Antenor v. City of Los Angeles

• Decision Date: 18 November 1985
• Citation: 174 Cal.App.3d 477,220 Cal.Rptr. 181
• Court: California Court of Appeals Court of Appeals
• Parties: Erlinda Mercado ANTENOR et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent. Civ. B007195.

Page 181

220 Cal.Rptr. 181

174 Cal.App.3d 477

Erlinda Mercado ANTENOR et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

Civ. B007195.

Court of Appeal, Second District, Division 5, California.

Nov. 18, 1985.

Review Denied Feb. 13, 1986.

Contarino, Hutchinson & Cherin and Robert B. Hutchinson, Beverly Hills, for plaintiffs and appellants

Gary R. Netzer, City Atty., John T. Neville, Senior Asst. City Atty., and Richard M. Helgeson, Asst. City Atty., for defendant and respondent.

RILEY, Associate Justice. ^*

On February 12, 1979, at approximately 6:20 p.m., pedestrians/plaintiffs Erlinda Mercado Antenor and her husband, Abraham Reyes Antenor, (plaintiffs) were struck in an unmarked crosswalk by a westbound 1979 Buick, as they were crossing Third Street, south to north, on the westerly side of the Grammercy Place intersection.

On November 30, 1979, plaintiffs filed a personal injury damage suit against the City of Los Angeles (the City) alleging that the City was maintaining a dangerous condition of public property.

At the conclusion of the evidence, the trial court granted the City's motion for a directed verdict. Plaintiffs have appealed.

APPELLANT'S CONTENTION

Plaintiffs/appellants contend that the lack of pedestrian and/or traffic control, inadequate lighting, high traffic volume and the "geometrics" of Third Street at the intersection combined to create a "dangerous condition." It is further their contention that the existence of a "dangerous condition" is a factual question for the jury and not one to be determined by the court on a motion for a nonsuit.

DISCUSSION

Preliminary, it is necessary to detail the physical characteristics of the intersection in question and to set out certain pertinent evidence as it bears upon the issues.

I

Third Street at its intersection with Grammercy Place is 54 feet wide with two lanes in each direction, plus a left turn channel. No traffic signals or stop signs are present. There are no painted pedestrian crosswalks, no signs warning of pedestrian traffic, and no signs prohibiting pedestrians from crossing Third Street at this location. ¹

The easterly line of sight from the Grammercy intersection is 430 feet. From St. Andrews Place, the first intersection to the east, Third Street slopes downward to Grammercy--6 percent according to the city engineers, and 7 percent according to Allen Weber (Weber), plaintiffs' expert. This was referred to by Weber as the "geometrics" of the road, and as its "vertical curve."

Using a light meter, Weber measured the foot candles of the light intensity at each of the four corners of the intersection, and made the following findings: On the southwest corner, the illumination level was .18 foot candles; on the northeast corner, .12 foot candles; the northwest corner, .08 foot candles; and the southeast corner, .6 foot candles.

Lighting guidelines promulgated by the California Department of Transportation in its State Traffic Manual provide: " 'In urban areas and expressways, 0.15 horizontal foot candles on the area normally bound by the crosswalks and .6 horizontal foot candles at the intersection of center lines of the entering streets.' "

However, in the foreward to the manual, the limiting language appears: " 'This manual establishes uniform policies and procedures for traffic functions of the Department of Transportation. It is neither designed as, nor does it establish a legal standard for these functions.' "

The American National Standard recommended guidelines, as published by The Illuminating Engineering Society, are 1.4 "...

foot candles for a major street, .9 for a collector street, and .6 for a local street. Its disclaimer language is even more illuminating: " 'The primary purpose of this standards practice is to serve as a basis for designing affixed lighting for roadways, bikeways and pedestrians. The standard practice deals entirely with lighting and does not give advice on construction practice. It is neither intended as, nor does it establish a legal standard for roadway lighting systems. Its purpose is to provide recommended practices for designing new roadway lighting systems, and it is not intended to be applied to existing lighting systems until such systems are redesigned. It has been prepared to advance the art, science and practice of illumination as it pertains to roadway lighting in North America.'

" 'The decision to provide roadway lighting at a particular road location should be made on the basis of a detailed study, thus the publication is not a substitute for reasoned judgment. Variations may be considered from this standard practice based upon sound engineering judgment.' "

Although Weber testified that he considered Third Street to carry heavy traffic, nothing in the evidence indicates that traffic volume had anything to do with the accident. Less than 60 days prior to February 12, 1979, the City had conducted a traffic safety engineering study at the Third Street/Grammercy intersection, and had concluded that no marked crosswalks, traffic stop signs or signal lights were necessary. The records of the senior traffic engineer's office showed that since 1976, when the marked crosswalk was removed in favor of the left turn channel, only two requests for a reinstallation had been received, one in 1978 and the other in 1979. In response to these inquiries, a manual pedestrian crossing count had been undertaken on September 14, 1978, (a Thursday) between the hours of 7 a.m. and 10 a.m., and again from 3 p.m. and 6 p.m. During that six-hour period, 20 pedestrians had crossed Third Street at Grammercy, as contrasted with the 148 crossing Grammercy at Third. The nighttime vehicular accident history at the intersection is not remarkable--never more than one a year, and some years, none at all. There had been no pedestrian versus auto accidents.

II

Stripped of all the nonessential language, there were two grounds for the City's motion for nonsuit: (1) there was insufficient evidence as a matter of law (Cal.Gov.Code, § 830.2) to support a finding that the Third Street/Grammercy Place intersection created a "dangerous condition," ² and (2) the design immunity of Government Code section 830.6 applies to the facts of this case.

III

While recognizing that Government Code section 830.2 codified a line of decisions involving breaks, depressions and irregularities in sidewalk surfaces, the Law Revision Commission comment is instructive upon the scope of the section. "This section declares a rule that has been applied by the courts in cases involving dangerous conditions of sidewalks. Technically it is unnecessary, for it merely declares the rule that would be applied in any event when a court rules upon the sufficiency of the evidence. It is included in the chapter to emphasize that the courts are required to determine that there is evidence from which a reasonable person could conclude that a substantial, as opposed to a possible, risk is involved before they may permit the jury to find that a condition is dangerous."

Barone v. City of San Jose (1978) 79 Cal.App.3d 284, at pages 290-291, 144 Cal.Rptr. 836, a case involving a fall on a public sidewalk, suggests the proper approach: "Our analysis of the cases in this field, despite some overlapping language, persuades us that the correct approach in cases of this nature is to determine first if the claimed defect is too trivial, as a matter of law, to be dangerous. An inquiry into this issue is a logical preliminary step before reaching the larger question of whether the nature of the defect, along with other circumstances, is sufficient to raise a jury question concerning notice. This initial inquiry into the question of 'dangerousness' would involve consideration of such matters as the size and location of the defect with respect to the surrounding area and lighting conditions and whether it has been the cause of other accidents; while the question of notice would necessarily involve not only the factors which are primarily related to 'dangerousness,' but also such matters as the visibility of the condition, the frequency of travel in the area and the probability, if any, that a reasonable inspection by the appropriate public officials would have discovered its existence and its dangerous character."

To the same effect is Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734, 139 Cal.Rptr. 876, another sidewalk case. "We hold that, in the first instance, it is for the court to determine whether, as a matter of law, a given defect is not...