Cerna v. City of Oakland

• Decision Date: 11 April 2008
• Docket Number: No. A115296.,A115296.
• Citation: 75 Cal.Rptr.3d 168,161 Cal.App.4th 1340
• Court: California Court of Appeals Court of Appeals
• Parties: Sonia CERNA et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents.

75 Cal.Rptr.3d 168

161 Cal.App.4th 1340

Sonia CERNA et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents.

No. A115296.

Court of Appeal, First District, Division 4.

April 11, 2008.

Michael B. Moore; Herbert W. Yanowitz, for Appellant.

Oakland City Attorney's Office, John A. Russo, Randolph W. Hall, Oakland, William E. Simmons, Christopher Kee, for Respondent City of Oakland.

Lafayette & Kumagai, Gary T. Lafayette, Forrest E. Fang, San Francisco, for Respondent Oakland Unified School District.

SEPULVEDA, J.

A motorist killed one child and injured others as they crossed a city street on their way to school. A lawsuit was brought against the city and school district upon allegations that their negligence contributed to the accident. The trial court granted defendants summary judgment upon concluding, among other things, that the city intersection did not create a dangerous condition (Gov.Code, § 830.2) and that the school district was not responsible for the safety of students outside school premises (Ed.Code, § 44808). We affirm the judgment.

I. FACTS

On the morning of January 15, 2002, an unlicensed motorist struck six pedestrians as they walked in a marked crosswalk at the intersection of International Boulevard and 27th Avenue in Oakland, California. The pedestrians were a family on the way to school, and consisted of Maribel Espinoza and her three children (Juan, Jr., Kathy, and Anylene Espinoza), and Maribel's niece and nephew, Ana and Juan Cerna, Jr. The collision killed Ana and injured the others. The motorist was convicted of vehicular manslaughter. (Pen.Code, § 192, subd. (c).)

This appeal concerns a lawsuit brought by the surviving pedestrians and family members against the City of Oakland (City), for the alleged dangerous condition of its intersection, and the Oakland Unified School District (District), for its alleged negligence in failing to assure safe school access.¹ The trial court granted summary judgment to the City and District. We now turn to the facts established on the motion for summary judgment.²

Photographs of International Boulevard show it to be a four lane road, with two lanes in each direction separated in places with a concrete island divider between the opposing lanes of traffic. The intersection of International Boulevard and 27th Avenue has a marked crosswalk: the roadway is painted with white parallel lines at the intersection, the eastbound approach to the intersection has "PED XING" painted on the roadway, and two yellow traffic signs posted on the pavement separately depict a pedestrian and school crossing.

The International Community School (School) opened in the fall of 2001. At the time of the accident on January 15, 2002, pupils and staff at the School were housed in temporary buildings and the only school entrance was on 29th Avenue. The intersection nearest the School, at 29th Avenue and International Boulevard, is controlled with a traffic light. Plaintiff Maribel Espinoza knew from the first day of school in September 2001 that there was no traffic light or crossing guard at the intersection of International Boulevard and 27th Avenue. Maribel concluded that she and her children could cross International Boulevard at 27th Avenue safely, and that the crosswalk at that intersection was equally as safe as the crosswalk along International Boulevard at 29th Avenue, where there is a traffic light. With only one exception, Maribel crossed International Boulevard at 27th Avenue four times each school day between September 2001 and the day of the accident in January 2002.

On the day of the accident, Maribel and the children remained within the crosswalk from the time they stepped off the curb until the accident. Maribel and the children crossed safely to the center divider. Maribel, pushing a baby stroller, stood on the center divider and looked down International Boulevard to 23rd Avenue, where eastbound traffic coming from downtown Oakland was stopped at a traffic light. Maribel stepped off the center divider with the children just as the traffic began to move in their direction. Maribel saw several cars approaching and thought they would stop and yield to her and the children in the crosswalk. Maribel first saw the green car that struck them when it was in the curb lane about three car lengths away. Maribel thought the car would stop. Instead of stopping, the car changed lanes to the lane closest to the center divider, where it struck Maribel and the children.

A police officer testified that there was no physical evidence that the motorist, Osvaldo Urzua, slowed or swerved before striking the pedestrians. Photographs of the accident scene show the weather conditions to be sunny and dry. Both the photographs and the testimony of a police officer who responded to the scene attest to the fact that the sun rises in the direct line of sight of eastbound motorists on International Boulevard, and the glare from the rising sun was intensely strong along International Boulevard minutes after the accident.

II. DISCUSSION

The trial court, granted the City and District summary judgment on several grounds. Two principal grounds are dispositive on appeal: (1) the City intersection at International Boulevard and 27th Avenue did not create a dangerous condition (Gov.Code, § 830.2); and (2) the District was not responsible for the safety of students outside school premises (Ed. Code, § 44808).³

A. Standard of review

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) In considering a request for summary judgment by a defendant, the statute instructs that such a party "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) An appellate court reviews de novo a trial court's decision to grant a summary judgment motion. (Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855, 70 Cal.Rptr.2d 595.)

B. General principles concerning a dangerous condition of public property

A public entity like the City is not liable for an injury arising out of an act or omission of the public entity or its employees except as provided by statute. (Gov.Code, § 815, subd. (a).) The sole statutory basis for imposing liability on public entities as property owners is Government Code section 835. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1131-1132, 119 Cal.Rptr.2d 709, 45 P.3d 1171; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438-439, 6 Cal.Rptr.3d 316.) Under that 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 ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Gov.Code, § 835.) The element at issue here is the existence of a dangerous condition.

A "dangerous condition" is defined as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov.Code, § 830, subd. (a).) The existence of a dangerous condition is ordinarily a question of fact but "can be decided as a matter of law if reasonable minds can come to only one conclusion." (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148, 132 Cal.Rptr.2d 341, 65 P.3d 807.) The Legislature has specified that "[a] condition is not dangerous ... if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property ... was used with due care in a manner which was reasonably foreseeable that it would be used." (Gov.Code, § 830.2.)

"[A] claim alleging a dangerous condition may not rely on generalized allegations [citation] but must specify in what manner the condition constituted a dangerous condition." (Brenner v. City of El Cajon, supra, 113 Cal.App.4th at p. 439, 6 Cal.Rptr.3d 316.) A plaintiffs allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at pp. 1135-1136, 119 Cal.Rptr.2d 709, 45 P.3d 1171; Brenner, supra, 113 Cal.App.4th at pp. 440-441, 6 Cal.Rptr.3d 316.) A dangerous condition exists when public property "is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself," or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users. (Bonanno v. Central Contra Costa Transit Authority, supra, ...