Joyce v. Simi Valley Unified School Dist.

• Decision Date: 08 July 2003
• Docket Number: No. B154365.,B154365.
• Citation: 110 Cal.App.4th 292,1 Cal.Rptr.3d 712
• Court: California Court of Appeals Court of Appeals
• Parties: Jennifer JOYCE, Plaintiff and Respondent, v. SIMI VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

1 Cal.Rptr.3d 712

110 Cal.App.4th 292

Jennifer JOYCE, Plaintiff and Respondent, v. SIMI VALLEY UNIFIED SCHOOL DISTRICT, Defendant and Appellant.

No. B154365.

Court of Appeal, Second District, Division 6.

July 8, 2003.

Rehearing Denied August 4, 2003.

Review Denied September 17, 2003.

Bruce Alan Finck, Ventura, and Susan B. Gans-Smith; Benton, Orr, Duval & Buckingham, for Simi Valley Unified School District, Appellant.

Greg A. Coates, San Luis Obispo; Cumberland, Coates & Duenow, Amicus Curiae, on behalf of Simi Valley Unified School District, Defendant and Appellant.

Gary A. Dordick, Esq., Beverly Hills, Law Offices of Gary A. Dordick, for Plaintiff and Respondent.

YEGAN, J.

In this, the fourth appeal arising from a serious personal injury action, Simi Valley Unified School District (District) appeals from a $2,887,022.90 judgment entered against it after the jury found that an open school yard gate, constructed next to a dangerous intersection, constituted a dangerous condition of public property. (Gov. Code, §§ 830, subd. (a); 835.) District launches a plethora of unsuccessful claims. We affirm and hopefully put an end to this litigation.

Facts and Procedural History

On May 11, 1989, then 13-year-old Jennifer Joyce was struck in a marked cross-walk at Medina and Sequoia Avenues in the City of Simi Valley. Jennifer was on her way to Sequoia Junior High School. The crosswalk had no signals and crossed a busy four-lane street. It allowed children access to the adjacent school through an open school yard gate.

A motorist, Karen Smith, struck Jennifer in the No. one southbound lane of Sequoia Avenue. Jennifer was thrown 40 feet, resulting in severe head injuries.

After the motorist settled for $50,000, Jennifer sued District and the City of Simi Valley (City). The first amended complaint alleged that prior accidents and "near misses" had occurred at the subject crosswalk, that the open school yard gate encouraged students to use the crosswalk, and that District failed to warn about the dangerous intersection or direct students to use the signaled crosswalk near the front of the school.

First Appeal: The Demurrer

District demurred on the ground that the open gate was not a dangerous condition of public property within the meaning of Government Code section 835. The trial court sustained the demurrer without leave to amend. We held that the open school yard gate could be a dangerous condition if it encouraged students to cross a dangerous intersection next to the school (B053453).

First Trial: Jury Instruction Error

In the first trial, the trial court instructed that District was not liable unless the crosswalk, which was owned and maintained by City, had a physical defect. The jury found for City and District. We affirmed as to City. We reversed as to District on instructional error because District's duty of care did not rise or fall on whether the crosswalk had a physical defect.

Second Trial: Attorney Misconduct

The jury in the second trial found District at fault and awarded $2.75 million damages, resulting in a $1,947 million judgment against District. District was granted a new trial on the ground of attorney misconduct. We affirmed in an unpublished opinion. (B115491.)

Third Trial

At the third trial, the school principal, Franklin Finch, testified that he ordered a hole cut in the fence shortly after the school opened in 1970. The fence opening was built next to the crosswalk to encourage students to cross at the Medina-Sequoia intersection. Finch did not consult an architect, engineer, or traffic safety expert before cutting the hole.

Harry Krueper, Jr., a traffic engineer, testified: "The opening in the fence ... was a focal point or funnel point ... for school children ... to gain access to the school.... [I]t concentrated the pedestrian flow into one area where you were crossing a wide roadway [Sequoia Avenue], a 64-foot wide, roadway that had, I would call, moderate to high speeds." Because the T-shaped intersection restricted the line of sight of motorists, it had the potential of hiding pedestrians using the crosswalk. As the area grew, Sequoia Avenue became a secondary highway with a traffic volume of more than 15,000 vehicles per day. Less than 3 percent of the motorists observed the posted speed limit. District's expert, Weston Pringle, agreed that speeders "would cause [an] unreasonable risk of harm for the kids."

Before Jennifer was struck in the crosswalk, parents and District employees complained about the intersection. Joy Azzinaro, a school playground aide, heard screeching brakes and saw near misses almost every day. She notified school officials but no corrective action was taken.

Joyce Smith, a school bus driver, saw motorists speed through the intersection and complained about near-miss accidents. Smith testified that the crosswalk was hard to see because it was "right after the top of the crest, right on top of it. So you don't actually see the striping where the actual crosswalk is."

Several months before Jennifer was injured, City conducted a traffic study and determined that 85 percent of the motorists drove 49 miles per hour on Sequoia Avenue. The posted speed limit was 35 miles per hour when children were not present and 25 miles per hour when children were present. (Veh.Code, § 22352, subd. (a)(2)(B).) City raised the speed limit to 40 miles per hour when children were not present.

Carol Joy, president of the Sequoia Junior High School Booster Club, was concerned about the speed increase and conducted meetings on the perceived traffic hazard. Finch and other school officials attended the meetings. A traffic safety expert from the police department spoke at one of the meetings and recommended that students cross at the Cochran-Sequoia signal near the front of the school.

Finch was concerned about speeders and appeared before the city council six or eight times. More than 1,200 students entered and left the school each day. When Finch learned about the proposed speed increase, City told him to direct the students to cross up the street at the traffic light.

Finch claimed that his "responsibility 'ended' at the fence lines" and that "I d[o] not take my direction from the city council." He told the Booster Club that he was not closing the school yard gate. Finch did not discuss the matter with his superiors because "[w]e were not even considering closing it, so why would we discuss it?" Although District stationed personnel at the front of the school to supervise students coming to and leaving school, Finch did not request a monitor for the Medina-Sequoia crosswalk.

The jury, by special verdict, found that the open school yard gate was a dangerous condition and that District did not take reasonable action to protect against the risk of injury. (Gov.Code, §§ 835; 835.4, subd. (a).) The jury apportioned 10 percent liability to District, 3 percent liability to Jennifer, 75 percent liability to the driver (Karen Smith), and 12 percent liability to City. Jennifer was awarded $2,610,848.45 economic damages and $3,750,000 noneconomic damages.

District unsuccessfully moved for new trial and judgment notwithstanding the verdict. The trial court modified the judgment to reflect the $50,000 settlement with the driver (Code Civ. Proc, § 877) and denied a motion to deduct collateral source payments. (Gov.Code, § 985.) A net judgment in the amount of $2,887,022.90 plus costs was entered against District.

Dangerous Condition of Public Property

District contends that the open school yard gate was not a dangerous condition of public property. The argument is based on the theory that District has immunity as a matter of law because the injury occurred off school property.

Government Code section 830, subdivision (a) provides that a "dangerous condition" is "a condition of property that creates a substantial ... 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." (Emphasis added.)¹ The California Law Revision Commission comments to section 830 state: "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 ... 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." (Cal. Law Revision Com. com, 32 West's Ann. Gov.Code (1995 ed.) foil. § 830, p. 299.)

Pursuant to sections 830 and 835, a public entity may have a duty to protect against a risk of harm on adjacent property.² (E.g., Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841, 206 Cal.Rptr. 136, 686 P.2d 656 [sign next to intersection obstructed view].) For example, in Branzel v. City of Concord (1966) 247 Cal.App.2d 68, 75, 55 Cal.Rptr. 167, a city model plane field was found to be a dangerous condition of public property because nearby electrical lines exposed those using the field to a substantial risk of injury. "While the City did not maintain or control the power lines, it did maintain the flying field in a location so close to them that in the light of the known use of the field the involvement of the field with the lines could be reasonably anticipated." (Ibid.)

In the first appeal, we said that "[t]here is a difference between failing to take action to influence or affect a danger and encouraging students to expose themselves to a danger." (B053453.) Although District did not control the crosswalk, it did control whether an opening in the fence should be made. The open gate was built next to the crosswalk to encourage students to cross at an uncontrolled intersection.³ It diverted children from a safer, signal-controlled intersection less than 500 feet away. We concluded that a reasonable trier of fact could find that the open gate was a...