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Bonanno v CCCTA -- California Supreme Court

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The existence of a dangerous condition is ordinarily a question of fact-resolved here by the jury's express finding that the bus stop was a dangerous condition of CCCTA's property-but it can be decided as a matter of law if reasonable minds can come to only one conclusion. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133.) The statutory language neither precludes nor expressly endorses plaintiff's theory that the bus stop was dangerous because accessing it required crossing a dangerous intersection. The Law Revision Commission comment, however, does endorse that theory: the DeNormandie bus stop may properly be considered dangerous under section 830 in that, in the words of the Law Revision Commission, "a condition on the adjacent property [the crosswalk at an uncontrolled intersection] exposes those using the public property [the bus stop] to a substantial risk of injury." (Cal. Law Revision Com. com., reprinted at 32 West's Ann. Gov. Code, supra, foll. § 830, p. 299.) Because the official comments of the California Law Revision Commission "are declarative of the intent not only of the draftsman of the code but also of the legislators who subsequently enacted it" (People v. Williams (1976) 16 Cal.3d 663, 667-668), the comments are persuasive, albeit not conclusive, evidence of that intent (Conservatorship of Wendland (2001) 26 Cal.4th 519, 542). We must determine, therefore, whether some indication of legislative intent beyond the statutory language and Law Revision Commission comment, or some other principle established in the California cases, negates the jury's finding as a matter of law. After examining the relevant case law, we find no such contrary principle of law.

Most obviously, a dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. (2 Van Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 1999 & 2002 supp.) Dangerous Condition of Public Property, § 12.17, pp. 768-769; see, e.g., Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 120 [street intersection with malfunctioning traffic signals]; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 745-746 [stop sign obscured by roadside plantings].) But public property has also been considered to be in a dangerous condition "because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use." (Van Alstyne, supra, § 12.18, p. 769, italics added.)

That the location of a public improvement or, more broadly, its relationship to its surroundings, may create dangers to users is by no means a novel idea. In Warden v. City of Los Angeles, supra, 13 Cal.3d 297, the public property at issue was a sewage outfall pipe in Santa Monica Bay. Though, as far as our decision reveals, the pipe was not damaged, deteriorated or defective in any way, this court agreed its location, near the water's surface in an area frequented by ships, constituted a dangerous condition: "Indeed the record is clear that the city placed the pipe near the surface although it could have submerged it for safety purposes, as was done with other installations. This created the dangerous condition which invokes liability under section 835, subdivision (a)." (Id. at p. 300.)

More specifically, the Courts of Appeal have, consistent with the Law Revision Commission comment, recognized that hazards present on adjoining property may create a dangerous condition of public property when users of the public property are necessarily exposed to those risks. Thus, in Holmes v. City of Oakland (1968) 260 Cal.App.2d 378 (Holmes), the plaintiff child was hit by a Santa Fe railroad train running on a right-of-way along a city street. The plaintiff alleged the street was in a dangerous condition because of the tracks running along it, which children from the nearby grammar school had to cross on their way home from school. (Id. at p. 381.) The appellate court held that even if the city did not control the operation of trains on the right-of-way, the complaint alleged a cause of action for maintenance of public property in a dangerous condition, under section 835, because "a condition on the adjacent right-of-way exposes those using the public property to a substantial risk of injury." (Id. at p. 389; see id. at pp. 389-390 [quoting and relying on Cal. Law Revision Com. com. to § 830].) The dangerous condition, in other words, was the adjacency of the street and the railroad right-of-way.

Branzel v. City of Concord (1966) 247 Cal.App.2d 68 (Branzel) contains an extensive treatment of the question. A father was electrocuted when his son's model airplane escaped the son's grasp as he was flying it in the city's designated model airplane park; chasing after it, the father caught the plane's guide wire just as it came in contact with uninsulated electrical lines across the street from the park. (Id. at pp. 69-71.) The defendant city contended that, as a matter of law, there was no dangerous or defective condition of its property (the park). The appellate court rejected that claim, holding the jury could find it foreseeable that users of the model airplane field would sometimes lose control of their planes and, in trying to recover them, would be exposed to the danger of the electrical lines. "While the City did not maintain or control the power lines, it did maintain the flying field in a location so close to them that in the light of the known use of the field the involvement of the field with the lines could be reasonably anticipated. It seems to us . . . that the condition of the field can be considered dangerous because the condition of the adjacent power lines exposed those using the field to a substantial risk of injury." (Id. at p. 75; see also Jordan v. City of Long Beach (1971) 17 Cal.App.3d 878, 881-883 (Jordan) [defective pavement with protruding water pipe on private property adjoining public sidewalk was dangerous condition of sidewalk because it exposed sidewalk users to substantial risk of injury]; Dudum v. City of San Mateo (1959) 167 Cal.App.2d 593, 597 [location of stop sign was dangerous condition because it caused sign to be obscured by tree on adjacent private property]; Marsh v. City of Sacramento (1954) 127 Cal.App.2d 721, 724 [sidewalk, not defective in itself, nonetheless could constitute dangerous condition by virtue of the demolition of an adjacent building, which left an eight-foot drop-off at sidewalk's edge]; Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 153 (Bauman) [playground area for small children constituted dangerous condition of public property because of proximity to field used for "hard baseball"].) 3

We therefore reject CCCTA's contention that it cannot be liable for an injury occurring on property (the street) it neither owned nor controlled. CCCTA owned and controlled its own bus stop, and a condition of that property, its physical situation, caused users of the bus stop to be at risk from the immediately adjacent property, just as the model airplane flyers were at risk from the adjacent power lines in Branzel, supra, 247 Cal.App.2d 68; users of the city street were at risk from the adjacent railroad right-of-way in Holmes, supra, 260 Cal.App.2d 378; those walking on the public sidewalk were at risk from the defective pavement and protruding pipe on adjacent private property in Jordan, supra, 17 Cal.App.3d 878; and children using the play area were at risk from the adjacent baseball games in Bauman, supra, 42 Cal.App.2d 144. 4

Nor is it determinative that Bonanno's injury occurred on adjacent County property as she approached the bus stop, rather than while she was awaiting the bus at the stop itself. In the circumstances, that Bonanno was injured trying to access CCCTA's property makes her no less a user of it. If a CCCTA bus stop could be reached only by jumping across an adjacent ditch, CCCTA would logically bear the same liability to a patron who fell into the ditch attempting to reach the stop as to one who fell while waiting at the stop. Several Court of Appeal decisions applying section 835 and its statutory predecessor have, like the present case, involved injuries to users of public property that occurred on adjacent private property. (See Jordan, supra, 17 Cal.App.3d at p. 881 [injury-causing pavement defect located about 12 inches from public property]; Holmes, supra, 260 Cal.App.2d at p. 390 [finding no precedential support for the proposition that "the injury must occur on the public property in order for liability to attach"]; Branzel, supra, 247 Cal.App.2d at p. 71 [decedent electrocuted across the street from city park].)

CCCTA cites Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, involving an alleged dangerous condition of private property, as establishing that a landowner has no duty to remedy or warn of hazards on adjacent property not under the landowner's control. In Seaber, the plaintiffs sued a hotel for the death of a pedestrian who, on leaving the hotel, was struck by an automobile in a marked crosswalk adjacent to the hotel's property. The reviewing court held that the hotel, lacking control over the crosswalk on a public street, should not bear the burden of warning pedestrians of the risks posed by its use. (Id. at pp. 492-493.) But even assuming public entity liability under section 835 is coextensive with private liability for maintaining property in an unsafe condition, a premise CCCTA does not establish, we agree with the Court of Appeal that the feasibility of moving or removing a bus stop-an option not available to the hotel owners in Seaber-distinguishes the present case from Seaber. In this sense, as the Court of Appeal observed, the case at bar is closer to those involving mobile places of business, such as Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232 (bakery truck), than it is to Seaber: " ' " 'While the street vendor cannot control traffic on the street around him he can, to a degree, control his own movements, the places where he will do business and, thus, the avenues of approach to it.' " [Citations.]' (Seaber, supra, at p. 490.) Similarly, the existence of the bus stop and sign attracted patrons, beckoning them to cross . . . . And, while CCCTA could not control traffic, it did control the location of the bus stop . . . . The solution was to move or eliminate the bus stop, a remedy that imposed no undue burden on CCCTA."

Nor does the fact plaintiff's injury was immediately caused by a third party's negligent or illegal act (here, McLain's negligent driving) render the present case novel. No shortage exists of cases recognizing a dangerous condition of public property in some characteristic of the property that exposed its users to increased danger from third party negligence or criminality. In Baldwin v. State of California (1972) 6 Cal.3d 424, the asserted dangerous condition was the absence of a left-turn lane at a busy intersection, which allegedly contributed to the plaintiff's automobile accident. We held: "Of course the fact that any negligence by the state would not have resulted in injury to the plaintiff without the additional negligence of the driver who struck him from the rear is no defense to plaintiff's claim against the state." (Id. at p. 428, fn. 3.) Again, in Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718-719 (Ducey), considering the absence of a median barrier that allegedly would have prevented the injuries that occurred when an out-of-control vehicle crossed a highway median and collided with the plaintiffs' vehicle, we observed that "the state gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party's negligent conduct to inflict injury." 5


3 - Bauman also held that "[t]he very fact that plaintiff was injured while playing in the sand box . . . is some evidence" of a dangerous condition (Bauman, supra, 42 Cal.App.2d at p. 154), but that holding has been abrogated by enactment of section 830.5, subdivision (a). (See Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831.) This did not affect the court's holding that a jury could find a dangerous condition in "the playing of hard baseball in dangerous proximity to the sand box." (Bauman, supra, at p. 153.)

Because Branzel and Bauman were decided under predecessor statutes to section 835 (Branzel under Gov. Code, former 53051; Bauman under 2 of the Public Liability Act of 1923 before its codification as Gov. Code, former 53051), CCCTA maintains the courts' decisions "would not be the same today." But both former laws, like section 835, imposed liability for a "dangerous . . . condition" of public property. (Branzel, supra, 247 Cal.App.2d at p. 71; Bauman, supra, 42 Cal.App.2d at p. 148.) The Branzel court, moreover, noted that the 1963 passage of the Tort Claims Act, of which sections 830 and 835 are parts, made "no material changes in the law applicable to the facts now before us," and quoted, in support of its conclusion on the merits, the Law Revision Commission comment to section 830. (Branzel, supra, at p. 73, fn. 6.) Branzel and Bauman thus speak to the meaning of "dangerous condition" under sections 830 and 835 as well as under prior law.     [ back ]

4 - Justice Baxter's dissenting opinion misapprehends the basis for liability in this case. Plaintiff's theory, which the jury accepted and we find legally tenable, was that placing the bus stop at the intersection of Pacheco and DeNormandie created a dangerous condition because the stop could, at that location, only be reached from the south side of Pacheco by one of two approaches (the crosswalk and the narrow north shoulder of Pacheco), both of which were unnecessarily unsafe. Plaintiff did not and does not claim CCCTA should be held liable simply for locating a transit stop near a crosswalk or on a busy street. The principle at work-amply established in the above cited decisions-is not that property owners must "ensure the safety of all persons who encounter nearby traffic-related hazards in reaching their property" (dis. opn. of Baxter, J., post, at p. 3), but that public entities are subject to potential liability (not as insurers but for their own negligence, and not as a matter of common law but by mandate of sections 830 and 835) when their facilities are located in physical situations that unnecessarily increase the danger to those who, exercising due care themselves, use the facilities in a reasonably foreseeable manner.

We elaborated on these principles in two cases involving criminal assaults committed on public property. In Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799 (Peterson), we held that the plaintiff, assaulted while using a public parking lot, properly alleged a dangerous condition of public property by her claim that thick and untrimmed trees and foliage around the lot "permitted the assailant to perpetrate his crime" (id. at p. 812). We explained that while third party conduct by itself, "unrelated to the condition of the property" (id. at p. 810), does not come within section 835, the public entity may, under some circumstances, be liable under that statute if it maintains its property in a manner that fails "to protect against harmful criminal conduct on its property." (Peterson, supra, at p. 811.)     [ back ]

5 - See also, e.g., Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 804 (lack of barrier between public parking lot and beach was dangerous condition in that it allowed vehicles to drive onto the beach, where they were negligently raced, injuring the plaintiffs, who were sleeping on the beach; "if the third party's negligence or criminal conduct is foreseeable, such third party conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property"); Mathews v. State of California ex rel. Dept. of Transportation, supra, 82 Cal.App.3d at page 121 (dangerous condition [malfunctioning signal] led to accident when third party driver proceeded negligently against the light; "the third party's negligent use does not negate the existence of a dangerous condition"); Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584, 591 (dangerous condition of city sidewalks [accessibility] allowed them to be used by electric "autoettes"; city could not avoid responsibility for pedestrian injuries "upon the ground that it was the duty of the operators to use the vehicles with due care"); Bauman, supra, 42 Cal.App.2d at pages 154-155 (negligence of person who organized baseball game on field does not relieve city of responsibility for locating playground area near field used for baseball).    [ back ]

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