Bunker v. City of Glendale

• Decision Date: 23 October 1980
• Citation: 168 Cal.Rptr. 565,111 Cal.App.3d 325
• Court: California Court of Appeals Court of Appeals
• Parties: Cary Lee BUNKER, Plaintiff and Respondent, v. CITY OF GLENDALE, Defendant and Appellant. Civ. 57261.

Page 565

168 Cal.Rptr. 565

111 Cal.App.3d 325

Cary Lee BUNKER, Plaintiff and Respondent, v. CITY OF GLENDALE, Defendant and Appellant.

Civ. 57261.

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

Oct. 23, 1980.

Rehearing Denied Nov. 19, 1980.

Hearing Denied Dec. 17, 1980.

Frank R. Manzano, City Atty. by Dennis H. Schuck, Asst. City Atty., for defendant and appellant.

Robert Feinstein, Encino, Russell Iungerich, and Judith M. Mitchell, Los Angeles, Attorneys at Law by Russell Iungerich, Los Angeles, for plaintiff and respondent.

FLEMING, Associate Justice.

Defendant City of Glendale appeals a judgment in favor of plaintiff Cary Lee Bunker in an action for personal injuries and property damage.

At 10 p. m. on 5 August 1972 Bunker was riding his motorcycle up a steep hill on Adams Street in Glendale. As Bunker was approaching the top of the hill, Lillie Minor was backing her vehicle out of a driveway on the far side of the hill 55 feet below the crest. Because of the steepness of the grade of the hill, Bunker was unable to see Minor's vehicle until he reached the top of the hill, at which time he was traveling 25 to 30 miles per hour. At that speed he was unable to stop in sufficient time to avoid a collision with Minor's vehicle. The posted speed limit on Adams Street was 25 miles per hour. However, approximately 500 feet before the crest of the hill there was a sign which advised motorists to "Slow To 15 Miles an Hour."

Bunker later commenced this action against the City of Glendale and Lillie Minor. Minor settled with Bunker prior to trial. City's motion for summary judgment on the ground it was immune from liability was denied. (Gov.Code, §§ 830.4, 830.8.) In a special verdict the jury found that City knew and failed to warn of a dangerous condition, and it assessed Bunker's damages at $100,000. However, the jury also found that Bunker, who had driven over the hill on many other occasions prior to the accident was contributorily negligent, and it fixed his liability at 44 percent, apportioning the remaining 56 percent to City. The verdict of $56,000 against City was reduced by the $25,000 Bunker had received in his settlement with Minor, and judgment was entered for Bunker for $31,000. On appeal, City contends (1) there was insufficient evidence to support the jury's finding that City failed to warn of a dangerous condition, and (2) the trial court erred in denying City's motion for a mistrial due to juror misconduct.

1. Generally, a public entity is liable for injury caused by the dangerous condition of its property if the entity had notice of the danger and failed to take appropriate measures to warn of or remedy the condition. (Gov.Code, § 835; Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488, 135 Cal.Rptr. 296.) At bench, City does not contest the fact that the lack of visibility on Adams Street constituted a dangerous condition. However, City argues that the sign advising motorists to "Slow to 15 Miles an Hour" gave sufficient warning of the danger, and that Bunker could have avoided the collision if he had conformed his speed to that advised by the sign. City also contends, citing Government Code section 830.4, that even if the sign did not give sufficient warning of the danger, failure to post an adequate sign cannot furnish a basis for imposition of liability upon a public entity.

Government Code section 830.4 states that the absence of traffic control signals or signs does not in itself make a condition a dangerous one. However, when a dangerous condition exists which would not be reasonably apparent to, or anticipated by, a person exercising due care, and a sign is necessary to warn of the condition, the public entity's failure to provide such a sign may provide a basis for imposition of liability against the public entity. (Gov.Code, § 830.8; Cameron v. State of California (1972) 7 Cal.3d 318, 102 Cal.Rptr. 305, 497 P.2d 777; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 135 Cal.Rptr. 127.) At bench, the sign which advised oncoming traffic to slow to 15 miles per hour was sited three intersections away from, and approximately 500 feet below, the crest of the hill. There was evidence that motorists could not tell whether the warning applied to the intersections or to the grade of the hill. The jury's conclusion that the City failed to warn motorists about a dangerous condition is supported by evidence which, if not exactly overwhelming, squeaks by the current standard for substantiality of evidence.

2. City asserts that its motion for a mistrial based on juror misconduct was erroneously denied. During jury deliberations nine of the 12 jurors agreed that City and Bunker were liable for the accident. In apportioning liability, the nine jurors added up the figures each had arrived at individually and then divided the total by nine. City contends this procedure produced an improper quotient verdict. (See Bardessono v. Michels (1971) 3 Cal.3d 780, 794, 91 Cal.Rptr. 760, 478 P.2d 480.) But a verdict based upon a quotient figure is not improper, if, after the quotient figure has been computed, the jurors are polled, and each agrees that the tentative figure arrived at represents a proper distribution of responsibility among the respective parties. (See Bardessono v. Michels, supra, at pp. 794-795, 91 Cal.Rptr. 760, 478 P.2d 480.) Bunker presented six jurors' declarations stating that the jurors had not agreed in advance to be bound by the quotient figure and had adopted that figure as their verdict only after further discussion and balloting. City presented other jurors' declarations stating that agreement had been reached in advance to adopt whatever figure resulted from the quotient process. Where declarations conflict, the trial judge's determination as to which set of declarations he finds credible will not be disturbed on appeal. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108, 95 Cal.Rptr. 516, 485 P.2d 1132.)

City's final contention about jury irregularities during deliberations is without merit.

The judgment is affirmed.

ROTH, P. J., concurs.

BEACH, Associate Justice, dissenting.

I dissent.

A public entity is not liable for injury to persons except as provided by statute. (Gov.Code, sec. 815.) ¹ Statutory liability is imposed for injury resulting from the public entity's creation, or its failure to warn, of a "dangerous condition" on or near its property. (Gov.Code, § 835.) However, the "dangerous condition" does not include property which is safe when used in a reasonably foreseeable manner with due care and is dangerous only if used without due care. (§ 830.) Moreover, even when property is used with due care, a minor risk of injury does not create liability. The risk must be substantial. (§ 830.)

There was no substantial evidence that there was a dangerous condition or that the city failed to warn of such condition and that such failure was the proximate cause of the accident here. The city was entitled to a directed verdict in its favor.

Admittedly, disputed issues regarding dangerous conditions (including the degree of risk and exposure of harm to those using care) usually present questions of fact and therefore are for the jury to decide. (Cameron v. State of California (1972) 7 Cal.3d 318, 102 Cal.Rptr. 305, 497 P.2d 777; Harland v. State of California (1977) 75 Cal.App.3d 475, 142 Cal.Rptr. 201; County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 144 Cal.Rptr. 296.) Nonetheless, such a determination by a jury must be supported by substantial, relevant evidence. Moreover, where the essential facts pleaded or established are not in dispute, it remains the statutory duty of the trial and appellate court (§ 830.2), viewing the evidence most favorably to the plaintiff, to determine as a matter of law whether any risk created by the condition was a minor one and whether any reasonable person would conclude that the condition created a substantial risk if the property was used with due care. (§ 830.2.) Accordingly, it is no answer under the circumstances here to say that the jury "found" a dangerous condition. This court must examine the evidence and determine therefrom whether it is relevant, as well as substantial enough to support not only the findings of fact but also the legal conclusions drawn therefrom. The record at bench establishes as a matter of law there was no dangerous condition. This determination may be, and here must be, made as a matter of law. (McKray v. State of California (1977) 74 Cal.App.3d 59, 141 Cal.Rptr. 280; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 139 Cal.Rptr. 876; Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 100 Cal.Rptr. 498; Callahan v. City & County of San Francisco (1971) 15 Cal.App.3d 374, 93 Cal.Rptr. 122; Goss v. State of California (1978) 82 Cal.App.3d 426, 147 Cal.Rptr. 110; Pfeifer v. County of San Joaquin (1967) 67 Cal.2d 177, 60 Cal.Rptr. 493, 430 P.2d 51; Smith v. City of San Jose (1965) 238 Cal.App.2d 599, 48 Cal.Rptr. 108; see also Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) pp. 194-196, 205.)

Accepting at bench all of plaintiff's evidence relative to the physical features, the entire testimony, including that of the alleged experts, when reduced to simple yet adequate terms discloses the presence of an ordinary city street which ascends a hill, continues on over the crest and down the other side. The facts disclose further that a motorist ascending the hill cannot see what is on the other side. There is nothing more than that as to the alleged "dangerous condition". A school child knows that a person driving up a hill cannot see what is on the other side.

An ordinary, natural topographical condition is not a dangerous condition of property within the meaning of the Governmental Tort Liability Law. It is such and requires a warning sign only when it constitutes a deceptive condition or trap...