Bakity v. County of Riverside

• Decision Date: 16 October 1970
• Citation: 90 Cal.Rptr. 541,12 Cal.App.3d 24
• Court: California Court of Appeals Court of Appeals
• Parties: Robert J. BAKITY, by his Guardian ad Litem, George Bakity, Plaintiff and Respondent, v. COUNTY OF RIVERSIDE et al., Defendant and Appellant. Civ. 9608.

Page 541

90 Cal.Rptr. 541

12 Cal.App.3d 24

Robert J. BAKITY, by his Guardian ad Litem, George Bakity, Plaintiff and Respondent, v. COUNTY OF RIVERSIDE et al., Defendant and Appellant.

Civ. 9608.

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

Oct. 16, 1970.

Thompson & Colegate by Thomas H. Fitzpatrick, Riverside, for defendant and appellant.

Carroll & Anderson by Allen J. Kent, Indio, for plaintiff and respondent.

OPINION

TAMURA, Acting Presiding Justice.

Plaintiff was injured in a two-car intersection collision. He brought the present action against the County of Riverside on the theory that the accident was caused by a dangerous condition of public property. Following a jury verdict and judgment for plaintiff, defendant unsuccessfully moved for a judgment notwithstanding the verdict and for a new trial. Defendant appeals from the orders denying the two motions and from the judgment. ¹

Although defendant seeks reversal on several grounds, the thrust of its appeal is that there was no substantial evidence of its liability.

It is axiomatic that a reviewing court must view the evidence in the light most favorable to the party prevailing below. (Waller v. Southern Pacific Co., 66 Cal.2d 201, 204, 57 Cal.Rptr. 353, 424 P.2d 937; Estate of Teel, 25 Cal.2d 520, 527, 154 P.2d 384; Crawford v. Southern Pac. Co., 3 Cal.2d 427, 429, 45 P.2d 183.) As so viewed, the evidence may be summarized as follows:

The accident occurred at about 7:00 p.m. on April 2, 1965, at the intersection of two county highways, Avenue 51, an eastwest street, and Calhoun Street, a northsouth street. Avenue 51 was controlled by stop signs. Plaintiff was a passenger in a vehicle northbound on Calhoun which was struck by a vehicle westbound on Avenue 51 driven by Ernest Moreno. The collision occurred when the Moreno vehicle failed to stop at the intersection.

The stop sign controlling westbound traffic on Avenue 51 was located 36 feet east of the east line of Calhoun Street and near a eucalyptus tree growing on county right of way. There were no 'Stop Ahead' warning signs either posted or on the pavement for westbound traffic on Avenue 51. There were several tangerine trees near the southeast corner of the intersection which obstructed the vision of each driver of the approach of the other vehicle for a distance of about 100 feet from the intersection.

The speed limit on Avenue 51 was 65 miles per hour. At the time of the accident it was overcast and dark and the pavement was wet from a recent rain. The intersection was unlighted.

Mr. Moreno did not recall the collision or the events immediately preceding it. He testified that he had travelled on Avenue 51 a few times during the day in the year prior to the accident, but had never travelled it at night. Mrs. Moreno, who was with her husband, did not see the stop sign until the vehicle was 'right on top of it.' She testified it was at this point Mr. Moreno applied his brakes. A California Highway Patrol officer who investigated the accident estimated the speed of the Moreno vehicle at the point of impact to be 30--40 miles per hour. Blood tests taken of Mr. Moreno shortly after the accident revealed a blood alcohol count of 0.10.

A witness who resided at one corner of the intersection for about four or five years testified that during the day the shade from the trees on Avenue 51 made the stop sign difficult to see and that he had observed cars failing to stop. Several defense witnesses testified that they had travelled Avenue 51 and had no difficulty seeing the stop sign; those witnesses all had known of the existence of the stop sign.

An investigating highway patrol officer testified that on low beam the stop sign would be illuminated at a distance of approximately 350 feet. In his opinion if a vehicle were travelling 65 miles per hour, it could not be stopped within a distance of 350 feet.

I

Defendant urges that there was no substantial evidence to support a finding that a dangerous condition existed or that, if such condition did exist, it was the proximate cause of plaintiff's injuries.

In order to establish liability of a public entity for a dangerous condition under applicable provisions of the Tort Claims Act of 1963 (Gov.Code, §§ 830--840.6), plaintiff must establish by preponderance of the evidence the elements required by section 835 of the Government Code. That section 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.'

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.) 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. (Gov.Code, § 830.2; Gray v. Brinkerhoff, 41 Cal.2d 180, 183, 258 P.2d 834; Curreri v. City, etc., of San Francisco, 262 Cal.App.2d 603, 611, 69 Cal.Rptr. 20; Branzel v. City of Concord, 247 Cal.App.2d 68, 73, 55 Cal.Rptr. 167; Holder v. City of Santa Ana, 205 Cal.App.2d 194, 197--198, 22 Cal.Rptr. 707.)

In the present case the jury could reasonably have found the existence of a dangerous condition at the intersection. There were tangerine trees at the southeast corner of the intersection which obstructed the view of approaching vehicles within 10 feet of the intersection. While the record is unclear whether the trees were on or off the county right of way, assuming they were growing on adjacent property, the jury could nevertheless have reasonably inferred that by reason of their proximity to the intersection they exposed motorists using the highway to a substantial risk of injury. Condition of public property may be dangerous where the condition of adjacent property exposes those using public property to a substantial risk of harm. (Branzel v. City of Concord, Supra, 247 Cal.App.2d 68, 75, 55 Cal.Rptr. 167.) '(A) municipality may be held liable for failure to guard against accidents due to a dangerous or defective condition even though that condition exists off the traveled portion of the highway so long as it is so connected with or in such proximity to the traveled portion of the highway as to render it unsafe to those traveling thereon.' (Gallipo v. City of Long Beach, 146 Cal.App.2d 520, 528, 304 P.2d 106, 110; Campbell v. City of Palm Springs, 218 Cal.App.2d 12, 22, 32 Cal.Rptr. 164; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 597, 334 P.2d 968; Rose v. County of Orange, 94 Cal.App.2d 688, 691, 211 P.2d 45.)

The principle announced in those cases is preserved under the Tort Claims Act. In its comment to section 830 the Law Revision Commission states in pertinent part:

'Under the definition as it is used in subsequent sections, a public entity cannot be held liable for dangerous conditions of 'adjacent property.' A public entity may be liable only for dangerous conditions of its own property. But its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and Its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.' (Emp. added.)

The fact that the stop sign was located 36 feet east of the easterly line of the intersection without any signs warning motorists of the impending stop, either posted or painted on the pavement, constituted a further circumstance supporting the finding of a dangerous condition. It is common knowledge that stop signs are normally placed at the point where vehicles are intended to be stopped. In the present case there was expert testimony by defendant's traffic engineer to that effect. Placing a stop sign in an unanticipated position could constitute a trap for an unwary motorist. Although sections 830.4 and 830.8 of the Government Code, quoted below, ² provide that a public entity may not be held liable for failure to install traffic signs or signals, when it does so in such a manner as to constitute a trap, liability may be imposed for the maintenance of a dangerous condition. (Teall v. City of Cudahy, 60 Cal.2d 431, 434, 34 Cal.Rptr. 869, 386 P.2d 493; Hilts v. County of Solano, 265 Cal.App.2d 161, 174, 71 Cal.Rptr. 275.) Section 830.8 of the Government Code does not exonerate a public entity for failure to post traffic signs where they are necessary to warn motorists of the existence of a dangerous condition. (Hilts v. County of Solano, Supra; see Pfeifer v. County of San Joaquin, 67 Cal.2d 177, 184, 60 Cal.Rptr. 493, 430 P.2d 51.) We conclude that there was substantial evidence to support the find of the existence of a dangerous condition.

Defendant also urges that Mr. Moreno's failure to stop was, as a matter of law, the sole proximate cause of the accident. The contention is devoid of merit.

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. (California...