Thimon v. City of Newark

• Decision Date: 27 January 2020
• Docket Number: A152093
• Citation: 258 Cal.Rptr.3d 46,44 Cal.App.5th 745
• Court: California Court of Appeals Court of Appeals
• Parties: Destiny THIMON, a Minor, etc., Plaintiff and Appellant, v. CITY OF NEWARK, Defendant and Respondent.

44 Cal.App.5th 745

258 Cal.Rptr.3d 46

Destiny THIMON, a Minor, etc., Plaintiff and Appellant,

v.CITY OF NEWARK, Defendant and Respondent.

A152093

Court of Appeal, First District, Division 2, California.

Filed January 27, 2020

Brady Law Group, Steven J. Brady, San Rafael; and Laura S. Liccardo, for Plaintiff and Appellant.

McDowall Cotter, David S. Rosenbaum, San Mateo, and Jennifer A. Emmaneel, San Jose, for Defendant and Respondent.

STEWART, J.

Destiny Thimon, then 14 years old, was crossing Cherry Street in Newark, California one morning when she was hit by a car driven by Bihn Soudachanh, who did not see her because the sun was in his eyes. Thimon was seriously injured as a result.

Through her guardian ad litem, Thimon sued the City of Newark (Newark), asserting that a variety of alleged defects in the intersection and its surrounds rendered it a dangerous condition that partially caused the accident. Newark filed a motion for summary judgment contending, among other things, that the intersection did not constitute a dangerous condition and that Thimon could not show it was a dangerous condition. The trial court granted summary judgment on these grounds and entered judgment in favor of Newark. Thimon timely appealed. We affirm.¹

BACKGROUND

I.Thimon’s Allegations

Thimon’s second amended complaint, the operative pleading (the complaint), alleges: "On December 6, 2013 at approximately 7:30 in the morning, Destiny Thimon was on her way to school, and reached the corner of Cherry Street and Redeker Place. As Cherry Street at this intersection was not controlled by signals or stop signs, and contained no pedestrian activated signals or lights, [Thimon] waited for traffic to abate before proceeding. After being in the crosswalk approximately 6.22 seconds, she was struck by a vehicle traveling on Cherry Street, was thrown over 50 feet by the impact, and suffered, inter alia , a major head injury

, fracture of her femur, and facial fractures. The operator of the offending vehicle was driving at a rate under the 45 mph posted speed limit but had not seen [Thimon] due to glare from the morning sun."

Under Thimon’s claim against Newark for "Dangerous Condition of Public Property," the complaint further alleges: "Cherry Street at its intersection with Redeker Place is a public street owned and/or controlled by [Newark]. It consists of two lanes for travel in both directions with two left turn pockets, one for entrance into Redeker Place and the other for entrance onto Robertson Avenue." It further alleges that Cherry Street at this intersection lacked "stop signs," "traffic signals," a "blinking yellow arterial to warn drivers of the impending crosswalk" and "pedestrian actuated mechanisms to alert a driver of a pedestrian’s use of the crosswalk." This area "thereby constitutes a dangerous condition of public property," the complaint further alleges, "due to forced use of an unprotected, uncontrolled crosswalk particularly at a time of year and time of day when glare from the morning sun obscures visibility of pedestrians." This condition "created a trap for pedestrians," and Newark "should have ameliorated the hazards presented by its location [more than 4 lanes of width with morning commute traffic traveling at 45 mph with visibility obscured by morning sun] by implementation of, e.g. , warning lights or pedestrian actuated mechanisms."

The complaint also alleges that Newark created the dangerous condition by "failing to continue sidewalk along Cherry Street, placing a crosswalk at that intersection, painting only single white lines, omitting traffic controls on Cherry Street, omitting arterial warning signals, and/or omitting pedestrian actuated signals for use of the crosswalk. Alternatively, the danger existed for a sufficient period of time before the accident to have permitted its employees, in the exercise of due care, to discover and remedy the dangerous condition existing by reason of [these features or lack of features]."²

The complaint further asserts that as a "legal result" of this dangerous condition, Thimon was violently struck by a vehicle traveling below the posted speed limit while she was legally in the crosswalk, was injured and subjected to great mental and physical suffering, was required to obtain health care and rehabilitation, requires attendant care services and may be unable to work in the future or will sustain a loss of earning capacity.

II.Newark’s Summary Judgment Motion

Newark moved for summary judgment, including on the ground that Thimon could not establish a defect in the property constituting a dangerous condition. Thimon opposed summary judgment, including on the ground that Newark had not met its burden of negating the dangerous condition because it had "segregate[d] each aspect of this crosswalk" but failed to "attack[ ] the combination of circumstances which made this marked crosswalk a dangerous condition"; and that the installation of a crosswalk at the Cherry/Redeker intersection created a dangerous condition.

A. The Undisputed Facts

The following facts are undisputed. The intersection where the accident occurred is on a two-way, four-lane (with an additional turning lane in the center) arterial street known as Cherry Street that runs generally northwest-to-southeast (which for ease of description we will refer to as north-south), where it intersects with two streets known as Redeker Place (on the west) and Robertson Avenue (on the east) (which for ease of description we will refer to as the Cherry/Redeker intersection). Cherry, Redeker and Robertson were constructed sometime prior to 1963. Improvements that involved widening the intersection and installing sidewalk on the east side of Cherry were constructed in 1964 and 1981. There was no marked crosswalk at the Cherry/Redeker intersection until 1998, when Newark marked the crosswalk with white lines and installed warning signs on both sides of Cherry approaching the intersection. In 2003, after resurfacing the road, Newark again marked the crosswalk with white lines.

The Cherry/Redeker intersection is controlled by stop signs on Redeker and Robertson, which require vehicles to stop before entering onto Cherry, but there are no stop signs or traffic lights on Cherry itself at this location. At other locations, there are signalized intersections where pedestrians may cross Cherry, but at the Cherry/Redeker intersection there is simply a crosswalk with painted white lines running east-west across Cherry. Besides the painted crosswalk lines, there are signs, two south of the intersection about 140 and 560 feet away and two north of the intersection similar distances away, warning oncoming motorists of the pedestrian crosswalk at the intersection.

In the area of the intersection, Cherry Street is a level roadway with no blind corners or other physical features (such as foliage or elevation variances) that might obscure motorists’ vision of the crosswalk. A pedestrian sidewalk runs along the east side of the street, but generally not on the west (industrial) side. During certain times of year, the light from the rising sun creates a glare that can obscure the vision of motorists traveling southward on Cherry in the vicinity of the intersection at certain times of the morning.

There is heavy motor traffic along Cherry Street. By contrast, there is low pedestrian usage of the Cherry/Redeker intersection. In the 10-year period preceding the accident, there were no reports of motorists on Cherry Street colliding with pedestrians using the crosswalk at the Cherry/Redeker intersection.

On the morning of December 6, 2013, at about 7:30 a.m., Thimon walked from her home to school. Along her route to the Cherry/Redeker intersection were two opportunities to cross Cherry at crosswalks with traffic signals (at Thornton and at Central). There was also an intersection with signals (at Mowry) beyond the Cherry/Redeker intersection in the direction she was walking. Thimon was on the west side of Cherry when she stopped at Redeker to cross Cherry. Traffic on Cherry was still heavy and flowing as she began to cross Cherry in an eastward direction in the crosswalk.

Around this same time, Soudachanh, driving his usual route to work, turned from Central Street right onto Cherry and proceeded southward approaching the Cherry/Redeker intersection. When he pulled out from behind a bus into the left-hand lane, his vision was obscured by the glare of the sun, which he had previously experienced at this location during certain fall and winter months. He put his visor down but was still unable to see anything in front of him. He nonetheless proceeded to drive through the intersection, colliding with Thimon, whom he did not see at any time before he hit her. She was thrown more than 50 feet and suffered serious injuries. Soudachanh violated the Vehicle Code by driving at a speed greater than was reasonable having due regard for visibility on the roadway (id. , § 22350) and failing to yield the right of way to a pedestrian crossing the roadway within any crosswalk at an intersection (id. , § 21950). There is no dispute that his negligent driving was a proximate cause of Thimon’s injury.³

B. Disputed Issues

The parties disputed the condition of the Cherry/Redeker intersection, based mostly on declarations by their respective experts. Newark’s traffic and civil engineering expert opined that the various features of the intersection that Thimon alleged made it dangerous did not increase the risk to pedestrians or were reasonable exercises of engineering judgment. In particular, he opined that the decisions to mark the crosswalk in 1998 and to re-mark it in 2003 were "reasonable exercise[s] of engineering judgment."

Newark’s expert also attached to his declaration a copy of a study by a traffic engineering consulting firm that Newark retained shortly after the collision to evaluate whether installation of traffic signals was warranted under the criteria contained in the...