Proving a condition of public property is dangerous

Understanding the statutory basis of liability and the governmental immunities that may apply when prosecuting a personal-injury case

2016 November

Practically any condition of public property that is causally connected to an injury-causing event can amount to a dangerous condition for the purposes of asserting a claim for dangerous condition of public property. As a result, the state legislature and courts have promulgated distinct elements of liability and several immunities barring potential claims alleging hazardous conditions of public property. Understanding the complexities of these liability elements and immunities can be daunting. This article provides an overview of the statutory basis of a claim for dangerous condition of public property, common immunities asserted in response to the claim, and practical advice to avoid common pitfalls in prosecuting the claim.

The statutory basis of the claim

The only way to pursue a direct liability claim against a public entity for a dangerous condition of public property is by meeting the statutory requirements of Government Code section 835 that provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Thus, a public entity may be liable for injury proximately caused by a dangerous condition of its property if the entity either creates a dangerous condition on its property or fails to remedy a dangerous condition when it has actual or constructive notice of the condition and had sufficient time to take preventive measures before the injury.

What constitutes a “dangerous condition”

“‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830 subd. (a).) “Public property is in a dangerous condition within the meaning of section 835 if it ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” (Cordova v. City of L.A. (2015) 61 Cal.4th 1099, 1105.) Public property may also 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.” (Bonnano v. Central Contra Costa Transit Auth. (2003) 30 Cal.4th 139, 149.)

It is important to keep in mind that there is no bright-line rule as to what constitutes a dangerous condition and each case depends upon its facts. (Fackrell v. City of San Diego (1945) 26 Cal.2d 196, 206.) Moreover, a remedy in one situation may not appropriately address a dangerous condition in another situation. For instance, “[A] prior dangerous condition may require street lighting or other means to lessen the danger but the absence of street lighting is itself not a dangerous condition.” (Mixon v. PG & E Co. (2012) 207 Cal.App.4th 124, 133.) Therefore, it is important to research cases involving similar dangerous defects in order to identify and pursue a proper theory in the case.

The process of identifying a dangerous condition should include employing an expert whose expertise relates to the potential dangerous condition. For instance, if the injury occurred because of a defect on the roadway, you should look to retain an expert with expertise in traffic safety. Not only can the right expert help identify the defect, he or she can identify other potential theories to pursue, advise on evidence to obtain, and suggest ways to avoid immunities that are likely to be asserted.

Ownership or control

Dangerous condition liability is conditioned upon the public entity’s ownership or control of the property. (Gov. Code, § 830 subd. (c).) A public entity will typically confirm ownership (or direct you to the potential owner) in response to a letter to the entity requesting ownership information.

Sometimes there is a question as to the entity’s relationship to the dangerous property and whether the entity had sufficient control. In these cases, the key issue is whether the public entity was able to protect against or warn of the hazard. (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 989-991.) Therefore, in cases in which control of a dangerous condition is an issue, look to determine who has the power to correct the dangerous condition.

The power to correct may be an issue in cases involving “adjacent property.” “Adjacent property” means the area that is exposed to the risk created by a dangerous condition of public property. A public entity’s property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property, or if a condition on the adjacent property exposes those using public property to a substantial risk of injury. (Bonanno, supra, 30 Cal.4th at p. 148.) Consider a tree on private property which blocks the view of a stop sign. Even though the tree is on adjacent private property, the location of the blocked stop sign may create liability against the public entity which controls the adjacent roadway.

Getting what you need before filing suit

Because of the limited time to file a government tort claim and subsequent lawsuit against a public entity, it is important to identify the proper defendant which owns or controls the property containing the dangerous condition, and to obtain as much information regarding the location as soon as possible. If there is a report of the incident, such as a traffic collision report, it may help identify the responsible entity. Sometimes, further investigation may be required and your expert should be able to help if it is unclear as to which entity is responsible.

Once you have identified the responsible entity, the next step is to obtain as much information as possible about the location, including the design history, prior complaints and accident history. Thankfully, much of this information can be obtained by submitting a California Public Records Act (“CPRA”) request directly to the public entity. Work with your expert in creating a comprehensive list of records to request from the entity. With the exception of records exempt from disclosure by law, each state or local agency must promptly make requested records available to any person.

Accident history may be used to prove the existence of a dangerous condition. However, for evidence of previous accidents to be admitted to prove a dangerous condition, it must be shown that the conditions under which the previous accidents occurred were the same or substantially similar to the one in question. (Mixon, supra, 207 Cal.App.4th at 137-138.) Also, there must be no substantial change in the physical conditions between the time of the prior accidents and the accident at issue in the litigation.

Conversely, the public entity will likely argue that a lack of similar accidents evidences the condition is not dangerous. However, the absence of other similar accidents is not dispositive of whether a condition is dangerous or not and does not definitively establish a finding of non-dangerousness absent other evidence. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.)

In addition to requesting information regarding accident history, make sure to conduct an internet search of the subject incident as well as the location and surrounding area. If a location has had prior accidents or is in an area of known danger, your search may reveal newspapers articles, blogs and even actions taken by the governing local body regarding the location. There is nothing more compelling than finding a study commissioned by the municipality which revealed the dangers of the location prior to the incident and the municipality’s failure to take any action.

Be certain to take photos and videotape the location as soon as possible after the incident, since an entity may correct the defect or make other changes, especially if the entity is aware of your client’s potential claim.

Used with due care

The defendant entity will frequently focus on the conduct of the individuals involved in the incident. However, the due care requirement does not require the plaintiff to prove that the property was used with due care at the time of the injury, either by himself or by a third party. (Lane, supra, 183 Cal.App.4th at p.1347.) As long as the condition posed a substantial risk of injury to persons who were exercising due care, the conditions for a dangerous condition may be met.

However, also keep in mind that the entity is not liable if the property is safe when used with due care and the risk of harm arises only when a foreseeable user fails to exercise due care. (Gov. Code, § 830 subd. (a).) For instance, in Schonfelt v. State of Calif. (1998) 61 Cal.App.4th 1462, the court determined that “no reasonable person using due care,” including a child, would jump a fence and run across a freeway.”

Similarly, the public entity is not responsible if the condition becomes dangerous only when “misused.” (Gov. Code, § 830 subd. (a).) In Biscotti v. Yuba City Unif. Sch. Dist. (2007) 158 Cal.App.4th 554, the court found that a child’s use of his bicycle as a substitute ladder to reach over a fence was not a reasonably foreseeable use of the fence.

Trivial risk does not create dangerous condition

In dangerous condition cases involving conditions such as uneven sidewalks or potholes, the entity will frequently argue that the alleged defect is trivial. A condition is not dangerous if the court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in light of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when the property was used with due care in a reasonably foreseeable manner. (Gov. Code, § 830.2.)

Although courts occasionally refer to this principle as the “trivial defect defense,” it is not a true affirmative defense. (Kasparian v. AvalonBay Comm. (2007) 156 Cal.App.4th 11.) Instead, the plaintiff has the burden of proof to establish that the defect caused the injury and was not trivial. As one court explained:

The legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.

(Stathoulis v. City of Montebello, (2008) 164 Cal.App.4th 559, 567-568.)

The court must also look at whether the defect was conspicuous enough to put the entity on notice, which includes consideration of the following: the defect’s seriousness; visibility; frequency with which the area is traveled; and likelihood a reasonable inspection would have revealed the defect in time to make necessary repairs. (Ibid.)

In preparing to meet the defense, obtain information on the entity’s selection of repair criteria and try to show through deposition and other means that, under the entity’s own standards, the defect was significant enough to require repairs. In Laurenzi v. Vranizan (1945) 25 Cal.2d 806, based upon a City inspector’s admission that if he had seen the sidewalk, he would have found it hazardous and repaired it, the Court found that the defect was not trivial as a matter of law.

Oftentimes, a defendant asserting the defect was trivial focuses exclusively on the type and size of the defect, to the exclusion of the other factors. However, there is no fixed standard in height, size, etc. as to what makes a defect trivial. (Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 51.) Therefore, be prepared to marshal evidence on the additional applicable factors and argue the totality of the circumstances evidences the defect is more than trivial.

Negligence

If proceeding under a negligence theory, the plaintiff has to prove the public employee’s conduct was unreasonable in light of the foreseeable risk of harm. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1132-1133.) Evidence that a public employee deviated from well accepted standards, or did not use the standards at all, will support a dangerous condition claim based upon public employee negligence.

Nonetheless, a claim for dangerous condition is also subject to a reasonableness defense. Specifically, a public entity is not liable for a dangerous condition if: (1) the act or omission was reasonable; or (2) the action taken to protect against the risk, or the failure to act, was reasonable. (Gov. Code, § 835.4.) Reasonableness is a question of fact, and requires the fact finder to consider the “time and opportunity” the public entity had to take action and to weigh the probability and gravity of potential injury against the “practicality and cost of protecting against the risk of such injury.” (Gov. Code, § 835.4.) This defense is unique to public entities, so be mindful that this is a separate defense that applies even if the plaintiff establishes that the defendant entity’s conduct was unreasonable.

Actual or constructive knowledge

Dangerous condition liability can also be shown by the public entity’s notice of the condition and failure to take corrective action. A public entity has actual notice of a dangerous condition if it has actual knowledge that the condition exists and knew or should have known of its dangerous character. (Gov. Code, § 835.2 subd. (a).) A public entity has constructive notice of a dangerous condition if it is established that the condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code, § 835.2 subd. (b).)

Sufficient notice can be the most difficult element for a plaintiff to satisfy. In addition to photographs showing the obviousness of the defect, look to use records detailing requests for repairs, traffic studies, inspection plans, and prior complaints. Also, depending upon the size and nature of the case, consider speaking to local businesses and residents about how long the condition existed, complaints that may have been made, and visits to the location by entity personnel.

Also, under the “reasonable inspection test,” constructive notice may be shown if the plaintiff can demonstrate that the dangerous character of the property would have been revealed had public employees exercised due care by operating under an inspection system that was “reasonably adequate (considering the practicality and cost of inspection weighed against the likelihood and magnitude of the potential danger...) to inform the public entity whether the property was safe for the [intended] use or uses....” (Gov. Code, § 835.2 subd. (b)(1).) In discovery, make sure to ask what inspection systems the entity may have used. Often times, an entity will have an inspection system in place, but will have failed to actually follow through in making inspections. Have the entity explain all of its reasons for failing to use its own system. Also, your expert should be able to advise you as to what inspection system should have been in place.

Causation

Once these liability elements have been established, a causal connection between injuries of the kind which did occur and the dangerous condition must still be shown. The dangerous condition does not have to be the sole proximate cause of the injury. (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24.) A dangerous condition can be a proximate cause of an injury even though the negligent act of a third person concurred in producing the injury. (Murrell v. State of Calif. ex rel. Dept. Pub. Works (1975) 47 Cal.App.3d 264.)

Indeed, a public entity may be liable for a dangerous condition if some physical characteristic of the property exposes its users to increased danger from third-party conduct. (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1348.) Take, for instance, a poorly lit staircase of a public parking structure which allows third-party criminal activity to occur. While the criminal activity may be the clear proximate cause of the injury, the dangerous condition created by the poorly lit staircase caused an increased danger of the activity. Importantly, the California Supreme Court recently held that a plaintiff is not required to show that the alleged dangerous condition also caused the third party conduct which precipitated the incident. (Cordova, supra, 61 Cal.4th at p. 1099.)

Nonetheless, unless a third party’s misconduct combines with a defective condition in causing injury, a public entity cannot be liable for a third-party’s misconduct. (Zelig v. County of L.A. (2002) 27 Cal.4th 1112, 1135.) Therefore, if the dangerous condition case involves third-party conduct, make sure to link the conduct to a physical aspect of the property over which the entity did have some control.

Beware of the immunities

There are a number of statutory immunities which may be asserted by a public entity. The more frequently asserted immunities are discussed below. The statutory immunities under the California Government Claims Act are affirmative defenses which must be specifically pleaded. Since the defendant may file a dispositive motion based upon asserted immunities, it is important that plaintiff’s counsel send discovery and obtain the information upon which the defendant is relying to support the pleaded immunities. Therefore, as soon as the defendant’s answer to the complaint is received, carefully review the affirmative defenses and send exhaustive discovery regarding the evidentiary basis for each of the asserted immunities.

• Design immunity

Design immunity is one of the most common immunities asserted in connection with a dangerous condition claim based upon roadway conditions or construction on public property.

A public entity claiming design immunity must show: 1) a causal relationship between the plan and the accident; 2) discretionary approval of the plan prior to construction; and 3) substantial evidence supporting reasonableness of the plan or design. (Gov. Code, § 830.6.) The first two elements may only be resolved as issues of law if the facts are undisputed. The third element requires only evidence of solid value that reasonably inspires confidence regardless of whether the evidence of reasonableness is undisputed. (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550.) Regarding the third element, the court determines whether there is substantial evidence supporting a reasonable public employee could have adopted the plan, or a reasonable employee could have approved the plan or the standards for the design. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263-1264.)

In discovery, plaintiff’s counsel should request all applicable plans related to the design of the subject location, including all update plans and changes after the initial design. A request should also be made for all standards that were used in the design and construction. Carefully review the plans and standards and then set depositions of those persons involved in the design and approval. If standards were not followed in the design or construction, this will make for good topics to cover at deposition.

Likewise, it is important to aggressively pursue whether changed circumstances may impact application of the immunity. For instance, design plans which may have met demands in the 1960s or 1970s may no longer be applicable because of a change of circumstances in the intervening years. In order to show a loss of design immunity under changed conditions, a plaintiff must show: 1) the plan or design has become dangerous because of a change in physical conditions; 2) the public entity had actual or constructive notice of the dangerous condition; and 3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. (Alvis, supra, 178 Cal.App.4th at p. 554.)

When pursuing the changed circumstances exception to design immunity, it is important to remember that the change must be one to the physical condition of the construction or improvement. For instance, an improvement may constitute a dangerous condition if increased traffic at the location, coupled with aberrant accident history or a change in state standards, demonstrates dangerousness. (Alvarez v. State (1999) 79 Cal.App.4th 737-738.) However, an increase in traffic alone, unconnected to the change in physical condition, will not constitute changed circumstances. (Ibid.)

• Regulatory traffic control or warning signals

Be careful in alleging the lack of traffic controls or warning signs as part of the dangerous condition. A condition is generally not dangerous because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or roadway markings as described in the Vehicle Code. (Gov. Code, § 830.4.) Of course, a dangerous condition can still be shown where it can be demonstrated that the danger was caused not only by the absence of these devices and markings, but also by some other condition of the property. (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534-1535.) For instance, evidence that an intersection was made dangerous because of an amalgam of factors, of which the failure to provide a traffic signal or regulatory sign was but one factor, would be sufficient to avoid the immunity of section 830.4. (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174.)

Moreover, a public entity cannot be liable for failing to provide a traffic or warning signal, signs, markings or devices described in the Vehicle Code. (Gov. Code, § 830.8.) However, the immunity set forth in section 830.8 does not apply if a signal, etc. (other than one described in the statute) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. Therefore, liability may exist for failure to provide a signal or device not listed in Gov. Code § 830.4 where the condition “constitutes a trap to a person using the street or highway with due care.” (Law Rev. Com. Comment to Gov. Code, § 830.8.) “This ‘concealed trap’ statute applies to accidents proximately caused when, for example, the public entity fails to post signs warning of a sharp or poorly banked curve ahead on its road or of a hidden intersection behind a promontory, or where a design defect in the roadway causes moisture to freeze and create an icy road surface, a fact known to the public entity but not to unsuspecting motorists, or where road work is being performed on a highway.” (Chowdhury v. City of L.A. (1995) 38 Cal.App.4th 1187, 1196-1197.)

• Natural conditions

If the incident occurred in a natural setting, such as a beach or lake, it is best to research whether the circumstances may fall within the natural conditions immunity of Government Code section 831.2. that states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” The immunity has been applied to a wide swath of conditions, including beaches, lakes, rivers, reservoirs, trees and even wild animals. Moreover, the immunity has been broadly construed to provide immunity even when the natural condition has been affected by human activity or improvements. (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 928-929.) Unlike other immunities, the immunity provided by section 831.2 is absolute and applies regardless of whether the public entity had knowledge of the dangerous condition or failed to give warning. (Winterburn v. City of Pomona (1986) 186 Cal.App.3d 878, 880-882.)

• Trail immunity

The “trail” immunity applies to unpaved roads and trails used for access to outdoor recreation areas for fishing, hiking and other recreation, so long as the road or trail is not a public street or highway. (Gov. Code, § 831.4 subd. (a), (b).) This immunity is also absolute and applies regardless of failure to warn. The immunity may also apply to paved trails, walkways and paths providing access to unimproved property when the public entity has reasonably attempted to provide adequate warnings of hazards. (Gov. Code, § 831.4 subd. (c).) “Whether the property is a trail depends on a number of considerations, including accepted definitions of the property, the purpose for which the property is designed and used, and the purpose of the immunity statute.” (Amberger-Warren v. City of Piedmont (2006) 143 Cal.App.4th 1074, 1077.) Therefore, the immunity has been found to apply to a trail used for horseback riding (not just providing access to horseback riding), a paved pathway in a dog park, and harm caused by a third party on a trail.

• Weather condition immunity

A public entity is also immune for an injury caused by “the effect on the use of streets and highways of weather conditions,” e.g., “fog, wind, rain, flood, ice or snow.” (Gov. Code, § 831.) However, the immunity does not apply if the effect “would not be reasonably apparent to, and would not be anticipated by, a person exercising due care,” or where the weather conditions “resulted in physical damage to or deterioration of” the street or highway. (Ibid.) In Erfurt v. State (1983) 141 Cal.App.3d 837, 845, 846, the court determined the immunity did not apply where the effect of blinding sunlight, combined with improper channelization and a pillar in the middle of the freeway, could not be anticipated. If confronted with a public entity asserting the weather condition immunity, look to connect the weather condition to some defect of the roadway and establish that the effect of the combined conditions would not have been anticipated by a reasonable person.

Conclusion

The complete list of ways in which a claim for dangerous condition of public property may manifest itself is a long one.  This article has introduced the concepts necessary to prosecute a claim seeking redress for the harms caused by dangerous conditions existing on public property, and should assist counsel in their strategic plan to prosecute the claim.