In Thimon v. City of Newark, published January 27, 2020, the First District Court of Appeal, Divison 2 affirmed summary judgment for the defendant city in a case alleging a city intersection was a dangerous condition of public property. The 14-year-old plaintiff was crossing the intersection on her way to school at 7:30 on a December morrning. The intersection was not controlled by signals or stop signs, and contained no pedestrian-activated signals or lights. It had a painted crosswalk. After the plaintiff was in the crosswalk approximately six seconds, she was struck by a vehicle traveling on the street she crossed. The vehicle was driving under the 45 MPH posted speed limit.The driver did not see the plaintiff, due to glare from the morning sun. By driving despite his inability to see, the driver indisputably violated the basic speed law. His negligence was indisputably a proximate cause of the accident.The parties' experts disputed whether the intersection was dangerous. Over a 10-year period there had been no vehicle vs. pedestrian accidents at the crosswalk. The trial court granted summary judgment on the ground that there was no defect in the intersection.
The appellate court agreed. That the driver's negligence was a proximate cause of the accident did not preclude a finding of dangerous condition. The question was whether any dangerous condition increased or intensified the risk of injury from the third party's conduct. But the entity was not required to assume that third party drivers would act negligently or recklessly. The entity is only required to provide roads safe for reasonably foreseeable careful use. By showing that the street had no blind corners, elevation variances, or foliage that would obstruct a driver's view of a pedestrian in the intersection; that the intersection had a crosswalk painted with white lines; that signs warning of pedestrians hd been installed approaching the intersection; that the driver was negligent; and the absence of similar accidents, the city carried its prima facie burden on summary judgment of showing that the intersection did not pose a substantial risk to users with due care. The city was entitled to address each of the factors that the plaintiff identified as possibly making the street dangerous, whether individually or in combination with other factors. The plaintiff's argument that the city's showing did not show that the combination of factors at the intersection created a dangerous condition failed. In response to this showing, the plaintiff failed to raise a triable issue of fact. There was no evidence to support the plaintiff's contention that providing a painted crosswalk at the scene increased the risk from negligent drivers. Alleged failure to follow general guidance in Caltrans traffic manuals for marking crosswalks did not raise a triable issue, particularly since the city produced undisputed evidence that its engineering professionals exercised the discretion called for in the Caltrans manuals in evaluating the appropriateness of placing a crosswalk at the intersection. The theory that the crosswalk encouraged more pedestrians to cross at the intersection did not show an increase or intensification of risk to the plaintiff when she used it. The theory that the plaintiff would not have used the crosswalk if not marked was speculative. The argument that the crosswalk created a trap failed, because the claimed dangerous conditions–street width, traffic volume, traffic speed, absence of a signal or other traffic controls, the glare of the sun– were apparent to pedestrians. While the sun's glare combined with unexpected road features may create a dangerous condition, there was no evidence of that here. Case law implictly rejects the idea that an intersection on a heavily-traveled thoroughfare is made dangerous by the type or existence of crosswalk markings, the lighting conditions, or the lack of traffic devices. The proffer of an expert declaration opining a condition is dangerous does not preclude summary judgment.
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