Levine v. City of Los Angeles

• Decision Date: 28 March 1977
• Citation: 137 Cal.Rptr. 512,68 Cal.App.3d 481
• Court: California Court of Appeals Court of Appeals
• Parties: Edward LEVINE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, a Municipal Corporation, Defendant and Appellant. Civ. 49136.

Page 512

137 Cal.Rptr. 512

68 Cal.App.3d 481

Edward LEVINE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, a Municipal Corporation, Defendant and Appellant.

Civ. 49136.

Court of Appeal, Second District, Division 1, California.

March 28, 1977.

Hearing Denied May 26, 1977.

Burt Pines, City Atty., John T. Neville, Asst. City Atty., and Michael K. Fox, Deputy City Atty., for defendant and appellant.

Green, Royce & Seaman, George Kingsley, Beverly Hills, and Al Schallau, Westchester, for plaintiff and respondent.

THOMPSON, Associate Justice.

The case at bench raises the issue of the applicability of the doctrine of comparative negligence enunciated in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, to government tort liability. We conclude that the Li rule is applicable so that a plaintiff's contributory negligence is not a total bar to his recovery in a suit under the Tort Claims Act. We conclude also that City's other contentions on appeal lack substance and discuss them in the appendix to this opinion to avoid distraction from the portion which merits publication.

FACTS

Woodley Avenue is a north-south street in the San Fernando Valley. In 1953, Woodley was designed in the area from Victory Boulevard to Haynes Street in the configuration of a four-lane road but with the middle two lanes unpaved. On the north side of the intersection with Haynes, Woodley narrowed to a two-lane road. As a result, the extension of Woodley north of Haynes was a continuation of the unpaved middle south of Haynes while the easterly lane of Woodley terminated abruptly at the intersection.

The design of Haynes was approved by the City Engineer. It was adopted because property owners on Woodley south of Haynes dedicated land for the construction and paid for the improvement. Although it would have cost only two or three hundred dollars to do so, City did not design the roadway with a graddual narrowing to avoid the trap created by the abrupt termination of the easterly traffic lane. The design was a 'preliminary one' with the expectation that Woodley would be widened north of Haynes as traffic increased and funds became available.

In 1961, the unpaved median strip of Woodley was paved. In 1962, City installed a nonreflecting unlighted sign 310 feet south of Haynes which read 'One Lane.' The only lighting near the intersection consisted of a 'standard overhanging type sodium vapor street light' about 50 feet north of the intersection on the west side of the street. The lighting left the northeast corner of Woodley in the dark. A diagram of the intersection follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By 1971, traffic in the area had increased 200 to 300 percent from 1953. The general area had changed from one solely of single family residences to one in which there were multiple unit dwellings and a commercial area immediately to the north of the intersection.

At about 7 p.m. on November 17, 1971, plaintiff drove his motorcycle north on Woodley from Victory Boulevard. The 'One Lane' sign being nonreflective and unlighted and obscured by trees, plaintiff drove his cycle at 20 to 25 miles per hour in the easterly lane of Woodley and into the intersection with Haynes. Unable to negotiate the change from the easterly paved lane south of Haynes to the paved portion of Woodley on the north, plaintiff struck a four to six inch raised parking area also under the control of City. His motorcycle became airborne, throwing plaintiff and causing injury to him.

Proceedings at Trial

Plaintiff sued City for damage caused by his injuries. City asserted the defenses of design immunity and contributory negligence. The trial court held against City on the issue of design immunity and permitted the case to go to the jury. Arguing that it was relevant to the issue of lack of notice to it of a dangerous condition, the City offered evidence to establish that records of the Street Maintenance Department showed no complaints with respect to the sudden narrowing of Woodley in the three years preceding the accident, and that records of the Los Angeles Police Department for the five years preceding the injury showed no traffic accidents related to the northeast corner. The trial court barred the evidence.

The jury was instructed on governmental liability for negligent creation of a dangerous condition and failure to correct a dangerous

condition after notice. It found for plaintiff, determined his damages to be in the amount of $22,946.03 and allocated fault 16 percent to plaintiff and 84 percent to City. The trial court entered its judgment accordingly, awarding plaintiff 84 percent of the damage suffered.

Contentions

In this appeal, City contends: (1) plaintiff is barred from recovery by his contributory negligence because the doctrine of comparative negligence is not applicable to government tort liability; (2) the trial court erred in ruling that the 'design immunity' of Government Code section 830.6 is inapplicable in the case at bench; (3) there is a lack of substantial evidence that City had notice of the dangerous condition; and (4) the trial court erroneously barred the evidence offered by City to show that its records did not include complaints or accidents relating to the northeast corner of the intersection of Woodley and Haynes.

Comparative Negligence

City contends that the trial court erred in applying the doctrine of comparative negligence. It argues that: (1) by reason of Government Code section 815 it is immune from liability except as otherwise provided by statute; (2) hence, section 815 eliminates common law governmental liability; and (3) the rule of comparative negligence as adopted in Li v. Yellow Cab Co. is not statutory but is expressed as an outgrowth of a common law principle declared in Civil Code section 1714.

City's argument has a surface appeal. Its analysis of the jurisprudential underpinning of Li is accurate. (Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 821--822, 119 Cal.Rptr. 858, 532 P.2d 1226.) The Legislature has declared a policy limiting to legislatively specified situations the shift of tort related loss from the individual to governmental entity. (Gov.Code, § 815; see also Legislative Com. comment to that section, Deering Gov.Code Ann., p. 117.)

Whatever the appeal of the City's argument, compelling precedent dictates a result to the contrary.

Government Code section 815 does state that 'Except as otherwise provided by statute: ( ) (a) A public entity is not liable (in tort) . . ..' But the phrase as 'provided by statute' is given its broadest possible meaning by our Supreme Court. It is not interpreted to mean that public entities are liable in tort only when the Legislature has enacted a statute imposing liability which on its face is applicable to public bodies. Rather, a liability is deemed 'provided by statute' if a statute defines the tort in general terms. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 933, 101 Cal.Rptr. 568, 496 P.2d 480.)

A statute meets the Supreme Court's test although it is declaratory of the common law. Thus the high court held in Nestle, supra, that a public entity is liable for nuisance because nuisance is defined in Civil Code Section 3479. That section derives from the Field Code enacted in California in 1872 which is also the derivation of Civil Code section 1714, the statute which concerned the Supreme Court in Li. The definition of nuisance which is included in section 3479 is declaratory of the common law in the same manner as the rule of contributory negligence which is stated in section 1714.

Nestle, by finding public entity liability for nuisance because nuisance is defined in Civil Code section 3479, holds that a statute may impose public entity tort liability although the statute is merely declaratory of the common law. (See Comment 61 Cal.L.Rev. 273, 648--656.) Nestle necessarily implies that public entity tort liability must be measured by judicially declared modifications in the statute.

We thus conclude that the rule of Li v. Yellow Cab Co. applies to government tort liability founded in negligence. Hence, the public entity may not rely upon the defense of contributory negligence as a total bar to liability.

We conclude also that City's other contentions are not supported by...