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Court of Appeal, Fourth District, Division 2, California.

Mark W. ZAMARRIPA, Plaintiff and Respondent, v. CITY OF COACHELLA, Defendant and Appellant.

Civ. 25769.

Decided: July 25, 1983

Roberts, Morgan & Dougherty, Riverside, Horvitz & Greines, Ellis J. Horvitz and Kent L. Richland, Encino, for defendant and appellant. Thomas T. Anderson, Indio, Al Schallau and Jean Corey, Los Angeles, for plaintiff and respondent.


The City of Coachella appeals a jury verdict against it for maintaining a dangerous condition of property which proximately caused plaintiff's injury.   We affirm the judgment.


A. The intersection

The present controversy centers around the intersection of Highway 86 and Avenue 50 in Coachella, California, as it existed in October 1974.   On the date of the accident in question, the intersection had the following characteristics:  Highway 86 ran north and south and was 72 feet wide.   Avenue 50 ran east and west and was 48 feet wide on the western side of the intersection and 36 feet wide on the eastern side.   On the southwest corner of the intersection, Union Oil Company owned a bulk processing plant.   The bulk processing plant was protected by a wall which ran along the southern edge of Avenue 50 and the western edge of Highway 86.   The wall was approximately five feet tall.   It was situated about eight feet from the curb along Avenue 50 and 4.4 feet from the curb along Highway 86.   There was a stop sign and a limit line directed at traffic traveling east on Avenue 50 toward the intersection.   The stop sign was located six feet west of the curb line of Highway 86.   The western edge of the limit line was lined up with the wall, about two and one-half feet east of the stop sign.   The speed limit on Highway 86 was 45 miles per hour.

The intersection assumed the above configuration between 1970 and 1971 when the State of California widened Highway 86 and brought the highway approximately 20 feet closer to the wall.   In 1971, the City of Coachella received five to ten complaints from eastbound drivers on Avenue 50 concerning impairment of visibility at the intersection.   During 1971, Mr. Johnson, Coachella's traffic engineer, decided to investigate the complaints and found that when he was in the eastbound lane on Avenue 50, at the intersection's limit line, the wall obstructed his view southward down Highway 86 so that he was only able to see 200 to 300 feet.   In order to achieve a totally unobstructed view it was necessary for him to pull forward so that, from his position as driver of the car, he was situated at the limit line and his car protruded into the number two southbound lane of the intersection.   The city continued to receive complaints about the intersection through the time of the accident.

Shortly after investigating the intersection, Mr. Johnson recommended widening Avenue 50, installing a traffic signal and relocating the wall.   In November 1973, almost a year before the accident, the city procured an easement from Union Oil to widen Avenue 50.   Sometime after the accident in the instant case, Avenue 50 was widened and the wall was relocated.   The city also pursued the prospect of installing a traffic signal at the intersection.   However, since all traffic control devices on streets entering onto a state highway are installed and maintained by the State, the city needed the State's authorization to put a signal at the intersection.   The State refused to authorize the city's proposal.

B. The accident

On October 19, 1974, at about 11:30 a.m., John Windstone was driving his white 1969 Ford van east on Avenue 50.   When he reached the intersection of Avenue 50 and Highway 86, he stopped the van behind the intersection stop sign, looked in both directions and saw no oncoming traffic.   He then crept forward and again looked in both directions.   Windstone testified that he had an unobstructed view of the highway.   The height of his van enabled him to see over the wall.   Windstone estimated that he could see approximately a quarter of a mile south down the highway.   He saw no vehicles of any kind on Highway 86.   Windstone then proceeded to accelerate through the intersection until he felt a “bump”—as though he had “run over a log, or something”—at the edge of the intersection.   He pulled over to the side of the road and, for the first time, saw two people and a motorcycle lying in the intersection.

These two people were Jose Delgado and plaintiff.   Delgado had been driving the motorcycle and plaintiff was his 11-year-old passenger.   The motorcycle had been “assembled piece by piece” by Delgado and a friend.    It was a “chopper type” motorcycle with extended “forks” or struts which led to the front wheels and with elevated handlebars.   These features precluded the installation of a disc brake and made the motorcycle difficult to maneuver.   Delgado had also installed a smaller than normal front wheel, which contributed to its diminished maneuverability.   On the morning in question, the motorcycle was traveling north on Highway 86 at approximately 40 to 45 miles per hour.   When Delgado first saw the van, it was beyond the corner and entering the intersection.

What happened next is not precisely clear.   At trial and at a deposition held three and one-half years before the trial, Delgado testified that he saw the van driver look at him as the van entered the intersection.   He further testified at the deposition that he formed the opinion “That [the van driver] would see, and come to a stop, and let [me] go,” and therefore he accelerated the motorcycle.   However, at trial, Delgado testified that he did not remember either thinking of accelerating or actually accelerating.   Rather, he testified that he saw the van driver look at him;  and that he stopped accelerating the moment he saw the van, moved to the center of the right hand lane, which took about a second, and a second or two later decided to apply his rear brake.   Delgado remembered his deposition testimony at trial, but did not remember accelerating.   There is no inconsistency as to what happened next.   Delgado told plaintiff to “hold on.”   Although the motorcycle was equipped with brakes on both the front and rear wheels, Delgado applied only the rear wheel brake.   The motorcycle collided with the van and both Delgado and plaintiff were thrown to the ground.   Plaintiff suffered injuries to his head and neck which caused severe brain damage.

C. The verdict

In a special verdict the jury found the conduct of both John Windstone and Joe Delgado to have been extraordinarily negligent.   With regard to defendant State of California, the jury found that its property was in a dangerous condition, but found that it neither had notice of nor created this condition.   The jury found the defendant Union Oil Company not negligent.   The jury then found that defendant City of Coachella had maintained a dangerous condition on its property, which condition was the legal and proximate cause of plaintiff's injury.   The jury found that the City of Coachella had 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 it and that the condition was caused by an employee of the city.

The jury found the total amount of damages suffered by plaintiff to be $1,000,000.   The jury found that plaintiff did not contribute to his own injuries.   Mr. Delgado, a cross-defendant in the instant action, was found 41 percent negligent.   Mr. Windstone settled the claim against him for $100,000.   Mr. Jack Flournoy, an initial defendant in this action, settled the claim against him for $10,000.   These sums were set off against the verdict of $1,000,000 and the City of Coachella was found liable in the amount of $890,000.

II. Discussion

The statute under which plaintiff established the city's liability is Government Code section 835.1

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.”

Defendant contends that the judgment must be reversed because:  (1) there was no evidence to support the jury's finding that the wall constituted a dangerous condition of public property as to northbound drivers, (2) there was no evidence to support the jury's verdict that the wall was a substantial factor in causing the accident, and (3) there was no evidence to support the jury's finding that the alleged dangerous condition was created by a negligent act or omission of an employee of the city or that the city had either actual or constructive notice of the condition.

A. Dangerous Condition

Section 830, subdivision (a) defines dangerous condition 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 the manner in which it is reasonably foreseeable that it will be used.”

 Whether a condition of property is a “dangerous condition” within the meaning of section 830(a) is a question of fact to be determined by the jury.  (Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221, 228, 123 Cal.Rptr. 338;  Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)   There was ample evidence at trial to support the jury's finding that the wall in question created a “dangerous condition” when the intersection was used with due care by eastbound drivers.   The city's traffic engineer, Mr. Johnson, testified that, when at the intersection of Highway 86 and Avenue 50, eastbound drivers exercising due care could not see more than 300 feet when looking southward due to the wall.   The city's expert witness, Mr. Krueper, testified that when a vehicle comes from behind a wall, observation of the vehicle takes longer in perception time.   Thus, the ability of northbound drivers to see eastbound vehicles was also impaired.   Moreover, from the time the wall was first built in 1971 until the time of the accident the city received numerous complaints from eastbound motorists regarding the dangerousness of the intersection.

Defendant relies on Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 190 Cal.Rptr. 694, to support its position that the intersection was not dangerous as a matter of law.   In Mittenhuber, plaintiff, a six-year-old boy, was riding his bicycle westbound down Vorhees Avenue, a steep hill which led into a busy intersection.   The intersection was controlled by a stop sign on Vorhees Avenue.   On the northeast corner of the intersection a wall had been constructed which impaired the visibility of traffic approaching the intersection.   Ramon Herrera was operating a Volkswagen southbound on Phelan toward the intersection.   Plaintiff apparently failed to stop at the stop sign and collided with Herrera.2  Plaintiff sued the City of Redondo Beach for maintaining a dangerous condition.   Defendant demurred to plaintiff's third amended complaint.   The demurrer was sustained at the trial level, and the Court of Appeal affirmed.

In response to plaintiff's argument that “persons driving motor vehicles southbound on Phelan approaching its intersection with Vorhees could not see children on bicycles approaching the intersection from the east on Vorhees Avenue,” the court noted that the Government Code does not impose an affirmative duty upon a city to erect stop signs at such an intersection.   (Id., at p. 6, 190 Cal.Rptr. 694.)   In response to plaintiff's further argument that bicyclists traveling westbound on Vorhees could not see motor vehicles approaching the intersection from the north, the court stated that “the inability of persons operating motor vehicles and bicycles to see each other while approaching the intersection, are not supportive of the conclusion that the intersection was in a dangerous condition․  [T]he dangerous nature of such an intersection may be obviated by the placement of a stop sign on one of the streets requiring travelers to stop and not enter the intersection until it is safe.”  (Id., at pp. 6–7, 190 Cal.Rptr. 694.)   The demurrer was sustained on the ground that the plaintiff had failed to specifically allege how or in what manner he was inadequately warned of a dangerous condition.

Mittenhuber is plainly distinguishable from the present case.   Section 830 provides that property will only be found to be in a dangerous condition if it creates a hazard when used with due care.   In Mittenhuber, plaintiff failed adequately to allege that the intersection was dangerous as to persons who exercised due care by stopping at the Vorhees stop sign.   In the present case, there was substantial evidence produced at trial to support a finding that eastbound drivers, stopped at the intersection of Avenue 50 and Highway 86 and exercising due care, were unable to see approaching northbound traffic, and that the northbound drivers on Highway 86 had their view of eastbound drivers partially obscured by the wall.

Defendant maintains that even were we to uphold the trial court's conclusion that the intersection was dangerous as to eastbound drivers, this finding is insufficient to support the finding of a dangerous condition.   Its argument, in substance, is as follows:  Because the eastbound van driver in this case could see above the wall and had an unobstructed view of the highway, the condition was not dangerous as to him, and because the city had never received complaints about the intersection from northbound drivers it was not dangerous as to them.   Defendant further argues that a northbound driver, exercising due care, would have seen the van behind the wall and would have had time to stop.   This obfuscatory line of reasoning ignores the reality that the condition is dangerous as to an eastbound driver because it creates a hazard involving an eastbound driver in relation to a northbound driver.   The dangerous condition creates a risk of injury because of the decreased visibility between drivers who may be approaching the intersection at the same time.   This argument also confuses the issues of “dangerous condition” and causation.   Defendant attempts to discredit the overwhelming evidence supporting the conclusion that the wall created a dangerous condition at the intersection by maintaining that, although it might have been a dangerous condition as to most eastbound drivers, it did not cause the accident in this case because this eastbound driver could see over the wall.

 Granted, the van driver in the present case testified that he could see above the wall and did have an unobstructed view of oncoming traffic.   However, it is well established that the fact finder must look to the public in general, as opposed to the instant party, when determining whether a condition is dangerous for purposes of the statute.  (Morris v. State of California (1979) 89 Cal.App.3d 962, 965–966, 153 Cal.Rptr. 117.)   The evidence clearly supported a finding that the intersection was dangerous due to the impairment of visibility as to most eastbound and northbound drivers.

B. Causation

 Defendant argues that, because the jury found both Windstone and Delgado to have acted with extraordinary negligence, the wall could not have been a “substantial factor” in the accident.   There is no merit to this contention.  “Under the Tort Liability Act it is not necessary for plaintiff to establish that the dangerous condition was the sole cause or exclusive cause of the accident.  [Citation.]  Negligence of a third person does not, as a matter of law, exonerate the public entity.  (Callahan v. City and County of San Francisco, 249 Cal.App.2d 696, 701 [57 Cal.Rptr. 639].)  The intervening or concurrent negligent act of a third person does not break the chain of causation provided the dangerous condition contributed in some way to the injury.  [Citations.]”  (Bakity v. County of Riverside, supra, 12 Cal.App.3d at p. 32, 90 Cal.Rptr. 541;  see also Erfurt v. State of California (1983) 141 Cal.App.3d 837, 843–844, 190 Cal.Rptr. 569.)

 In the present case, the evidence indicated that the wall created a “dangerous condition” at the intersection.   Whether the wall contributed to the injury was a question of fact for the jury.   Plaintiff offered evidence at trial which demonstrated the similarity in color between the wall and the van.   He also offered the testimony of two witnesses who had investigated the intersection and who had concluded that the wall obscured northbound drivers' view of eastbound drivers.   Thus, although the van protruded above the wall and might have been visible to an attentive northbound driver, it was reasonable for the jury to conclude that the wall sufficiently obstructed Delgado's view of the van so as to have been a “but for” cause of the accident.   The jury further concluded that the negligence of both Windstone and Delgado was reasonably foreseeable and did not operate to preclude defendant's liability.

 Once the jury found that the other parties' negligence was not a superseding cause of the accident the extent of their negligence served only to apportion liability between them and defendant.   The law of comparative negligence, and the policy considerations which gave rise to it, will not permit defendant to absolve itself on the ground that a third party was negligent as well.  (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.)

C. Notice

 Section 835.2, subdivision (a), provides “A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”   The evidence demonstrated that the city had notice of the dangerous condition due to numerous complaints and the investigative efforts of its traffic engineer.   The city had, further, adopted a resolution to signalize the intersection.   The resolution was never acted upon due to the non-cooperation of the State.   The city's traffic engineer had further suggested that the city widen Avenue 50 and relocate the wall and the city had actually acquired an easement for that purpose long before the accident.   These measures were finally taken after the accident took place.   This was sufficient evidence upon which the jury could find that the city had actual notice of the existence of the condition and knew of its dangerous character.

III. Conclusion

We conclude that there was substantial evidence to support the jury's finding that the defendant City of Coachella had maintained a dangerous condition, had notice of the dangerous character of this condition and that this condition was the actual and proximate cause of the injury in question.

The judgment is affirmed.


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

2.   The Mittenhuber court's discussion implies that plaintiff failed to stop, but does not actually state this.

MORRIS, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.

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