, a driver intending to make a left turn at the break would “spill over” into the number two lane; that a safer design would have been one called a parabolic flare which has a narrower, parallel shape; that when he worked in the Los Angeles County road department that agency in designing median breaks subscribed to standards set by the American Association of State Highway Transportation Officials (AASHTO); that under AASHTO the standard turning radius at a median break for a passenger vehicle was 40–feet and for trucks 50–feet; and that when the county designed a median break it was anticipated that trucks would utilize it.
Weber was also asked the following hypothetical question: “[K]eeping in mind your comment about the hazards created by the nose of the center divider from Inglewood Avenue ․ [and assuming that] a planter box was installed roughly 180 to 230 feet west of the driveway ․ and that certain plants were high enough and dense enough to block out and obliterate headlights of oncoming cars․ Do you have an opinion as to whether or not that change compounded the situation ․? Answer: “ ․ It would aggravate that situation [the compound turn] and make it more hazardous ․ [because] [t]he primary method for motorists to locate oncoming cars at night are their headlights. If you block those headlights, then, of course, you remove the greatest influence that the motorist has of observing oncoming traffic.”
Plaintiff also called Scott Garrabrant, a former employee of defendant who in 1976 was assigned to its parks and recreation department. Garrabrant testified that as a gardener he maintained the shrubbery on the median divider. He stated that the hedges in the area in question were dense and were allowed to grow “waist high,” or about forty-five inches tall.
Following extensive argument, the court ruled that defendant had failed to meet its burden to show that a reasonable public employee could have adopted the design. The court stated: “I think it is patent, based upon a normal turning radius and the configuration of the median relative to the [driveway] that under normal circumstances and at a reasonable rate of speed that an American car, a standard car, would not be able to negotiate a left-hand turn into the no. 1 lane. That it would be necessary to stray into the no. 2 lane․”
The court then addressed the City's contention that the turn through the median could be safely made if plaintiff had exited from the right-hand side of the two-lane driveway: “It's apparent that a designer cannot reasonably expect someone would take so extraordinary a measure to be so far over to the extreme right that they would apparently be jumping the curb on that side․ What we are talking about here is a reasonably expectable and normal exit by a driver. So, one, the physical evidence that is presented to me makes it apparent, and I think patent the turn could not be safely negotiated, could not be done without traversing into at least no. 2 lane.”
Lastly, the court stated: “[T]he substantial evidence presented here, essentially, is that this highway was—this part of it was designed by the County of Los Angeles for the city, that the city people had confidence in the county, and that in general the county is competent. And that's it. There is no evidence specifically of any independent exercise of judgment by Mr. Nibe. I would like to assume that Mr. Nibe reviewed this. And I think it's also safe to assume and a proper thing to assume that the city reposed its trust and confidence in Mr. Nibe in giving its discretion to exercise a considered judgment․ I don't believe it's a sufficient answer for the city to say that our city engineer, qualified and vested with discretionary authority, simply approved something that someone else did with respect to a defect of this kind. For that reason my conclusion is that 830.6 is not available to the city as a defense in this case.”
In examining the sufficiency of the City's proof as to the elements of prior approval and reasonableness of approval of the Manhattan Beach Boulevard plan, we must bear in mind the rationale underlying the theory of design immunity. “Basically, this defense is predicated upon the concept of separation of powers—that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of ‘impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.’ [Citations.] Additionally, judicial economy underlies design immunity—forbidding a jury from reweighing the same factors considered by the governmental entity which approved the design. [fn. omitted; citation.]” (Anderson v. City of Thousand Oaks, supra, 65 Cal.App.3d 82, 89, 135 Cal.Rptr. 127.)
In this context, we read section 830.6 to mean that as long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances. By deciding on a “reasonableness” standard, the Legislature intended that government officials be given extensive leeway in their decisions concerning public property.
After having given the whole record de novo review, which includes consideration of testimony given by one of the City's experts who was not heard at the design immunity phase of the proceedings, but who did testify at trial that not only was the median break safe but promoted safety,7 we hold that the City is entitled to the statutory protection afforded by the Government Code.
Plaintiff argues, however, that defendant did not produce any direct evidence that a reasonable public employee or legislative body could have adopted the design in question. We disagree. To establish design immunity the statute only requires that we find “any substantial evidence” which supports the conclusion that a reasonable public employee or legislative body “could have adopted the plan or design.” (§ 830.6.)
In determining whether the evidence before the trial court is substantial, the question is whether the facts adduced “reasonably [inspire] confidence” and are of “solid value.” (Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 798, 101 Cal.Rptr. 358.) Although the evidence presented to the court was conflicting, there was substantial evidence supporting the view that the design of the street was reasonable. As previously noted, during its defense the City's expert witnesses did find that the plan for the median strip was not dangerous. Moreover, defendant adduced evidence that its city engineer, along with the engineers and other officials of the county, who were recognized as being competent in the design of highways, also approved the plans. In calculating reasonableness, weight must be given to the fact that qualified persons and agencies gave the design their discretionary approval.
That a paid expert witness, in hindsight, finds that a design was unreasonably approved, does not mean, ipso facto, that the design is dangerous. As demonstrated in the instant case, competent experts disagreed among themselves. Although plaintiff produced two experts who testified that the condition of the property created a hazardous condition, it should not be concluded that her evidence is more sufficient than that produced by defendant. A mere conflict in the testimony of expert witnesses provides no justification for the matter to go to a lay jury who will then second-guess the judgment of skilled public officials. (Cf. Muffett v. Royster, supra, 147 Cal.App.3d 289, 306–307, 195 Cal.Rptr. 73.)
Plaintiff, nonetheless, contends that the design immunity defense was abrogated because (1) the accident was not design related since the foliage was never part of the original plans for the median 8 and (2) because the shrubbery and divider break combined to create a trap which required defendant to post a warning sign to alert drivers of a dangerous condition pursuant to section 830.8.9 Plaintiff's arguments, however, are valid only if we find as a matter of law that the layout of defendant's property constituted a substantially dangerous condition.
A “dangerous condition” is defined by statute 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.” (Gov.Code, § 830 subd. (a); emphasis added.) 10 The Tort Claims Act further empowers an appellate court to determine on its own whether or not the property is substantially dangerous. In this regard, section 830.2 provides: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created 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 it would be used.” (Emphasis added.)
Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)
We cannot conclude that the configuration of the street amounted to a trap. Inherent in the concept of a trap is a hidden danger. In the instant case the danger, if present at all, had to be obvious to any driver exercising due care. Plaintiff was familiar with the area and even admitted during trial that before she proceeded out from the driveway that the hedges blocked her view. We think it clear that a motorist is not entitled to ignore the notice which the condition itself gives. This is not a case “[w]here it is reasonably foreseeable that persons to whom a lower standard of care is applicable—such as children—may be exposed to a substantial risk of injury from the property” and, therefore, “the public entity is required to take reasonable precautions to protect such persons from that risk.” (See Cal. Law Revision Com. com., Deering's Ann. Code Gov. Code, § 830.) The law required plaintiff, although not experienced in the use of an automobile nor sanctioned by the state to operate it on a public street, to still exercise the same amount of due care as a licensed motorist. No reasonable person can argue that a driver using due care and confronted with the same circumstances, a driver who was not pressured into rushing through the turn by oncoming traffic from the west, would have blindly exited the median break without first proceeding to search for cross-traffic.
It is well established that “[a] history of similar accidents during the course of normal use of a property supports an inference that its condition is dangerous.” (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980), p. 192, and cases cited therein.) Obviously, then the converse of the rule is relevant to show that a condition is not dangerous. (See Callahan v. City and County of San Franciso (1971) 15 Cal.App.3d 374, 379, 93 Cal.Rptr. 122.) Although local residents testified that when they proceeded through the median break they found themselves turning wide, plaintiff did not introduce any evidence that accidents similar to hers had occurred at the location. On the other hand, defendant proffered evidence from its “comprehensive accident reporting system” 11 that during four and one-half years prior to plaintiff's crash no similar type of collision had been recorded which would indicate the area in question was a dangerous condition.
Plaintiff's contention that changed conditions deprived the City of design immunity completely ignores the long settled principle that the “changed conditions” exception is applicable only when “experience has revealed the dangerous nature of the public improvement under changed physical conditions” and that “in its actual operation under changed physical conditions [the design produced] a dangerous condition of public property and [caused] injury․” (Baldwin v. State of California, supra, 6 Cal.3d 424, 435, 438, 99 Cal.Rptr. 145, 491 P.2d 1121.) As discussed above, the record is totally devoid of any evidence tending to establish that experience provided defendant with any indication that the roadway had become dangerous because of the planted shrubbery.
Even were we to assume that the ordinary motorist exercising due care would have been lulled into a false sense of security, we still conclude, viewing the evidence in the light most favorable to plaintiff, that the condition of the City's property presented to her only an insignificant risk of injury. Said another way, the probability that a driver, stationed at the Winchell's driveway would momentarily look for eastbound traffic at the exact instance the headlights of the only car traveling on the highway were eclipsed by the foliage, then make her turn through the median break without checking for cross-traffic, and, from a position of safety in the number two lane, turn without looking for approaching traffic to her left, is so remote that for policy considerations the law will not hold the City liable.
Plaintiff's experts candidly conceded that neither the growing shrubbery nor the design of the median, when considered separate and apart, could have been the proximate cause of the initial collision with Bernard's vehicle and the strangely tragic series of events which followed. Instead, plaintiff argued at trial, as she does on this appeal, that the various physical factors combined to create the dangerous condition alleged to exist at the time of the accident. However, as emphasized by the court in the recent case of Antenor, if each of the purported defects “has a zero danger factor, it cannot be said that any alchemist's process will create one for the whole.” (Antenor v. City of Los Angeles, supra, 174 Cal.App.3d 477, 484, 220 Cal.Rptr. 181.)
Based upon our review of the record in its entirety, we are of the opinion that as a matter of law the defects, if any truly existed, were of such a minor, trivial, or insignificant nature that no reasonable person could conclude that there existed a substantial risk of injury. This is not a case of negligence on the part of defendant which allowed a dangerous condition of property to exist. Nor is it a case of a foreseeably-negligent user being led into a trap, for no trap existed. The cause of this tragic occurrence must be laid solely upon an inattentive and inexperienced plaintiff and a series of events, involving the actions or inactions of Bernard and plaintiff's father, which defy logical explanation.12 Permitting this judgment to stand would be tantamount to imposing strict liability on defendant as an insurer of the safety of its streets and allowing a lay jury to second-guess the exclusive statutory legislative authority of the City regarding the design of the roadway in question. This we refuse to do.
The judgment is reversed with directions for the trial court to enter a new and different judgment in favor of defendant. Each party to bear their own costs on appeal.
1. Although plaintiff, having lived in the vicinity of the shopping mall for several years, was familiar with the general configuration of the streets in the area, her driving experience was extremely limited. Prior to the accident giving rise to the instant litigation, she had practiced driving on nine separate occasions. Plaintiff, however, had driven only once before on a public street. Although not admitted into evidence at trial, plaintiff possessed neither a learner's permit nor a driver's license.
2. At trial the eastbound lane nearest the center divider was referred to as the “number one” lane and the eastbound middle lane was designated as the “number two” lane.
3. Subsequently, plaintiff filed a complaint against her father alleging that he was the driver of the Valiant. From the record it appears that her father's insurance company settled with her out of court. Plaintiff's initial complaint against the City also averred that she was a passenger in the automobile. That complaint was later amended to allege that she was an “occupant.” Additionally, plaintiff sometime after the accident signed a document under penalty of perjury declaring she was a passenger in the car on the night of the accident. At trial, of course, plaintiff testified that she was the driver of the Valiant, not her father.
4. Hereinafter, unless otherwise indicated, all section references are to the Government Code.
5. 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 ․ [¶] (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.”
6. Section 830.6 provides in relevant part: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor․” (Emphasis added.)
7. The City's expert witness, Derwyn Severy, testified that in his opinion the design of the median break was not dangerous, but in fact fostered safety by encouraging vehicles to exit the driveway at reasonable speeds and discouraging them from “rushing out” into busy traffic.
8. “[W]here a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.” (Baldwin v. State of California (1972) 6 Cal.3d 424, 438, 99 Cal.Rptr. 145, 491 P.2d 1121.) The approved design plans did not include for the placement of foliage on the median.Plaintiff also cites an increase in traffic on Manhattan Beach Boulevard as another changed condition. The argument is meritless in view of the fact that Bernard's vehicle was the only other automobile on the highway at the time of the accident. (See Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 220 Cal.Rptr. 181.)
9. Section 830.8 provides: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”“The ‘trap exception’ of [section 830.8] ․ has been held to preclude application of the ‘design immunity’ provided by [section 830.6] even though the latter immunity, in terms, is declared to override any liability ‘under this chapter’, i.e., chapter 2, which provides generally for dangerous condition liability and includes [section 830.8]. Thus, even if the source of the danger is inherent in the approved plan or design of the improvement, and therefore appears to be nonactionable under the ‘design immunity’, the entity's failure to post adequate warning signs may result in liability under [section 830.8].” (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980), p. 253.)
10. “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsbile for the repair of all conditions creating any possibility of injury however remote that possibility might be.” (Recommendation Relating to Sovereign Immunity, 4 Cal. Law Revision Com. Rep. (1963) 801–822.) Citing the above passage, Professor Van Alstyne comments: “The Legislature was apparently concerned not with the extent of injury, but with the probability that an injury would occur.” (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) p. 191; emphasis added.)
11. Defendant offered the following foundational facts concerning its reporting system: It was in operation four and one-half years prior to plaintiff's accident, reported accidents were tabulated and entered into a computer operated by the City's traffic bureau; if there was personal injury or $200 worth of property damage, the accident scene was documented by measurements taken from the nearest intersection and recorded in the computer; if there was only $200 worth of property damage or the drivers left before the police arrived, a “fender bender” was recorded at the nearest intersection to the accident. As a result of plainitff's objection, and the trial court's subsequent ruling on the issue, this evidence was never heard by the jury. We agree with defendant that by depriving the trier of fact of the opportunity to weigh the adequacy and results of the City's comprehensive accident tabulation system, the court countered clear legislative mandate and deprived the municipality of a fair trial on the vital issue of constructive notice. (See § 835.2 and the legislative committee's comment related thereto.)
12. Even after our careful study of the record we are at a loss to explain how the jury could conclude that neither Bernard nor plaintiff's father contributed in any way whatsoever to the accident.
COMPTON, Associate Justice.
ROTH, P.J., and GATES, J., concur.