Pekarek v. City of San Diego

• Decision Date: 06 December 1994
• Docket Number: No. D018228,D018228
• Citation: 36 Cal.Rptr.2d 22,30 Cal.App.4th 909
• Court: California Court of Appeals Court of Appeals
• Parties: Kaila Sky PEKAREK et al., Plaintiffs, Appellants and Cross-Defendants, v. CITY OF SAN DIEGO, Defendant, Respondent and Cross-Complainant.

Page 22

36 Cal.Rptr.2d 22

30 Cal.App.4th 909

Kaila Sky PEKAREK et al., Plaintiffs, Appellants and Cross-Defendants, v. CITY OF SAN DIEGO, Defendant, Respondent and Cross-Complainant.

No. D018228.

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

Dec. 6, 1994.

Rehearing Denied Dec. 23, 1994.

Review Denied Feb. 23, 1995.

Castillo and Guevara, William J. Phippard, Roberta R. Sistos and Susana M. Mahady, San Diego, for plaintiffs, appellants and cross-defendants.

John W. Witt, City Atty., Eugene Gordon, Chief Deputy City Atty., and Carol S. Leimbach, Deputy City Atty., for defendant, respondent and cross-complainant.

BENKE, Associate Justice.

The critical question presented on this appeal is whether the defendant city could have reduced the risk of injury to the plaintiffs by altering the physical characteristics of a street the city owns. Because the plaintiffs have not suggested any such alteration, we affirm the summary judgment entered in favor of the city.

FACTUAL BACKGROUND

The circumstances which give rise to this appeal are not in dispute. On June 1, 1990, Kaila Pekarek was five years old. On that day she crossed the 6600 block of Springfield Street in San Diego with her seven-year-old sister Lakshmi. Kaila and Lakshmi were crossing the street so that they could get ice-cream from an ice-cream truck operated by Nghiep Buu Truong. After Kaila bought her ice-cream she started running back across Springfield Street. Lakshmi saw a van coming and tried to pull Kaila out of the way. Lakshmi was only partially successful. Because Truong's ice-cream truck obstructed her view, the driver of the van, Lois Louise Pischinger, did not see Kaila. Pischinger's van struck Kaila, crushing her leg and breaking her jaw. Because of the severity of the injury, Kaila's leg was amputated.

TRIAL COURT PROCEEDINGS

On May 31, 1991, Kaila and Lakshmi filed a complaint against Truong, Pischinger and defendant and respondent City of San Diego (city). The complaint alleged Truong was negligent in operating his ice-cream truck, that Pischinger was driving negligently and that the city, which owns the 6600 block of Springfield Street, was liable because the street was maintained in a dangerous condition. The complaint also alleged the city was liable for creating a nuisance.

Kaila and Lakshmi eventually settled their claims against Truong and Pischinger. The city then moved for summary judgment. The city argued Kaila and Lakshmi could not show any defect in the design, construction or maintenance of Springfield Street and that a city ordinance ¹ which permitted ice-cream vendors to operate on its streets immunized the city from nuisance liability.

In opposition to the motion Kaila and Lakshmi argued the city created a dangerous condition and a nuisance by permitting ice-cream trucks to operate on city streets. They submitted the declaration of a traffic consultant who, among other matters, stated that between May 1990 and November 1991 the city's traffic and engineering department recorded 30 so-called "ice-cream truck" injuries to children under the age of 14. Although none of the 30 accidents were in the 6600 block of Springfield Street, according to the consultant, most of the injuries occurred in a manner similar to the accident which injured Kaila.

In addition the plaintiffs submitted a number of national transportation studies which identified ice-cream truck accidents as a particular class of pedestrian injuries. The studies suggested adoption of an ordinance which would: require drivers to stop before passing ice-cream trucks; require ice-cream trucks to be equipped with visual warning devices; and restrict the location where ice-cream trucks may operate to low speed and low traffic volume streets.

The trial court granted the city's motion and entered judgment against Kaila and Lakshmi. They filed a timely notice of appeal.

ISSUES ON APPEAL

As they did in the trial court, on appeal Kaila and Lakshmi argue that in permitting operation of ice-cream trucks on its streets the city created a dangerous condition and a nuisance.

DISCUSSION

I

"We begin by restating familiar principles which govern our review following entry of summary judgment: 'The purpose of a summary judgment motion is to determine if there are any triable issues of material fact, or whether the moving party is entitled to judgment as a matter of law. [Citations.] The summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. [Citation.] The affidavits of the moving party are strictly construed, while those of the party opposing the motion are liberally construed. [Citations.] If the affidavits of the party opposing the motion contain factual averments within the general area of the issues framed by the pleadings, they are sufficient to make out a prima facie case. [Citation.] Any doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. [Citations.]' [Citation]" (Sachs v. Exxon Co., U.S.A. (1992) 9 Cal.App.4th 1491, 1496, 12 Cal.Rptr.2d 237, quoting Cascade Gardens Homeowners Assn. v. McKellar & Associates (1987) 194 Cal.App.3d 1252, 1255-1256, 240 Cal.Rptr. 113.) With these principles in mind, we turn to the parties' substantive contentions.

II

GOVERNMENT CODE SECTION 830² defines "dangerous condition" as "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." ³ In interpreting section 830 "courts have consistently refused to characterize harmful third party conduct as a dangerous condition--absent some concurrent contributing defect in the property itself." (Hayes v. State of California (1974) 11 Cal.3d 469, 472, 113 Cal.Rptr. 599, 521 P.2d 855 (Hayes ).)

In Hayes the plaintiffs were beaten by unknown persons while sleeping on a public beach one evening. They argued the beach was dangerous because the state permitted it to be used at all hours and failed to warn users about the possibility of criminal conduct. The court in Hayes rejected this argument and stated: "to the extent warning of past criminal conduct might serve a beneficial purpose, it--unlike cautioning against a specific hazard in the use of property--admonishes against any use of the property whatever, thus effectively closing the area. But determining and regulating the use of public property are better left to legislative and administrative bodies, rather than to the judiciary." (Hayes v. State of California, supra, 11 Cal.3d at p. 473, 113 Cal.Rptr. 599, 521 P.2d 855.)

The central teaching of Hayes, that a plaintiff must demonstrate that some characteristic of a governmental entity's property contributed to his injury, has been consistently reaffirmed. For instance following Hayes the court decided Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 159 Cal.Rptr. 835, 602 P.2d 755 (Ducey ). In Ducey the plaintiffs were injured when a car crossed a freeway median and struck their car. They alleged the freeway was dangerous because it did not have a cross-median barrier. In upholding a verdict in the plaintiffs' favor the court held that the absence of appropriate safeguards could be a dangerous condition and could give rise to liability when, in combination with the negligence of a third party, the condition caused injury. (Ducey, supra, 25 Cal.3d at pp. 715-721, 159 Cal.Rptr. 835, 602 P.2d 755.) "[S]ection 835 specifically provides that when a public entity has actual or constructive notice of a dangerous condition, the entity's liability may be predicated on its failure to take protective measures to safeguard the public from dangers that may not necessarily be of the entity's own creation. This reading of section 835 is confirmed by reference to section 830, subdivision (b), which specifically defines the 'protect against' language of section 835, subdivision (b), to include 'providing safeguards against a dangerous condition.' Thus, the language of the applicable statutes refutes the state's argument that it is under no 'duty' to protect the public against dangers that are not created by physical defects in public property. [Citation.]" (Ducey, supra, 25 Cal.3d at pp. 716-717, 159 Cal.Rptr. 835, 602 P.2d 755, fn. omitted.)

Ducey in turn was followed by Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 812-813, 205 Cal.Rptr. 842, 685 P.2d 1193 (Peterson ). In Peterson the plaintiff was assaulted on a college campus in broad daylight. She alleged the college had notice of similar assaults and that the parking lot where she was assaulted was dangerous because of "thick and untrimmed foliage and trees" which assisted her assailant. In reversing a judgment entered following an order sustaining the college's demurrer, the court found that the college's failure to trim the foliage or warn her of the danger gave rise to a claim under section 830. The court found that students can expect that a college campus "will be free from physical defects and that school authorities will also exercise reasonable care to keep the campus free from conditions which increase the risk of crime." (Id. at p. 813, 205 Cal.Rptr. 842, 685 P.2d 1193, emphasis added.)

In a pair of cases decided by Division Three of the Second District the principles set forth in Hayes, Ducey and Peterson were refined still further. In Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 198 Cal.Rptr. 208 (Swaner ), the plaintiffs were lying on a beach near a parking lot. At around two a.m. they were struck by a vehicle driving on the beach. They argued that the beach was dangerous because there were no barriers...