Morris v. State of California

• Decision Date: 28 February 1979
• Citation: 153 Cal.Rptr. 117,89 Cal.App.3d 962
• Court: California Court of Appeals Court of Appeals
• Parties: Marian MORRIS et al., Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent. Civ. 53778.

Page 117

153 Cal.Rptr. 117

89 Cal.App.3d 962

Marian MORRIS et al., Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent.

Civ. 53778.

Court of Appeal, Second District, Division 3, California.

Feb. 28, 1979.

Moriarity & Tepper, John L. Moriarity, Van Nuys, and Gerald H. B. Kane, Jr., Redondo Beach, for plaintiffs and appellants.

Harry S. Fenton, Chief Counsel, Sacramento, Joseph A. Montoya, Robert L. Meyer, Robert W. Vidor and Roland L. Coleman, Los Angeles, for defendant and respondent.

COBEY, Acting Presiding Justice.

Plaintiffs, Marian and James Earl Morris, husband and wife, appeal from a judgment of dismissal of their personal injury action against the State of California made and entered following the sustaining, without leave to amend, of the state's general demurrer to those causes of action in plaintiffs' second amended complaint applicable to the state. ¹

In this pleading plaintiffs alleged, among other things, that on or about September 6, 1975, at approximately 11:30 p. m., on the state's Golden State Freeway between Peoria and Lankershim in the City of Los Angeles, ² a 1973 Lincoln Continental, owned and operated negligently by defendant, Ruby MacDonald, came through a badly damaged stretch of the freeway's median barrier between the lines of traffic moving in opposite directions and collided with a 1972 Dodge to its damage, owned and operated with due care by plaintiff, James Earl Morris, and also occupied by plaintiff, Marian Morris, who was severely injured in the collision. Plaintiffs further alleged that at the site of the collision the median barrier consisted only of two wire ropes hanging limply on the ground for many yards because of the damage the barrier had sustained in a previous accident which defendant, State Department of Transportation, had failed to repair, notwithstanding presumed notice thereof from the reports of the California Highway Patrol and possibly from its own maintenance crews then working in the area of the collision. Plaintiffs finally alleged that this unrepaired gap in the median barrier constituted a dangerous condition of the freeway which proximately caused (at least in part) the collision and the injuries and damages resulting therefrom to plaintiffs and to their Dodge.

Governmental monetary liability in tort in this state is exclusively statutory in origin. (See Gov.Code, §§ 814, 815, subd (a)) and the legis. committee com. to § 815, subd. (a), Deerings Ann.Gov.Code (1973 ed.) p. 117; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809, 75 Cal.Rptr. 240.) ³ Generally speaking, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; and (4) 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. (§ 835.) ⁴

A public entity includes the state. (§ 811.2.) "Dangerous condition" means a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (§ 830, subd. (a).) "Protect against" includes, among other things, repairing, remedying, or correcting a dangerous condition. (§ 830, subd. (b).)

According to section 835.2, a public entity had actual notice of a dangerous condition within the meaning of section 835, subdivision (b), if it had actual knowledge of the existence of the condition and knows, or should have known, of its dangerous character. According to the same source, a public entity had corresponding constructive notice of a dangerous condition if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

The state's position in this case is that "mere disrepair of a median barrier does not constitute a dangerous condition of public property." We disagree with respect to the median barrier here involved, which was located on a high speed, heavily traveled freeway. Its obvious function was to protect motorists on the freeway from the intrusion into their lanes of vehicles crossing the median out of control whether by reason of mechanical or tire failures or other causes unrelated to negligence or by reason of the negligence of their drivers and owners. It is undoubtedly true that a much greater probability obtains for the latter type of accident than for the former and that if only the latter type of accident could occur, the state's disrepair of the median barrier would not be an actionable dangerous condition because such a condition is defined in the already mentioned section 830, subdivision (a), as that creating a substantial risk of injury when public property (here the freeway) is used with "due care" in a reasonably foreseeable manner. (See Cal.Law Revision Com. com. to this section, Deering's Ann.Gov.Code (1973 ed.) p. 181; Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 702-704, 57 Cal.Rptr. 639; Murrell v. State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 271-272, 120 Cal.Rptr. 812, fn. 7; Van Alstyne, Cal. Governmental Tort Liability (Cont.Ed.Bar 1964) § 6.14, pp. 194-195....