City of San Diego v. Superior Court

• Decision Date: 28 February 2006
• Docket Number: No. D046281.,D046281.
• Citation: 40 Cal.Rptr.3d 26,137 Cal.App.4th 21
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SAN DIEGO, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Deborah J. Hanson et al., Real Parties in Interest.

40 Cal.Rptr.3d 26

137 Cal.App.4th 21

CITY OF SAN DIEGO, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent;

Deborah J. Hanson et al., Real Parties in Interest.

No. D046281.

Court of Appeal, Fourth District, Division 1.

February 28, 2006.

Michael J. Aguirre, City Attorney, and David Engel-Brodie, Deputy City Attorney, for Petitioner.

No appearance for Respondent.

William J. Roberts, Torrance, for Real Parties in Interest Deborah J. Hanson and Richard G. Geerts III, as Guardian Ad Litem for Michael Hanson, Ken Hanson and Faye Turner.

BENKE, Acting P.J.

An illegal street race resulted in the death of nonrace participants Shanna Jump and Brian Hanson (Brian) and the serious injury of Michael Hanson (Michael). Michael and the parents of Brian sued the race participants and City of San Diego (City). As to City, plaintiffs stated causes of action for the dangerous condition of public property, wrongful death and the negligent infliction of emotional distress. City sought summary judgment, arguing the street on which the accident occurred was not in a dangerous condition. The trial court denied the motion. City petitioned for a writ of mandate and this court ordered the trial court to show cause why the relief requested should not be granted. We grant City's petition for peremptory writ of mandate.

BACKGROUND

A. Complaint

The complaint alleges at approximately 7:00 p.m. on October 6, 2002, an illegal street race between two cars, one without its lights on, was underway northbound on Imperial Avenue between 69th Street and Viewcrest Drive in the City of San Diego. As the racers neared Viewcrest Drive, a car driven by Shanna Jump began a turn from southbound Imperial Avenue to Viewcrest Drive. As her car turned across Imperial Avenue, it was struck in the side by the vehicle racing without its headlights on. The catastrophic collision resulted in Jump's death and the death of her passenger Brian and the serious injury of the other passenger, Michael.

With regard to their causes of action against City for the maintenance of a dangerous condition, plaintiffs alleged at trial City was aware the straight, quarter-mile length of Imperial Avenue between 69th Street and Viewcrest Drive had been the frequent scene of street races since 1992. Imperial Avenue in that area is two lanes in each direction, the posted speed limit is 50 miles per hour and there are no traffic controls, speed bumps or natural conditions that deter street racing. The finish line for the races is the intersection at Viewcrest Drive. The length of road on which the races occur is poorly lighted at night. The complaint alleged drivers attempting to turn across Imperial Avenue at that location are in danger because, given the poor illumination, they cannot see or gauge the speed of approaching racers.

B. Motion for Summary Judgment

City filed a motion for summary judgment, arguing that as to the cause of action for the maintenance of a dangerous condition of public property, no triable issue of fact existed because it owed no duty to plaintiffs to protect against third party criminal activity and the street where the accident occurred had no defects and is safe when used with care. City argued it was immune from liability for lack of police protection, lack of traffic signs or signals, or the lack of street lighting. Additionally, City noted it had taken reasonable steps to curtail street racing in the city.

C. Opposition to Motion for Summary Judgment

Plaintiffs argued there were defects in the condition of Imperial Avenue at the location of the accident. They argued the divided road, with two lanes in each direction with few intersections and with a long, level unobstructed straightaway was an invitation to street racing. The danger was increased because poor lighting at the scene made it difficult for drivers to see or gauge the closing speed of cars racing on the street.

D. Denial of Motion for Summary Judgment

The trial court denied City's motion for summary judgment. It noted whether a given set of facts or circumstances creates a dangerous condition is generally a question of fact. It concluded while a public entity has no duty to protect persons from criminal activity, a duty could exist when the very basis for the public entity's claimed negligence is that it created a reasonably foreseeable risk of such third party conduct.

The court noted evidence that because the intersection was poorly lighted and because shadows were cast on the roadway by trees, it appeared to drivers turning across Imperial Avenue that approaching traffic was traveling much slower than it actually was. The court concluded this evidence created a triable issue of fact concerning whether City maintained the roadway in a dangerous condition.

E. The Petition

In its petition City argues the trial court erred in denying its motion for summary judgment. It contends because none of Imperial Avenue's features create a substantial risk of injury when the street is used with due care, the court erred in finding the street could be in a dangerous condition. Additionally, City argues the court erred in finding it had a duty to install additional streetlights because nothing about Imperial Avenue makes lighting necessary for safe travel.

An order denying a motion for summary judgment may be reviewed by a petition for writ of mandate. Where the trial court's denial of a motion for summary judgment would result in a trial on nonactionable claims, a writ of mandate will issue. (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1005, 20 Cal.Rptr.3d 530.)

A party moving for summary judgment bears the burden of persuasion there is no triable issue of material fact and is entitled to judgment as a matter of law. A defendant satisfies this burden by showing one or more elements of the cause of action in question cannot be established or there is a complete defense to that cause of action. If the defendant meets this initial burden, the opposing party must then make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

We review the denial of a motion for summary judgment de novo. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 560, 130 Cal.Rptr.2d 26.) We strictly construe the moving party's affidavits and liberally construe the opposing party's affidavits. We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence. In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true. (Fraizer v. Velkura (2001) 91 Cal.App.4th 942, 945, 110 Cal.Rptr.2d 918.)

DISCUSSION

A. The Accident and the Street Race

On October 6, 2002, at approximately 7:00 p.m. dusk, two cars were racing northbound on Imperial Avenue. At that location the roadway is divided, straight and relatively level. The race was occurring at over 85 miles per hour. Imperial Avenue has two lanes of travel in each direction. The speed limit on that section of the road is 50 miles per hour. One racer's vehicle had its headlights on; the other did not. As the race neared the intersection of Viewcrest Drive, a car driven by Jump began a left turn from the southbound lanes of Imperial Avenue to Viewcrest Drive. As she did so, her car was struck broadside by the racer's vehicle without its headlights on. The collision resulted in the death of Jump and one of her passengers and the serious injury of another passenger in her car.

There were two witnesses to events surrounding the accident. Moments before the accident, Juan Tavares was parked on Viewcrest Drive at its intersection with Imperial Avenue. He heard the sound of what he described as a "v-eight muscle car" coming up Imperial Avenue. Tavares could see one set of headlights approaching from the direction of the engine noise. One car turned from the southbound lanes of Imperial Avenue across the path of the oncoming car and successfully exited onto Viewcrest Drive. Tavares then saw Jump attempt the same turn. Tavares believed Jump's car would be able to clear the intersection before the oncoming car reached it. However, the car racing without its headlights on and not seen by Tavares was moving up Imperial next to the racing car with its headlights on. In the last seconds before impact, Tavares saw the car racing without its headlights on and knew there was going to be a collision. The racing car without its headlights on struck Jump's vehicle.

Jonathan Spooner was the driver who turned across the intersection before the accident. As Spooner began to make his turn, he checked for oncoming traffic. Spooner noticed a car parked at the end of Viewcrest Drive. Its occupants were standing outside looking down Imperial Avenue. Spooner, aware Imperial Avenue was used for street racing, made an effort to look farther up the street than he normally would have done. Given the poor lighting conditions, Spooner squinted to improve his vision of oncoming vehicles. Spooner noticed a car with its headlights on coming towards him in the lane closest to the center of the road. Spooner could see a second car without its headlights on next to the first car. Spooner was able to see the second car because it was slightly ahead of the first car and the headlights of the first car illuminated its side.¹

City conceded the intersection of Imperial and Viewcrest is not well lighted in the evening. Plaintiffs stated it was not lighted at all. Pursuant to City policy and subject to the availability of funds, 34 additional streetlights would be appropriate along the area of Imperial Avenue where the race occurred. A visibility expert stated that given the lighting conditions, it would have been difficult to see the car without its headlights on coming up Imperial...