Mittenhuber v. City of Redondo Beach

• Decision Date: 19 April 1983
• Court: California Court of Appeals Court of Appeals
• Parties: Brian MITTENHUBER, a minor By Carol MITTENHUBER, his Guardian Ad Litem, Plaintiff and Appellant, v. Ramon Morales HERRERA, Aurelia Herrera, City of Redondo Beach, a Municipal Corporation, State of California, Defendants and Respondents. Civ. 66923.

Page 694

190 Cal.Rptr. 694

142 Cal.App.3d 1

Brian MITTENHUBER, a minor By Carol MITTENHUBER, his Guardian Ad Litem, Plaintiff and Appellant, v. Ramon Morales HERRERA, Aurelia Herrera, City of Redondo Beach, a Municipal Corporation, State of California, Defendants and Respondents.

Civ. 66923.

Court of Appeal, Second District, Division 4, California.

April 19, 1983.

Spector, Buter & Cone and Michael A. Hoberman and Allan E. Cone, Los Angeles, for plaintiff and appellant.

Law Offices of George H. Ellis and John M. Raders, Los Angeles, for defendant and respondent, City of Redondo Beach.

WILLETT, ^* Associate Justice.

The plaintiff appeals from a judgment entered in favor of defendant City of Redondo Beach following the sustaining, without leave to amend, of defendant's demurrer to plaintiff's third amended complaint for damages.

On March 1, 1979 plaintiff, a six-year-old boy, was involved in a bicycle-automobile accident which occurred at the intersection of Voorhees Avenue and Phelan Avenue, both public streets within the City of Redondo Beach. On privately owned property situated on the northeast corner of the intersection, a wall and fence had been constructed which impaired the visibility of traffic approaching the intersection. Phelan Avenue runs north-south and is not controlled by any signal or stop sign as it crosses Voorhees Avenue. Voorhees Avenue runs east-west and is controlled by stop signs for traffic eastbound and westbound. Plaintiff was operating a bicycle westbound on Voorhees Avenue approaching Phelan Avenue. At about the same time, defendant Ramon Herrera was operating a Volkswagen vehicle southbound on Phelan approaching Voorhees Avenue. The bicycle and Volkswagen collided within the intersection and plaintiff sustained injuries.

Plaintiff claims defendant City of Redondo Beach (City) is liable for the injuries based upon the existence of a "dangerous condition" at the intersection. Plaintiff sets forth ten factors and circumstances to support his contention that the intersection was in a dangerous condition. The ten factors set forth in plaintiff's third amended complaint are as follows:

"(1) Persons driving motor vehicles southbound on Phelan approaching its intersection with Voorhees could not see children on bicycles approaching the intersection from the east on Voorhees Avenue;

"(2) Bicyclists westbound on Voorhees approaching the intersection could not see motor vehicles approaching the intersection from the north on Phelan;

"(3) Phelan was heavily used as a through thoroughfare;

"(4) Vehicles on Phelan approaching the intersection from the north travel downhill, often resulting in excessive speed;

"(5) Numerous children normally rode bicycles in the neighborhood and westbound on Voorhees Avenue through said intersection;

"(6) Children on bicycles approaching the intersection from the east travel downhill, often resulting in excessive speed and making it extremely difficult for them to stop quickly;

"(7) Defendants, and each of them, installed stop signs on Voorhees Avenue in such a manner as to invite reliance on them by motorists traveling on Phelan; ...

"(8) The wall and fence at 2501 Voorhees Avenue more particularly described hereinabove prevented motorists southbound on Phelan, approaching said intersection, from seeing bicyclists approaching said intersection westbound on Voorhees Avenue until after such motorists were committed to said intersection;

"(9) The wall and fence at 2501 Voorhees Avenue, more particularly described hereinabove, prevented bicyclists westbound on Voorhees Avenue, approaching said intersection, from seeing motorists approaching said intersection southbound on Phelan until after such bicyclists were committed to said intersection;

"(10) The intersection had inadequate markings, traffic controls or warnings."

The City contends that the complaint fails to establish, as a matter of law, the existence of a "dangerous condition" at the intersection. We agree.

A public entity may be liable for injury caused by a dangerous condition on its property. To state a cause of action under the California Tort Claims Act of 1963 (Gov.Code §§ 830-840.6), based on a dangerous condition of public property, the complaint must satisfy Government Code section 835. That section provides:

"Except as provided by 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 under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

Because recovery is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809, 75 Cal.Rptr. 240; Vedder v. County of Imperial (1974) 36 Cal.App.3d 654, 659, 111 Cal.Rptr. 728; County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1025, 144 Cal.Rptr. 296; Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1980) § 3.72.)

A "dangerous condition" as defined by Government Code section 830 "means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) 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." The existence of a dangerous condition is usually a question of fact and may be resolved as a question of law only if reasonable minds can come to but one conclusion. (Gov.Code § 830.2; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 745, 94 Cal.Rptr. 175; Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183, 258 P.2d 834; Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)

In order to determine whether plaintiff set forth facts sufficiently detailed and specific to support a dangerous condition allegation, it is necessary to examine the ten factors and circumstances on which plaintiff relies.

Factors one and two state that "persons driving motor vehicles southbound on Phelan approaching its intersection with Voorhees could not see children on bicycles approaching the intersection from the east on Voorhees Avenue" and that "[b]icyclists westbound on Voorhees approaching intersection could not see motor vehicles approaching the intersection from the north on Phelan."

These factors may be summarized as concluding that the subject intersection was a blind intersection. A city is under no affirmative duty to erect stop signs at such an intersection. Government Code section 830.4 provides:

"A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code."

Additionally, Government Code section 830.8 provides in pertinent part as follows:

"Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code."

Government Code section 830.4 was a codification of Perry v. City of Santa Monica (1955) 130 Cal.App.2d 370, 279 P.2d 92. In Perry, the complaint described the intersection as follows: "At the time of the accident the intersection of Euclid and Michigan Avenue was in a dangerous and defective condition. It was so laid out, constructed, and maintained that a 'vehicle' traveling northerly on Euclid could not see traffic approaching from the west on Michigan without first entering the intersection and placing 'itself' in a hazardous position and a 'vehicle' traveling westerly on Michigan could not see traffic approaching in a northerly direction on Euclid without first entering the intersection. It was a heavily traveled blind intersection and it did not have traffic signals, stop signs, semaphores, or other traffic control devices...." (Id. p. 371, 279 P.2d 92.)

In upholding the sustaining of the demurrer by the trial court, the Court of Appeal stated as follows: "It has been repeatedly held that a city is not an insurer of the safety of travelers; it is required only to exercise ordinary care to maintain its streets in a reasonably safe condition for those using them." (Id. at p. 372, 279 P.2d 92.)

"Plaintiffs, whose burden it is to show an actionable wrong, have cited no authority whatever where, under facts and circumstances at all comparable or similar to those alleged in their complaint, a municipality or any other local agency has been held liable. To hold that the city had the affirmative duty to erect stop signs at the intersection in question would unduly extend the scope of the Public Liability Law and go far toward establishing the rule that a municipality is an insurer. The trial court properly sustained the demurrer." (Perry v. City of Santa Monica, supra, 130 Cal.App.2d at p. 375, 279 P.2d 92.)

Plaintiff's allegations regarding the inability of persons operating motor vehicles and bicycles to see each other while approaching the intersection, are not supportive of the conclusion that the intersection was in a dangerous...