Cole v. City of Los Gatos 4/27/12 CA6

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State: California

Court: California Eastern District Court

Docket No: H035444

Case Date: 04/27/2012

Plaintiff: Cole

Defendant: City of Los Gatos 4/27/12 CA6

Preview:Filed 4/27/12

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

SARA COLE et al., Plaintiffs and Appellants, v. TOWN OF LOS GATOS et al., Defendant and Respondent.

H035444 (Santa Clara County Super. Ct. No. CV109033)

After attending a baseball game at Blossom Hill Park in Los Gatos, plaintiff Sara Cole returned to her vehicle, which she had parked between the north edge of the park and Blossom Hill Road. While standing near the back of her vehicle she was hit by a car driven by defendant Lucio Rodriguez, who would eventually plead guilty to driving while intoxicated. Plaintiff brought suit against Rodriguez and the Town of Los Gatos (Town), alleging as to the latter that the road and the area where she had parked--both of which were Town property--were in a dangerous condition because their configurations, coupled with their relative locations, induced park visitors to park where she had parked while inducing eastbound drivers on Blossom Hill Road to drive through that area in order to bypass stalled traffic on the road. The trial court granted Towns motion for summary judgment, finding no evidence that any dangerous condition of Towns property was a proximate cause of plaintiffs injuries. We hold that, on the contrary, the evidence before the trial court raised numerous issues of fact concerning the existence of

a dangerous condition and a causal relationship between the characteristics of the property and plaintiffs injuries. We will therefore reverse the judgment. BACKGROUND The accident occurred on the afternoon of September 9, 2007.1 Plaintiff had diagonally parked her GMC Tahoe, a sport utility vehicle over 18 feet long, in a graveled strip running between the north edge of the park and Blossom Hill Road. The road, the park, and the graveled strip all belong to Town. At the moment of impact plaintiff was loading a bicycle into the rear of the vehicle. As she did so, Rodriguez, who had been driving eastbound on Blossom Hill Road after consuming either whiskey or a wine-like beverage mixed with juice, left the road and entered the graveled area, where he collided with plaintiff, inflicting serious injuries. After stopping briefly, Rodriguez drove home to see his wife because he expected to be arrested and imprisoned as a repeat drunk driver. Plaintiff presented evidence that just before the accident, eastbound traffic on Blossom Hill Road had been brought to a stop next to the graveled area to wait for another eastbound driver, Carrie Cummings, to make a left turn into her driveway across the road from where plaintiff was parked. Plaintiff theorized that Rodriguez had left the road in an attempt to bypass these cars. No witness actually saw him do so, but plaintiff presented evidence, discussed in more detail below, that such maneuvers were common at that location, as was the practice of diagonal parking in the graveled area, and that Town had notice of these facts. Plaintiff also presented the lay opinion of Cummings, to which no objection was lodged, that her perception of events was most consistent with Rodriguezs having left the road to bypass stalled traffic.

Also present, apparently, were three of plaintiffs sons. They have joined her in this action, alleging that they suffered emotional distress as a result of witnessing the accident. Because their claims stand or fall with hers, we will for convenience generally speak of the matter as if only she had sued. 2

1

Cole filed a complaint for damages against Rodriguez and Town, alleging that her injuries were the proximate result of both Rodriguezs negligent driving and a dangerous condition of public property. Town was alleged to have created or maintained a dangerous condition by, among other things, "fail[ing] to provide adequate time and distance for safe merging of the lanes of traffic," "fail[ing] to provide a reasonable and effective barrier between the roadway travel surface and the parking area" or, alternatively, to "prohibit or limit parking in the area," "fail[ing] to properly construct, maintain, and isolate the parking area from the roadway consistent with reasonable traffic engineering principles," failing to provide "reasonably required protective barriers, curbs, or bollards," "fail[ing] to safely design, construct, and maintain the area for parking," "fail[ing] to sign, warn, or notify Claimants and other foreseeable users of the danger existing at the site of the injury," "fail[ing] to provide and/or maintain adequate lane channelization, signals, devices, and pavement striping so as to create a trap," "fail[ing] to ensure that the roadway merge was not visually confusing, misleading, and dangerous," and "fail[ing] to remedy the hazardous condition prior to Claimants injuries in light of: pre-collision complaints, accident history, and traffic volume." These factors, plaintiff alleged, "individually and in combination, constituted a dangerous condition that should have been, but was not, remedied or warned of" by Towns agents. Town moved for summary judgment on several stated grounds.2 As will appear, nearly all of its arguments fall back on the premise that that plaintiff is unable to establish that any characteristic of the property was a proximate cause of her injuries. Plaintiff countered with, among other things, the declaration of a traffic expert opining upon In its notice of motion Town asserted that (1) there was "no evidence of a dangerous condition of public property"; (2) there was "no evidence that any dangerous condition of public property caused plaintiffs[] injuries"; (3) there were "no facts giving rise to a special relationship between the Town and the plaintiffs"; and (4) it was immune from liability. 3
2

various deficiencies in the configuration of the road and graveled area and their causal role in the accident. Town objected to much of this declaration on grounds of relevancy and lack of foundation. The trial court sustained many of Towns objections and granted summary judgment, ruling that plaintiff had not presented "any admissible evidence that demonstrates . . . the existence of a physical deficiency in the subject public property, or [that] such defect actually caused or contributed to the third party conduct that injured Cole." Plaintiff brought a motion for new trial, which the trial court denied. This timely appeal followed. DISCUSSION I. Introduction A party can obtain summary judgment only by establishing the merit of his case "as a matter of law." (Code of Civ. Proc.,

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