Weekly Law Resume - January 10, 2013: Dangerous Conditions of Public Property and Third-Party Conduct: The Alleged Condition Must Cause the Conduct, Not Just the Injury

by Low, Ball & Lynch
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Cordova v. City of Los Angeles
California Court of Appeal, Second Appellate District (December 20, 2012)

Plaintiffs injured by the negligent or criminal acts of others often allege that a dangerous condition of public property contributed to their injuries. In this case, the Court of Appeal addressed the whether a public entity’s liability requires that the condition of its property contribute to the existence or extent of the injuries in any manner, or whether that condition must specifically contribute to the third-party’s negligent or criminal conduct.

On August 27, 2008, at approximately 10:30 p.m., Cristyn Cordova was driving westbound with four passengers on the inside lane of Colorado Boulevard in Los Angeles. To the left of Cordova’s vehicle was a grassy median divider with semi-regularly placed magnolia trees. To its right was a vehicle driven by Rostislav Shnayder. Both Cordova and Shnayder were likely traveling above 65 mph in this 35 mph zone. As Cordova approached Hermosa Avenue, Shnayder’s car veered into hers, pushing it into the grassy median, where it struck a magnolia tree and crumpled. Cordova, her unborn baby, and three passengers were killed in the impact; one was seriously injured. Shnayder was arrested at the scene and later convicted of vehicular manslaughter.

Cordova’s parents sued the City of Los Angeles for wrongful death based on an alleged dangerous condition of public property (Government Code § 835). They alleged that Colorado Boulevard was in a dangerous condition due to the lack of “clear zones” – i.e., areas of roadway left unobstructed – as well as due to the presence of the magnolia tree and other features.

The City filed a motion for summary judgment, asserting that the center median of Colorado Boulevard was safe when used in a reasonably foreseeable manner; the median was not damaged, deteriorated, defective or latently hazardous; and the accident that resulting in the deaths and injury was the result of third-party criminal conduct. The City submitted evidence showing that the 85th percentile speed on that portion of Colorado Boulevard was between 35 and 40 mph. It also submitted evidence showing that the width of the median and the location of the tree on it complied with both its own Bureau of Engineering Street Design Manual as well as American Association of State Highway and Transportation Officials (AASHTO) guidelines. Specifically, there was seven feet of clearance from the magnolia tree to the inner edge of the painted traffic lane in which Cordova was driving, and the median had a standard, six inch curb face. In addition, the City showed that, of the prior collisions arising from the 32,500 daily vehicle crossings, none involved the median trees or fatalities.

In their opposition to summary judgment, the Cordovas submitted evidence of eight “scars” on magnolia trees, possibly indicating prior collisions, as well a 1979 U.S. Department of Transportation study indicating that trees are the second most commonly struck fixed objects on roadways. In addition, they presented evidence of numerous sideswipe collisions on that stretch of Colorado Boulevard. Accordingly, the Cordovas argued, it was foreseeable that a catastrophic collision would occur if appropriate safety measures were not taken.

The trial court granted the City’s motion for summary judgment, noting that, if the Cordovas’ theory were accepted, boulders, mailboxes and all other items by the side of a road would have to be removed. It also did not find any causal connection between the tree and the accident; instead, only Shnayder’s conduct caused the collision.

The Court of Appeal affirmed. It reviewed a number of prior decisions involving allegations of a dangerous condition of public property in conjunction with wrongful third-party conduct. Under those decisions, a public entity may be liable even where the immediate cause of injury is a third party’s negligent or criminal act, “if some physical characteristic of the property exposes its users to increased danger” from the third-party conduct. Public-entity liability may lie where a feature of the property increases or intensifies the risk to users from third-party conduct. However, the third-party conduct alone does not constitute a “dangerous condition” under § 835; instead, the defect in the property must have some causal relationship to the conduct that injures the plaintiff. Property is not “dangerous” under that statute if it is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.

Applying these principles, the Cordova court held that the plaintiffs could not show that the magnolia tree contributed to Shnayder’s criminally negligent driving. It stated that “[t]here is nothing about Colorado Boulevard that would cause a person driving at or near the speed limit to suddenly veer into the magnolia tree.” In addition, the plaintiffs did not contend that the view of the median was obstructed, that the tree was a surprise obstacle, or that the median and trees caused cars to travel at an unsafe speed. The court thus affirmed the judgment in the City’s favor.

COMMENT

The Cordova decision is strongly favorable to public entities defending cases under Government Code § 835. Its significance lies in its clear definition and application of the necessary causal relationship between public property and third-party conduct. Plaintiffs often attempt to defeat summary judgment – sometimes successfully – by arguing that a condition of public property “increased or intensified” the risk to them by, for example, preventing them from seeing or avoiding the negligent or criminal third-party or, as in Cordova, by increasing the severity of the injuries resulting from the third-party conduct. As the Cordova decision makes clear, however, the property can only be considered dangerous when it allows, enables or facilitates the third-party conduct in the first place.

For a copy of the complete decision see:

http://www.courts.ca.gov/opinions/documents/B236195.PDF

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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