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Bonanno v CCCTA -- California Supreme Court

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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.
                                        WERDEGAR, 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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