Bonanno v CCCTA -- California Supreme
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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.)
More recently, in Zelig v. County of Los Angeles, supra, 27 Cal.4th
1112 (Zelig), we rejected the plaintiffs' claim that the county's
failure to police its courthouse in such a way as to prevent the decedent's
shooting by her former husband constituted a dangerous condition of property
under sections 830 and 835. We distinguished cases such as Peterson,
supra, 36 Cal.3d 799, and Ducey, supra, 25 Cal.3d 707, as involving
a public entity's duty "to alter the physical condition of the property
to provide a safeguard against the danger presented by third parties."
(Zelig, supra, at p. 1139.) The Zelig plaintiffs, in contrast,
were "unable to point to the manner in which the physical condition of
the property should have been altered to prevent the shooting . . . ."
(Id. at p. 1140.) Thus, the "risk of injury was not increased or intensified
by the condition of the property . . . ." (Id. at p. 1137.)
Two points applicable to this case are, therefore, well established:
first, that the location of public property, by virtue of which
users are subjected to hazards on adjacent property, may constitute a
"dangerous condition" under sections 830 and 835; second, that a physical
condition of the public property that increases the risk of injury from
third party conduct may be a "dangerous condition" under the statutes.
Thus, neither factor provides legal grounds to hold the location of CCCTA's
bus stop cannot be a dangerous condition. Nonetheless, the facts of this
case prompt fears, articulated in an amici curiae brief from a group of
transit districts and other public entities, that by affirming the Court
of Appeal we will subject mass transit agencies and other public property
owners to broad and unpredictable liability for conditions, including
criminal activity, in the neighborhoods surrounding public facilities.
Thus, the amici curiae group asks, rhetorically: "[W]ill public entities
be required to analyze the placement of entrances on civic buildings to
ensure they are positioned nearest a lighted, and purportedly safer, intersection?
Must entrances to parking garages, playgrounds, swimming pools, schoolyards,
restrooms and other facilities be relocated away from busy streets? Must
public agencies avoid offering services in high crime neighborhoods?"
Likewise concerned that such wholesale liability for conditions on nearby
property not be imposed, contrary to legislative intent, on public entities,
we emphasize the limits of our holding in this case.
First, we have addressed in this case only one element of liability under
section 835, the existence of a "dangerous condition" of public property.
Indeed, we have focused almost exclusively on one aspect of that element,
the dangerousness that may arise from the property's location or physical
situation. We have not addressed the requirement of a "substantial (as
distinguished from a minor, trivial or insignificant) risk of injury"
(§ 830, subd. (a)) or, except in broad terms, the necessity of proving
the public entity's ownership or control of the dangerous property (id.,
subd. (c)). Either of these requirements may pose an insuperable burden
to a plaintiff claiming the location of public property rendered it dangerous.
As to other elements, a plaintiff seeking to prove liability under section
835 must show, in addition, that the dangerous condition proximately caused
his or her injury; that the condition created a reasonably foreseeable
risk of the type of injury that was actually incurred; and that the public
entity either created the dangerous condition through a negligent or wrongful
act or omission of its employee, or had actual or constructive notice
of the dangerous condition sufficiently in advance of the accident as
to have had time to remedy it. (§ 835.) We reiterate, moreover, the
limitation we stated in Zelig: public liability lies under section
835 only when a feature of the public property has "increased or intensified"
the danger to users from third party conduct. (Zelig, supra, 27
Cal.4th at p. 1137.) Thus, the mere fact that users of a government facility
bear some risk of being injured in an automobile accident, criminally
assaulted, or otherwise injured by a third party on their way to or from
the facility does not lead to government liability under section 835.
Nor does our proposed holding subject public entities to broad liability
for the placement of entrances to public facilities or any other aspects
of their design that might affect the safety of the facilities'
users. Even assuming a public entity had notice that a condition on property
adjacent to its facility's entrance made access from that point particularly
dangerous to users, a plaintiff suing on this ground would have to overcome
the general statutory immunity public entities enjoy from liability for
injuries arising from discretionary choices regarding a facility's "plan
or design." (§ 830.6.) Other statutory immunities, such as those
for injuries caused by the natural condition of unimproved public property
(§ 831.2), injuries caused by the condition of an unpaved trail or
recreational access road (§ 831.4), and injuries arising out of a
hazardous recreational activity (§ 831.7), may also apply to certain
claims that public property is in a dangerous condition because of its
location. Unless barred by statute, the public entity defendant may also
claim any other defense available to a private defendant, such as comparative
fault. (§ 815, subd. (b).)
Finally, our holding does not suggest public agencies must, to avoid
liability for crimes committed against their facilities' users, refrain
from offering services in high crime neighborhoods. Liability under section
835 is limited by section 835.4, which provides, inter alia, that a public
entity's creation or maintenance of a dangerous condition does not render
the entity liable if the act or omission creating the danger, or the measures
taken to protect against it, were reasonable. The reasonableness of such
act or omission is judged "by weighing the probability and gravity of
potential [foreseeable] injury . . . against the practicality and cost"
of acting so as not to create, or to better protect against, the risk
of injury. (§ 835.4.) In its official comment to section 835.4, the
Law Revision Commission explained that "[u]nlike private enterprise, a
public entity often cannot weigh the advantage of engaging in an activity
against the cost and decide not to engage in it. Government cannot 'go
out of the business' of governing." (Cal. Law Revision Com. com., reprinted
at 32 West's Ann. Gov. Code, supra, foll. § 835.4, p. 434.)
Under section 835.4, therefore, the reasonableness of a public entity's
creation or maintenance of a dangerous condition of its property must
be balanced against the costs and benefits of alternative means of
providing the public service, not against the alternative of discontinuing
the public service. Even assuming, therefore, that a transit agency's
bus or train stop were deemed in a "dangerous condition" because of criminal
activity in the surrounding neighborhood (which, again, would require
that the location or other characteristics of the stop increased the danger
to transit users) or, as here, in a location dangerous to access, the
transit agency would not be liable for third party injuries to transit
users if the only practical alternative to maintaining the stop at the
dangerous site was discontinuing service to the neighborhood.
The jury in this case expressly found the DeNormandie bus stop to be
a dangerous condition of CCCTA's property. Neither that the danger to
users of the bus stop arose out of conditions on adjacent property, nor
that the injury was caused in part by third party conduct, renders that
finding incorrect as a matter of law. Liability of public entities is
set by statute, not common law, and we are confident that upholding the
jury verdict here will not expand the potential liability
of transit districts and other public entities beyond that already recognized
by statute. Any contraction in the scope of such liability must
come from the Legislature.
The judgment of the Court of Appeal is affirmed.
GEORGE, C. J.
6 - Justice Brown's dissenting opinion (post,
at p. 5) observes that in this case the location of CCCTA's bus
stop did not increase the risk of injury to users of the crosswalk,
even if it increased the number of such users. This appears true
but irrelevant to the legal analysis. Plaintiff's theory of liability
at trial and on appeal was that the location of the bus stop
was a dangerous condition of CCCTA's property because it increased
the risk to users of the bus stop. Although moving the bus stop
to Morello or adding a new stop at that intersection would not have
made the DeNormandie crosswalk any safer, it would have provided
a safer access route for users of CCCTA's property, the bus stop.
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