Guernsey v. City of Salinas

• Decision Date: 17 December 2018
• Docket Number: H043283
• Citation: 30 Cal.App.5th 269,241 Cal.Rptr.3d 335
• Court: California Court of Appeals
• Parties: UN SUK GUERNSEY, BY AND THROUGH Her Conservator, Cara GUERNSEY et al., Plaintiffs and Appellants, v. CITY OF SALINAS et al., Defendants and Respondents.

30 Cal.App.5th 269

241 Cal.Rptr.3d 335

UN SUK GUERNSEY, BY AND THROUGH Her Conservator, Cara GUERNSEY et al., Plaintiffs and Appellants,

v.CITY OF SALINAS et al., Defendants and Respondents.

H043283

Court of Appeal, Sixth District, California.

Filed December 17, 2018

Attorneys for Plaintiffs and Appellants: Valerie T. McGinty, Law Office of Valerie T. McGinty, Daniel U. Smith, Law Office of Daniel U. Smith, Mary E. Alexander, Jennifer L. Fiore, Mary Alexander & Associates, P.C., San Francisco

Attorneys for Defendants and Respondents: Christopher A. Callihan, Office of the City Attorney, Vincent P. Hurley, Rachel Ostrander, Law Offices of Vincent P. Hurley, Aptos, Sabrina Heron Strong, Laura Perry Uyeno, Jefferson J. Harwell, O'Melveny & Myers LLP, Los Angeles

Mihara, J.

A driveway into the Westridge Shopping Center meets North Davis Road at a T-intersection in the City of Salinas (City). A 12-foot-wide crosswalk runs across the driveway on City property. The crosswalk was originally painted in 1997 and never repainted. A City ordinance provided that the City "shall ... maintain crosswalks at intersections ... by appropriate ... marks...."¹ (Salinas Municipal Code, § 20-43.) By 2013, the crosswalk had "faded" considerably. In 2013, plaintiff Un Suk Guernsey was crossing the driveway in the faded crosswalk when a truck that was turning left from North Davis Road into the driveway struck and severely injured her. Guernsey and her husband² sued the City, Celia Capulin (the driver of the truck), and others. Guernsey’s action against the City alleged that the City’s property was in a dangerous condition. ( Gov. Code, § 835.)

At the jury trial, over Guernsey’s objections, the court gave a special "[d]esign of the [d]riveway" jury instruction requested by the City, refused to give jury instructions requested by Guernsey on negligence per se ( CACI No. 418 ) and mandatory duty ( CACI No. 423 ) based on the City ordinance, and provided the jury with a special verdict form containing two fact-specific questions on dangerous condition to which Guernsey objected. The jury returned a multi-million dollar verdict against Capulin, but it found for the City on the two fact-specific dangerous condition questions. The jury wrote on the verdict form: "Paint the xwalk Salinas!" The trial court awarded the City its expert witness fees under Code of Civil Procedure section 998 after finding that the City’s $250,000 pretrial offer was reasonable.

On appeal, Guernsey contends that the trial court prejudicially erred by (1) giving the City’s requested "[d]esign of the [d]riveway" instruction, (2) using the two fact-specific dangerous condition questions on the special verdict form, (3) refusing to give the mandatory duty and negligence per se instructions, and (4) awarding the City its expert witness fees. We conclude that the trial court prejudicially erred in giving the City’s requested "[d]esign of the [d]riveway" instruction over Guernsey’s objections. We therefore reverse the judgment in favor of the City.

I. Evidence Presented At Trial

The crosswalk across the driveway was originally painted in 1997 with 12-inch-wide lines consisting of thermoplastic paint. Thermoplastic material lasts for five to 10 years. By 2013, the crosswalk’s lines had faded so much that they "weren't visible" but for some "remnants" near the curbs. It costs about $1,000 and takes about an hour to repaint a crosswalk.

The City’s Municipal Code requires it to maintain its crosswalks, but the City has no program for inspecting them. Instead, maintenance is "[l]argely complaint driven." The City adopted the Caltrans Traffic Manual, which became the "MUTCD" (Manual on Uniform Traffic Control Devices), and it requires crosswalks to have solid white lines, no less than 12 inches wide. The City knew that the failure to maintain crosswalk lines could be dangerous to pedestrians because the purpose of crosswalk markings is to warn motorists to expect pedestrians at that location.

Next to the crosswalk was a 16-foot-wide strip of pink stamped concrete that also went across the driveway. The pink concrete was not on the City’s property, nor was it controlled by the City. The stop sign for traffic exiting the driveway onto North Davis Road was not next to the crosswalk but in the pink concrete area, about 11 feet from the crosswalk. On the north side of the intersection, next to the driveway’s entrance lane, tall bushes hanging over the sidewalk limited the ability of a driver of an exiting vehicle to see southbound traffic. Most of the bushes were not on the City’s property, but the City had the authority to require that the owner of the bushes trim them or to have them trimmed and charge the owner. The City did not trim the bushes or require them to be trimmed. No prior pedestrian accidents had occurred at the intersection between the driveway and North Davis Road.

On February 8, 2013, Darel Sorenson was in his vehicle heading toward the driveway’s exit when he saw Guernsey approaching from his right. She was "on the sidewalk" 15 to 20 feet away from Sorenson’s vehicle "down at the other end" by North Davis Road. He stopped his vehicle "prior to the stop sign." Guernsey crossed the driveway in the crosswalk in front of Sorenson’s vehicle, looked at him, "jogged in place a second or two" in front of his vehicle and then continued northbound. Sorenson proceeded to the stop sign and then looked to his left and saw Guernsey on the ground.

Capulin was driving a GMC pickup truck northbound on North Davis Road. She got into the left turn pocket to turn left into the driveway into Westridge Shopping Center. The left turn pocket had no signal or stop sign. Capulin was familiar with the intersection because she had been going to the Costco in the shopping center at least monthly for more than a decade. She had exited the driveway "hundreds of times." Capulin brought her truck to a stop because there was southbound traffic. After the southbound traffic passed, several vehicles exited the driveway by making right turns onto North Davis Road. Her view of the sidewalk was blocked because there were vehicles exiting the driveway that had pulled up to see whether southbound traffic was coming. Before Capulin turned, she saw the pink concrete, which she considered to be one of the "walkways or crosswalks" because she had "always seen people walk on that." She did not see any painted crosswalk lines, but she "knew there possibly had been a crosswalk there prior" where the "faded lines" were. After waiting for a southbound "straggler" vehicle to pass, Capulin looked to her left, looked to her right, and then proceeded to make her left turn. As she turned, she was looking ahead to the "pink crosswalk." The next thing she saw was "something flying from my left," which was Guernsey. Guernsey was already in the crosswalk when Capulin began her left turn. Capulin felt a "thud" against her truck, and her truck "rolled forward" for "a few seconds" before she saw Guernsey lying there and stopped her truck.

Guernsey suffered a "severe traumatic brain injury," numerous orthopedic injuries, a collapsed lung, a lacerated liver, and other injuries. She was in a coma for a month, and she will require 24-hour care for the rest of her life. Guernsey is primarily wheelchair-bound and has only a limited ability to communicate.

II. Procedural Background

The only cause of action against the City that was submitted to the jury was Guernsey’s third cause of action for a dangerous condition of public property. In her opening statement, Guernsey asserted that the City "created this dangerous condition by failing to maintain the crosswalk." The City admitted in its opening statement that "[t]he crosswalk lines are faded." Capulin’s trial counsel asserted in opening statement that the intersection was "confusing" because of "the pink," and that "the pink," the bushes, and the stop sign location could have "played a role" in the accident.

The causes of the accident were hotly contested at trial. Guernsey’s experts identified several factors that could have contributed to the accident. The six-inch-wide "A-pillar" in Capulin’s truck created a blind spot that obstructed Capulin’s vision of objects to the left of her truck. Due to the bushes, a vehicle exiting from the driveway would have to move forward from the stop sign into the crosswalk to see whether there was southbound traffic coming. The faded crosswalk created different expectations for a pedestrian than for a driver. While a pedestrian would reasonably expect the crosswalk to be a "safe zone" once she had entered it, the absence of plainly visible crosswalk markings would cause a driver’s attention to be drawn to the visually distinct pink cement area, particularly since that is where the stop sign required vehicles to stop. Thus, the "completely faded" crosswalk "created a very confusing visual environment" for "left-turning vehicles." In contrast, had there been a clearly visible "marked crosswalk," it would have created a "visual cue" for a driver to watch for pedestrians in the crosswalk.

After Guernsey’s case-in-chief, the court denied the City’s motion for nonsuit on the dangerous condition cause of action, but it noted what it perceived to be weaknesses in Guernsey’s case on that cause of action. The City’s experts testified that the crosswalk markings were not responsible for the accident. In their view, the presence or absence of crosswalk markings would not influence the accident rate at an intersection. However, "[i]f drivers don't see a crosswalk and have no idea there’s a possible crossing there, then, yes, drivers may be less responsive to pedestrians." A City expert asserted that this intersection did not need a "marked crosswalk" and crosswalk lines would be "very useless" to a driver because a driver would be able to see only a small part of the painted lines.³ He conceded that a car would have to pull up into the crosswalk in order to see around the...