Seaber v. Hotel Del Coronado

• Decision Date: 02 December 1991
• Docket Number: No. D010834,D010834
• Citation: 1 Cal.App.4th 481,2 Cal.Rptr.2d 405
• Court: California Court of Appeals Court of Appeals
• Parties: Donna SEABER, et al., Plaintiffs and Appellants, v. HOTEL DEL CORONADO, Defendant and Respondent.

Page 405

2 Cal.Rptr.2d 405

1 Cal.App.4th 481

Donna SEABER, et al., Plaintiffs and Appellants, v. HOTEL DEL CORONADO, Defendant and Respondent.

No. D010834.

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

Dec. 2, 1991.

As Modified Dec. 16, 1991.

Robinson, Robinson & Phillips and John D. Rowell, Los Angeles, for plaintiffs and appellants.

Roger A. Geddes, Coronado, for defendant and respondent.

WORK, Acting Presiding Justice.

Donna Seaber, the surviving wife of Harry Seaber, and their three children appeal a summary judgment entered in favor of Hotel Del Coronado (Hotel) on their wrongful death action arising from a pedestrian/vehicular accident which resulted in the death of pedestrian, Harry Seaber. He was killed when he was struck in a marked crosswalk on Orange Avenue, adjacent to the Hotel's property, while using the crosswalk for egress from the Hotel. Relying on Sexton v. Brooks (1952) 39 Cal.2d 153, 245 P.2d 496, they contend the trial court erred in holding the pedestrian crosswalk on Orange Avenue did not provide a special benefit to the Hotel; no alteration in Orange Avenue independently and specially benefitted the Hotel; and, in any event, the Hotel's lack of control over the sidewalk extinguished any obligation it may have had to warn and alternatively it had no feasible method to control traffic or to warn pedestrians. For the reasons which follow, we conclude the trial court properly granted the Hotel's motion for summary judgment. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On February 14, 1987, while leaving the premises of the Hotel, Harry Seaber was killed when he was struck in a marked crosswalk on Orange Avenue, State Highway 75, by a vehicle driven by Kevin Almeida. The crosswalk was located on public property adjacent to the property of the Hotel and was used by business invitees of the Hotel for ingress and egress purposes. At the time of the accident, Seaber was returning to his car which he had parked across the highway from the Hotel in the parking lot of the Glorietta Bay Inn, a lot frequently used by patrons and business invitees of the Hotel.

The crosswalk within which the accident occurred was located on State Highway 75, owned by the State of California, and within the control of Cal Trans which is responsible for making any final decisions as to the location, operation, design, placement, removal and maintenance of such crosswalks. The crosswalk was located just below the crest of a hill, south of the entrance of the Hotel, as State Highway 75 curves slightly to the right for a driver travelling south. To motorists travelling south, the view of the crosswalk was obstructed because of the downward slope of the roadway. The crosswalk was located mid-block on the west side of the street; it was not controlled by a signal; and there were neither signs nor flashing lights to warn approaching motorists they were approaching a crosswalk.

In early 1974, the crosswalk was removed by Cal Trans because of safety concerns. However, by letter dated May 31, 1974, the Hotel president, Carleton Lichty, wrote the Cal Trans District Director, noting the pedestrian crossing had been removed at the Hotel entrance and requesting Cal Trans reinstitute some type of traffic control so as to provide Hotel guests and employees sufficient time to get out of the front entrance and walk across the street. He further expressed dissatisfaction with the use by Hotel guests of a traffic light system located approximately one block to the North, which had been Cal Trans' preferred crossing location. ¹ By letter dated June 13, 1974, Cal Trans advised Lichty it would provide a painted crosswalk which would provide good access to the bus stop, but it still considered the signaled crossing a block to the North was the preferred place for the Hotel to direct its guests, encouraging it to guide pedestrians to that intersection from the Hotel. ² The assistant transportation engineer for Cal Trans responsible for the crosswalk interpreted Lichty's letter as a request to replace the crosswalk which had been removed. He authorized the replacement of the crosswalk at the entrance to the Hotel where it existed at the time of the accident, ³ because it was adjacent to Glorietta Boulevard and provided access to the bus stop on the northeast side of Glorietta Boulevard which was used by Hotel employees. In his affidavit, he explained the replacement was expressly the result of the Hotel's request, since Cal Trans had just removed the crosswalk in that area in the early part of 1974 and believed it was safer for pedestrians to cross at the intersection of State Highway 75 and Dana Avenue to the north. Although Cal Trans advised the Hotel of its decision to reinstall the crosswalk, the Hotel made no objection to that specific remedy to its problem, even though the Hotel was well aware of the dangerous situation precipitated by the particular crosswalk. ⁴

The amended complaint for wrongful death and negligent infliction of emotional distress names the driver (Almeida), the Hotel, City of Coronado, State of California, Cal Trans and several other State governmental entities. Challenging the Seabers' theory that it is legally responsible for the placement of the crosswalk in this dangerous location because it was located there by the State to provide the Hotel with a special benefit, the Hotel moved for summary judgment. In granting the motion, the trial court concluded:

"The request by the Hotel for a pedestrian crossing on the state road next to the Hotel does not create a special benefit to the Hotel. There was no alteration to said road which would independently and specially benefit only the Hotel. Sexton v. Brooks, 39 C.2s 153, 157 .

"However, even if there was a special benefit to the Hotel, the Court finds that the lack of control over the sidewalk extinguishes whatever the duty Hotel may have had to warn pedestrians. The Hotel had no control of traffic and had no feasible method to warn pedestrians. Gray v. American West Airlines, 89 D.A.R. 4190 (Decided March 29, 1989); Donnell v. California Western School of Law (1988), 200 Cal.App.3d 715 ."

STANDARD OF REVIEW

"A summary judgment may be granted only if no material triable issue of fact exists[, as the] moving parties' affidavits must set forth facts entitling them to a judgment as a matter of law." (Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 503, 238 Cal.Rptr. 436; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) "Designed to resolve litigation by avoiding needless trials [citation], the purpose for summary judgment 'is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact' [citation]." (Tollefson v. Roman Catholic Bishop (1990) 219 Cal.App.3d 843, 852, 268 Cal.Rptr. 550, quoting Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Similarly, where there are no triable issues of fact and the parties, contentions involve a question of law, summary judgment is proper. ( Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at p. 503, 238 Cal.Rptr. 436; Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313, 195 Cal.Rptr. 90.) Consequently, the trial court's role in ruling on motions for summary judgment is strictly confined to determining whether material issues of fact exist and not to decide the merits of any of those issues. ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Tollefson v. Roman Catholic Bishop, supra, 219 Cal.App.3d at p. 852, 268 Cal.Rptr. 550.) Mindful it is a drastic procedure which deprives a party of a trial on its merits, summary judgment should be employed with caution to avoid becoming a substitute for trial determination of the facts and merits of a cause. ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) Finally, "[i]n examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953, quoting Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

THE LAW ON LIABILITY OF A LANDOWNER FOR A DANGEROUS CONDITION ON AN ABUTTING PUBLIC STREET OR SIDEWALK

"In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition." (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81, 256 Cal.Rptr. 877; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.) Generally, absent statutory authority to the contrary, a landowner is under no duty to maintain in a safe condition a public street or sidewalk abutting upon his property (Sexton v. Brooks, supra, 39 Cal.2d at p. 157, 245 P.2d 496), or to warn travelers of a dangerous condition not created by him but known to him and not to them (37 Cal.Jur.3d Highways and Streets, § 70, pp. 178-179). However, an abutting landowner has always had an obligation to refrain from affirmative conduct which results in a dangerous condition upon public streets or sidewalks. (Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1592, 272 Cal.Rptr. 544.) ⁵ Moreover, an abutting landowner who has altered an adjacent sidewalk for the benefit of his property apart from its ordinary use for which it was designed, has a duty to employ ordinary care in making such alteration and in maintaining...