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Schultz v. San Francisco Bay Area Rapid Transit District


June 29, 2005


The opinion of the court was delivered by: Marilyn Hall Patel United States District Court Judge Northern District of California


A resident of Minnesota, plaintiff Beverly Schultz rode a San Francisco commuter train on December 2, 2002. She has brought this action against defendants Does 1 through 50 and Roes 1 through 50 of the San Francisco Bay Area Rapid Transit District (collectively "BARTD"), alleging that the acceleration of a BARTD train caused her personal injuries. After a series of court orders to pare down her complaint to omit improper causes of action, plaintiff timely filed a revised Second Amended Complaint that includes claims arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. section 12131 et seq. and the Transportation Act, 42 U.S.C. section 5300 et seq., as well as state law claims of negligence, common carrier negligence, premises liability, willful failure to warn, and dangerous condition of public property. Presently before the court is defendant's motion for summary judgment on each of plaintiff's claims, or in the alternative, for partial summary judgment. The motion was deemed submitted without need for oral argument. For the reasons set forth below, the court rules as follows.


Beverly Shultz alleges that she sustained a broken hip when she was knocked to the floor of a San Francisco Bay Area Rapid Transit District ("BARTD") train as it departed a station. In her First Amended Complaint, plaintiff alleged causes of action for negligence, premises liability, willful failure to warn, dangerous condition of public property, product liability, pendent jurisdiction, negligent infliction of emotional distress, and respondeat superior. On February 23, 2004, defendant filed a motion for partial summary judgment as to plaintiff's products liability cause of action and plaintiff's claims for punitive damages and attorney's fees. The motion was granted by the court as unopposed on April 29, 2004.

On a motion for leave to amend, plaintiff submitted a draft Second Amended Complaint which included new claims under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, strict liability, and numerous violations of California state law. At a hearing on September 27, 2004, this court instructed plaintiff to redraft the complaint, paring it down to its essence as a negligence claim founded on diversity jurisdiction and eliminating erroneous causes of action such as "pendant jurisdiction." Plaintiff timely filed a redrafted Second Amended complaint which pleads six causes of action: violations of Title II of the ADA, common carrier negligence, negligence, premises liability, willful failure to warn, and dangerous condition of public property. Defendant's motion to strike those portions of the complaint which did not relate to a negligence theory of the case was denied.

In the present motion, defendant has moved for summary judgment as a matter of law for the following reasons: (1) each of plaintiff's causes of action is barred by BARTD's affirmative defense of design immunity under California Government Code section 830.6, (2) plaintiff cannot establish the required element of causation, (3) plaintiff cannot establish that allegedly deficient conditions were dangerous, as defined in California Government Code section 830(a), (4) plaintiff cannot establish that BARTD had actual or constructive notice of the allegedly deficient conditions, as required by California Government Code section 835, and (5) plaintiff has offered no evidence to support her federal claims.

On the Thursday before this court's Monday hearing, nearly three weeks after the filing deadline for her opposition, plaintiff filed an attorney affidavit and objections to evidence. The document is a series of numbered paragraphs containing enumerations of the discovery sought in the case, piecemeal legal arguments opposing the motion for summary judgment, assessments of BART's safety from a 1976 report on passenger injuries, and undocumented factual claims about plaintiff's condition.


Summary judgment is proper when the pleadings, discovery and affidavits show that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The moving party for summary judgment bears the burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id.

Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.


I. Failure to Oppose the Motion for Summary Judgment Defendant filed the present motion for summary judgment with this court on March, 28, 2005.

Consistent with this court's local rules, a hearing on the motion was set for May 2, 2005. Under Local Rule 7-3(a), plaintiff Beverly Schultz was required to file any opposition to defendant's motion at least twenty-one (21) days before the hearing-that is, by April 11, 2005. See Local R. 7-3(a) ("Any opposition to a motion must be served and filed not less than 21 days before the hearing day."). Local rules are "laws of the United States," and they will be enforced unless they are inconsistent with the Federal Rules of Civil Procedure. See Marshall v. Gates, 44 F.3d 722, 724 (9th Cir. 1995). Plaintiff did not file an opposition to defendant's motion, nor did she seek an extension of time in which to do so.

Seventeen days after the deadline for her opposition and two business days before this court's hearing, plaintiff filed "objections to evidence" in the form of an attorney affidavit. The affidavit frames legal arguments and factual attestations as personal knowledge subject to attorney testimony. The so-called affidavit is an amalgamation (driven more by free association than by logic) of excerpts from the complaint, snippets of case citation, raw factual speculation, requests for discovery, and objections to the objectivity of defendant's evidence. The court is at a loss to imagine an affidavit more at odds with the federal rule governing summary judgment. See Fed. R. of Civ. Pro. 56(e) ("Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein"). Though the document purports to state objections to evidence, the attorney fails to articulate even one federal rule of evidence or other grounds for objection. Even were this court to construe the paper as a late-filed brief, plaintiff's attorney has failed to answer defendant's legal arguments.*fn1 Filed on the eve of the hearing, incoherent as a brief, and inadmissible as an affidavit, plaintiff's attorney James Fishel's "affidavit and objections to evidence" is stricken from the record.*fn2

The absence of opposition to the motion for summary judgment does not change the moving party's burden of proof. See Marshall, 44 F.3d at 725. "A nonmoving party's failure to comply with local rules does not excuse the moving party's affirmative duty under Rule 56 to demonstrate its entitlement to judgment as a matter of law." Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). A moving party must affirmatively show that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Id. at 1183; Fed. R. Civ. Pro. 56(c). In analyzing a motion for summary judgment in the absence of an opposition, a district court may consider the moving papers and "such other papers as may be on file and specifically referred to" in the moving party's submissions. Martinez, 323 F.3d at 1179 (quoting Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001)).

II. Design Immunity

Plaintiff's causes of action for common carrier negligence, negligence, premises liability, willful failure to warn, and dangerous condition of public property rely on a core set of five allegations, namely that the BARTD train accelerated too rapidly, lacked warning signs advising passengers of the danger of train acceleration, provided passengers with insufficient time to board the train and find a seat, inadequately labeled seats reserved for the elderly and disabled, and lacked adequate handholds. Defendant argues that each of these factual allegations is barred by the affirmative defense of design immunity under California Government Code section 830.6. The provision states that:

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a [sic] construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor. Cal. Gov't Code § 830.6.

A public entity claiming design immunity must show the existence of three elements: (1) a causal relationship between the plan and the accident, (2) discretionary approval of the plan prior to construction, and (3) substantial evidence supporting the reasonableness of the design. See Grenier v. City of Irwindale, 57 Cal. App. 4th 931, 939 (Cal. Ct. App. 1997). See also Bay Area Rapid Transit Dist. v. Superior Court, 46 Cal.App.4th 476, 481-82 (Cal. Ct. App. 1996) (applying the design immunity defense in the context of BARTD dwell times, acceleration rates, and lurching control functions). The first two elements may only be resolved as a matter of law where the factual evidence is undisputed. Grenier, 57 Cal. App. 4th at 140. The third element is subject to an altered standard of review on motions for summary judgment, namely that the public entity must produce "evidence of solid value which reasonably inspires confidence," and need not show the absence of disputed fact. Id.

Plaintiff's allegations fall into two categories that warrant separate analysis in the context of a design immunity defense. First, several of plaintiff's allegations concern the engineering of the BARTD trains and system itself, namely her allegations concerning the train acceleration rates, jerk-limiting features, dwell times, and interior handholds for passenger safety. The balance of plaintiff's allegations concern the warning system within the trains, including the adequacy of signage informing passengers of the train's acceleration rate and the adequacy of signage informing passengers of seating reserved for the elderly and the disabled.

A. Design Immunity for BARTD Dwell Times, Acceleration Rates, and Handholds

A causal relationship between the plan and the accident, the first element required for a finding of design immunity, is generally established by showing that the injury occurred as the result of an alleged design defect. See id. As plaintiff has alleged that her injuries were caused by the train's rate of acceleration, inadequate wait times at each station (referred to as "dwell times"), and inadequate handholds, the court will treat this first element as established for the purposes of this motion. See Second Am. Compl. ¶¶ 33-35, 37-38, 82-83, 88, 96-97, 103-04, 108-09, 112-113. Defendant has submitted evidence that the train at issue in this case accelerated in accordance with the BARTD system acceleration and jerk-limiting standards, and that the train experienced no irregularities in its acceleration or dwell times for the entire day. See Kolesar Dec. ¶ 5-7.

Defendant has also established the second element of design immunity, discretionary approval of the contested design feature. It is undisputed that the acceleration rate of three miles per hour when leaving a station was approved in advance by the BARTD Board of Directors. Kolesar Dec. ¶¶ 8-10. Similarly, the frequency and position of handholds were part of the trains design and also approved by the BARTD Board of Directors. Kolesar Dec. ¶¶ 12-13. The record also establishes that the Public Utilities Commission conducted an audit of the BARTD system, including its acceleration and jerk-limiting features, in 2002 and found the system compliant with required safety features. Kolesar Dec. ¶ 14. Plaintiff does not contest that BARTD was approved by public officials and designed by licensed engineers exercising discretionary authority to give approval of the plan, and thus this element is established. See Kolesar Dec. ¶¶ 10-11; Thompson v. Glendale, 61 Cal. App. 3d 378, 384 (holding that the "employee exercising discretionary authority" under the terms of the statute need not be a licensed engineer, but merely that they are the individual given responsibility for approving plans and designs).

Under California law, substantial reasonableness of design can be shown simply by a civil engineer's opinion of reasonableness or approval of the plan by competent professionals. See Grenier, 57 Cal. App. 4th at 941. The design decisions and risk assessments made by public entities are entitled to substantial deference, prohibiting reexamination of the discretionary decisions made by public officials where reasonable minds could differ about the exercise of that discretion. See Cornette v. Dept. of Transp., 26 Cal.App.4th 63, 69-70 (Cal. 2001) (describing that "[t]he rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design").

Defendant argues that the BARTD trains' jerk-limiting features, acceleration rates, and dwell times were reasonably-designed based on the following evidence: the system was designed and approved by engineers, it is compliant with state and industry standards, and the system maintenance practices were inspected by the PUC during the year of the accident. Def's Mot. at 9-13. Defendant has offered a declaration from an electrical engineer in BARTD's Vehicle Maintenance Engineering Department as evidence of each of these three indicators of approval. See Koselar Dec. ¶ 10-15. There are no sources of contradictory evidence in the record.

The engineering and design approval process undertaken by BARTD is significantly more extensive and substantive than that approved by California courts in other contexts. See Moritz v. City of Santa Clara, 8 Cal. App. 573 (Cal. Ct. App. 1970) (finding that adherence to the Vehicle Code alone was sufficient as a basis for reasonableness); Thompson v. Glendale, 61 Cal. App. 3d 378 (Cal. Ct. App. 1976). This case is closely analogous to the design approval process in Grenier, in which a California appeals court held that design immunity applied to a city drainage and flood control system in which a civil engineer designed the plan, a city engineer approved the plan, and an engineering expert deemed the design reasonable. Grenier, 57 Cal. App. at 941.

The court finds that electrical engineer's opinion of reasonableness of design, as well as the system's design by licensed and competent professionals satisfies the Grenier standard. This holding is consistent with a recent decision of a California Court of Appeals in a factually-similar context. See Bay Area Rapid Transit Dist., 46 Cal.App.4th at 481-82 (issuing a peremptory writ instructing respondent lower court to enter summary judgment in favor of BARTD on the grounds that the train enjoyed design immunity for its acceleration rates, dwell times, and safeguards against jerking and lurching). The factual evidence on these issues is undisputed, and therefore this court finds as a matter of law that BARTD is entitled to invoke design immunity as a bar to plaintiff's challenges of its dwell times, acceleration rates, and handhold design. Grenier, 57 Cal. App. at 940.

B. Design Immunity for BARTD Warning Signs and Elderly Seating Signage

Plaintiff alleges that defendant breached its duty to warn passengers of a dangerous condition of public property by failing to post signs regarding train acceleration, and alleges that the labeling of elderly and handicapped seating near the exit doors was inadequate. See Second Am. Compl. ¶¶ 36, 108-09. BARTD trains do not include written warnings of acceleration, but the system does alert passengers to the imminent departure of the train by flashing a warning light and sounding an audible chime prior to closure of the train doors. Koselar Dec. ¶ 12. Defendant argues that it is entitled to the affirmative defense of design immunity on plaintiff's claims relating to the failure to warn.

In analyzing the design immunity defense, defendant skips a threshold question of whether California Government Code section 830.6 would apply to safety-related signage. The defense applies to "the plan or design of a [sic] construction of, or an improvement to, public property." See Cal. Govt. Code § 830.6. By its own terms, the design immunity defense is limited to a "design-caused accident." See Cameron v. State of California, 17 Cal.3d 318 (Cal. 1972). While warning signage may in some cases be an aspect of the plan or design of property, such that it falls within the ambit of a section 830.6 defense, failure to warn may also be the basis for an independent, concurring tort. Id. at 328-29 (holding that failure to warn can be a separate tort unreached by the design immunity defense because of the distinction between the "passive negligence" of failing to warn of a dangerous condition and the "active negligence" of designing a system which is dangerous). See also Grenier v. City of Irwindale, 57 Cal.App.4th at 945 (Cal. Ct. App. 1997) (holding that the issue of sufficiency of warning signs should be discussed independently of a plaintiff's defective design claims, because "the failure to warn of a trap can constitute independent negligence, regardless of design immunity").

In the present action, defendant has submitted evidence that, as in the case of the trains' acceleration and dwell times design, the warning signage inside the trains was part of the design approved by the BARTD Board of Directors. Kolesar Dec. ¶¶ 12-13. However, plaintiff has clearly alleged both active and passive negligence, i.e. that the trains constituted a dangerous condition of public property and that defendant failed to warn her of these dangers. Published California case law has not yet reached the question of whether liability for failure to warn of a concealed danger is limited to dangerous conditions that are independent of the design. This court declines to reach the unsettled question in this affirmative defense, because primary liability for a failure to warn provides an alternative means of resolution.

III. Failure to Warn Liability

Plaintiff must satisfy two fundamental statutory prerequisites to establish failure to warn liability, namely, (1) that an "actual dangerous physical defect" exists; and (2) that the danger is "not apparent to persons using the property with due care." See Fredette v. City of Long Beach, 187 Cal.App.3d 122, 131-32.(Cal.Ct. App. 1986). Under California law, a dangerous condition of public property is defined as "a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury" when such property is used with due care in a foreseeable manner. Cal. Gov't Code § 830(a).

Plaintiff has not yet had the opportunity to conduct live discovery on the issue of injury rates and dangers associated with BARTD's signage or other features, and therefore the court will not enter summary judgment against plaintiff on this issue. However, the record is clear that any dangers associated with BARTD dwell times, acceleration rates, or handholds are visible to any person using a BARTD train with due care. The trains alert passengers to the imminent departure of the train by flashing a warning light and sounding an audible chime prior to closure of the train doors. Koselar Dec. ¶ 12. The train cars are designed with numerous handholds, including handholds or grab rests on almost every seat, overhead handhold bars running the length of the center aisle, and pole handholds by each set of train doors. Id. at ¶ 13. The most basic common sense would dictate that upon closure of train car doors (as well as its attendant visual and audio signals), the train is about to begin moving and accelerating. Grab bars were available for patrons' stability. Plaintiff testified that she moved a full eight to ten feet into the train before it began moving, because she saw "the [empty seat] [she] wanted to sit in just up a little bit." Schultz Dep. at 49:11-12. From the time she entered the train, plaintiff had grab bars and handholds within arm's reach. See Seagrave Dec., Exh. E-1 to E-18. Plaintiff has not submitted a single piece of evidence to suggest that BARTD's alleged dangers are not readily apparent to persons using the trains with due care, and she has therefore failed to create a disputed issue of fact on the question.

Defendant is thus entitled to summary judgment on plaintiff's failure to warn theory of liability.

II. Plaintiff's ADA Claims

The ADA requires a plaintiff to plead and prove the following elements: (1) plaintiff is an individual with a disability; (2) plaintiff is "otherwise qualified" to participate in or receive the benefit of some public entity's services, programs, or activities; (3) plaintiff was either excluded from participation in or denied the benefits of these services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) the exclusion, denial of benefits, or discrimination was by reason of plaintiff's disability. See McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).

The record before this court fails to establish that plaintiff is a qualified person with a disability, i.e., that plaintiff was substantially limited in major life activities. See 42 U.S.C. § 12102(2). Although plaintiff testified in her deposition that she was "slowing down a bit" due to the aging process and that the "normal wear and tear" had led to knee replacement surgery, she stated that after her surgery she was "okay" and that she "could dance." Schultz Dep. at 17:3-24. Defendant also submitted the expert testimony of a physician who examined plaintiff after the accident and reviewed her medical records. See Bridgman Dec. Exh. B, Lang Dec. ¶¶ 1-5. In the doctor's opinion, plaintiff was "independently ambulatory" before the accident and had recovered fully from the accident. Id. Other than this extremely brief and incomplete snapshot of her physical condition, the record contains no indication of substantial impairments, nor of any limitations on plaintiff's life activities.

Astoundingly, plaintiff has failed to submit a single declaration or affidavit from her own physicians regarding plaintiff's condition. Plaintiff's attorney Fishel is not competent to testify to his client's physical condition, and even his stricken affidavit failed to identify a single fact in the record demonstrating that plaintiff's status as a qualified individual with a disability is a disputed fact. Defendant's showing in the record entitles BARTD to summary judgment in the absence of admissible evidence showing there is a genuine issue of fact for trial. See Fed. R. of Civ. Pro. 56(e). The record contains no such evidence. The discovery which plaintiff has sought and thusfar been denied in the current case would not spare plaintiff summary judgment on this score. Summary judgment against plaintiff is therefore granted on her ADA claims.*fn3


Defendant's motion for summary judgment is GRANTED.


Date: June 27, 2005

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