JULIE SOSKY v. DOWNEY UNIFIED SCHOOL DISTRICT (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff Julie Sosky tripped and fell over a parking stop in a school parking lot.   Alleging that her accident resulted from a dangerous condition of public property, she sued Downey Unified School District (“Downey”).   Plaintiff appeals from the trial court's grant of Downey's motion for summary judgment.   Because we conclude that the trial court erred in determining as a matter of law that the condition presented by the parking stop did not present a dangerous condition, and that the condition was open and obvious, we reverse.

Facts

Plaintiff's First Amended Complaint alleged that, after getting out of her car in a school parking lot where she was picking up her niece, plaintiff tripped and fell over “a dangerously and deceptively placed parking stone.”   It alleged that the parking stop was a dangerous condition because “[t]he location and placement of the parking stone in the middle of the parking lot, ․ was such that persons using the parking lot with reasonable care foreseeably would be caused to trip and fall by the unexpected and unanticipated presence of the parking stone at a location where it should not have been, and where a person exercising reasonable care would not anticipate the presence of a parking stone․”

After filing its answer Downey moved for summary judgment, contending that undisputed facts establish that the parking stop was not a dangerous condition, and was no more than a minor, trivial, or insignificant defect in the property;  that it was not defectively designed or maintained;  and that it was open and obvious, negating any duty to warn plaintiff of its existence in that location.   Downey supported its motion with excerpts from plaintiff's deposition testimony, photographs of the area around the parking stop, and expert declarations.

Downey's evidence showed that the incident occurred in the parking lot of Imperial Elementary school at about 2:30 p.m. on March 4, 2008, a clear and sunny day.   After parking in a designated parking space, plaintiff stepped out of the driver's side door of her car, took about four steps, and tripped over a parking stop.   Plaintiff was not carrying anything, except perhaps her car keys.   Nothing obstructed her view of the parking stop, but she did not look down and did not see it before tripping on it.   The parking stop was placed in an endcap at the end of a row of parking spaces to protect a sign in front of it and cars parked in the opposite row.

Plaintiff's opposition disputed Downey's contentions that her view of the parking stop had been unobstructed, and that the parking stop was placed in an endcap to protect a sign in front of it and cars parked in the opposing row.   Her evidence was that the parking stop presented “an abrupt height differential of 2 inches and an overall height differential of 41/212 [inches]” and that the parking stop was difficult to see because it was not painted a bright or distinctive color, because the endcap's painted hash marks were similar to those commonly used in pedestrian walkways and were the same color as the white parking stop, because the parking stop would have been partially obscured by shadows at the time of her fall, and because the attention of pedestrians would be directed toward the metal sign pole and the school's entrance, not the ground.

According to plaintiff, after stepping out of her car she was looking toward the school for her niece, and she walked where she did-tripping on the parking stop-in order to avoid the metal signpost.   In light of these facts, she contended, the parking stop's location and the area's painted stripes made it a “significant trip hazard” for pedestrians, which served no useful purpose and could have been eliminated at almost no cost.

Downey's reply countered that the photographs established that as a matter of law the condition was not dangerous, that parking stops are common and useful, and that the condition was open and obvious.   Downey interposed objections to the admissibility of portions of plaintiff's evidence, most notably her expert's opinion evidence.¹

The trial court granted Downey's motion for summary judgment, holding that as a matter of law the parking stop did not present a dangerous condition, that there was no evidence it was defectively designed or maintained, and that the condition was open and obvious, negating any duty on Downey's part to warn of its presence.   It signed and filed the Order Granting Summary Judgment on December 18, 2009, and Downey gave Notice of Entry of Judgment on December 23, 2009.   Plaintiff filed a timely appeal on February 16, 2010.

Discussion

The order granting summary judgment is appealable.  (Code Civ. Proc., § 437c, subd. (m)(1) [“A summary judgment entered under this section is an appealable judgment as in other cases.”].)

The question facing the trial court in ruling on a summary judgment motion is whether “all the papers submitted show that there is no triable issue as to any material fact․”  If the moving party's papers make that showing, and it is not negated by the evidence presented in response, summary judgment must be granted;  if the moving party's papers fail to make that showing, or if it is negated by the response, the summary judgment must be denied.  (Code Civ. Proc., § 437c, subd. (c).)  In other words, if there is any evidence that must be weighed by a trier-of-fact in order to determine who should prevail, summary judgment must be denied.  (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878-880.)  “The aim of the procedure is to discover ․ whether the parties possess evidence requiring the weighing procedures of a trial.”   (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851.)

This court's task is the same.   In reviewing a grant of summary judgment, the appellate court makes an independent examination of the evidence presented for and against the motion, in order to determine whether there is any issue of disputed material fact requiring a trial.  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)   We will affirm a summary judgment in favor of the defendant when the evidence conclusively shows that under no hypothesis is there any disputed issue of material fact requiring a trial.  (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1360-1361.)

1. The law with respect to governmental immunity.

Under the general rule of sovereign immunity, a public entity is liable for an injury on its property only when that liability has been assumed by statute.   (Gov.Code, § 815;  Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 703-704;  Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.)   Liability for injuries is assumed by Government Code section 835 (with exceptions not relevant here), “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 the dangerous condition was created by the negligence or wrongful act or omission of the public entity's employee, or the public entity had notice of the dangerous condition in time to correct it before the injury.  (Gov.Code, § 835.)

A “dangerous condition” of public property is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) 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.”  (Gov.Code, § 830, subd. (a).)  However, a condition is not a dangerous condition “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.”  (Gov.Code, § 830.2.) The purpose of these statutes is to impose liability on a public entity only when there is a substantial danger that is not apparent to those using the property with due care in a reasonably foreseeable manner.  (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 558.)

Under these provisions, whether particular facts amount to a dangerous condition ordinarily is a question of fact.   But it becomes a question of law, which can be determined by the trial court on summary judgment or by the appellate court on review, if no reasonable person could conclude that the circumstances present a dangerous condition within the statutory definitions.   (Davis v. City of Pasadena, supra, 42 Cal.App.4th at p. 704.)  “[I]t is for the court to determine whether, as a matter of law, a given defect is not dangerous.   This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.”  (Ibid.)

2. The trial court erred in holding that the evidence negated all disputed issues of material fact.

Granting summary judgment in this case, the trial court found that “even viewed in the light most favorable to plaintiff,” the parking stop's presence in that location did not constitute a dangerous condition as defined by the Government Code;  that there is no evidence it was defectively designed or maintained;  and that because the parking stop was open and obvious, Downey had no duty to warn plaintiff of its existence or location.   Because the evidence presented for and against summary judgment reveals the existence of disputed issues of material fact, we conclude that summary judgment was improperly granted.

The trial court based its grant of summary judgment on the photographs of the site presented by plaintiff, on the declaration of Downey's expert witness, and on its rejection of the

The trial court correctly noted that it could not be bound by the opinions of plaintiff's expert-that the parking stop was within a reasonably foreseeable pedestrian path, and that it would have been difficult to see under the circumstances at the time of the incident-if those opinions are contradicted by the photographic evidence.  (Davis v. City of Pasadena, supra, 42 Cal.App.4th at p. 705.)   But on the record in this case neither the photographs nor any other evidence justifies the trial court's determination that the expert's conclusions are wrong as a matter of law.

The photographic evidence shows that the parking stop over which plaintiff tripped was in a triangular area next to the parking space in which plaintiff had parked, at the end of a row of parking spaces;  that the triangular area had diagonal white painted hash marks;  that the parking stop, also white, was at the end of the triangular area (where parking stop would stop a car's wheel if the space was a parking space rather than a triangular endcap);  that behind the parking stop, at the end of the triangular area, was a metal signpost;  and that shadows could affect the parking stop's visibility.   The photographic evidence does not negate the possibility that a pedestrian might justifiably walk in that area, and might reasonably be drawn to look toward the signpost or the school door, rather than for a parking stop at ground level.  (Downey's expert opined that the parking stop was placed in the endcap to protect the signpost and cars in the opposite parking space;  but Downey offered no evidence why a parking wheelstop is reasonable, necessary, or predictable to pedestrians, when it is located in an endcap space where cars do not park.)

We do not hold that there was anything improper or unduly dangerous about the parking stop's placement in this case, or that its placement should lead to liability on Downey's part;  we hold only that the trial court was not justified in finding that the evidence supports only the opposite conclusion.   It is quite possible that a trier-of-fact could conclude that the endcap could not reasonably be mistaken for a pedestrian walkway, that its placement at the end of the endcap was reasonable and served a useful purpose, and that it was easy to see and plaintiff acted without due care in failing to walk around it or to step over it.   But on this record, a trier-of-fact might also reach the opposite conclusions.   These questions-whether the placement of the parking stop presented a dangerous condition, whether it was defectively designed and maintained, and whether it was open and obvious-require factual determinations that cannot properly be made on summary judgment.

Disposition

The judgment is reversed.   The trial court is directed to enter an order denying the motion of Downey Unified School District for summary judgment.   Plaintiff Julie Sosky is awarded her costs on appeal.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. The record contains no indication that the trial court ruled on Downey's objections.   We need not consider whether Downey could have argued in support of the summary judgment that despite the absence of trial court rulings its objections were well taken (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), because Downey has made no such suggestion.  (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [issue not discussed in appellate briefs is waived].).  FN1. The record contains no indication that the trial court ruled on Downey's objections.   We need not consider whether Downey could have argued in support of the summary judgment that despite the absence of trial court rulings its objections were well taken (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535), because Downey has made no such suggestion.  (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [issue not discussed in appellate briefs is waived].)

MALLANO, P. J. JOHNSON, J.