In Pagan v. City of San Rafael, ordered published April 1, 2026, the First District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant city. The teenaged plaintiff was riding in a car driven by her teenaged friend on a rainy day when the car hydroplaned and on a curve.The driver oversteered to correct, and the car crossed over the double yellow lined and went down a hillside, injuring the plaintiff. The roadway was smooth and relatively flat, and the driver had driven it three times before. The plaintif sued the city for dangerous condition of public property. The operative complaint alleged the roadway was dangerous because there were no warnings of the sharp curve, no warning signs alerting motorists to slow down on the curve when conditions were wet, and no guardrails or barriers on the hillside. The city moved for summary judgment, on the ground that the conditions complained of were open and obvious. In opposition to summary judgment, the plaintiff submitted an expert declaration opining the hydroplaning was caused by cracks and damage to the roadway surface. The trial court granted summary judgment on the ground that the roadway conditions were open and obvious. The court declined to consider the argument and opinion that the roadway was damaged, because it was not pleaded in the complaint.
The appellate court agreed with the trial court. Public entities need not assume third parties will act negligently or recklessly; they only have a duty to make public property safe for reasonably foreseeable careful use. If it is unsafe only when foreseeable user use it without due care, it is not a “dangerous condition” within the meaning of the governing statutes. The defects in the roadway identified in the plaintiff’s expert’s report cannot be a basis for the plaintiff to demonstrate the property was in a defective condition, because the pleadings define the issues for summary judgment, and those defects were not pleaded. The expert’s opinions that additional warnings and a guardrail were necessary were conclusory and not supported by the evidence, and so could not raise a triable issue of material fact. Although the plaintiff alleged there was a concealed trap, there can be no concealed trap argument where the alleged dangers are reasonably apparent and would be anticipated by a reasonable person exercising due care. The driver was aware of the area, including the curve, and was aware that roadways can be slippery when wet. There was no evidence the driver could not see the curve in time to slow down. If a condition is open and obvious, there is no duty to warn because the condition itself serves as a warning.
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