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Jose Salas, Individually and As Administrator, Etc. et al v. California Department of Transportation

July 28, 2011

JOSE SALAS, INDIVIDUALLY AND AS ADMINISTRATOR, ETC. ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. CV034313)

The opinion of the court was delivered by: Duarte , J.

Salas v. Cal. Dept. of Transportation

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A vehicle traveling on State Route 12 (SR 12), a state highway, collided with a pedestrian, Paula Salas.*fn1 Paula sustained serious injuries and ultimately died. Subsequently, the administrator of Paula's estate, her husband Alberto, and her two sons (collectively plaintiffs) filed a civil complaint against the State of California, Department of Transportation (Caltrans). The complaint asserted three causes of action: (1) wrongful death based on a "dangerous condition" of public property pursuant to Government Code*fn2 section 835; (2) loss of consortium; and (3) a survivor's action. Caltrans moved for summary judgment or, in the alternative, summary adjudication, contending that a dangerous condition of public property did not exist at the accident location. The trial court agreed and granted summary judgment. Plaintiffs appealed.

We affirm. We find Caltrans carried its burden to establish a prima facie case of no dangerous condition. Most of plaintiffs' evidence offered in opposition was excluded by the trial court. We find either that the court's rulings were correct or that plaintiffs forfeited their challenge to the evidentiary rulings by failing to properly present such challenges with specificity as to each objection and reasoned argument and authority as to why the court's evidentiary rulings were an abuse of discretion.

FACTUAL AND PROCEDURAL BACKGROUND

I

The Accident

The accident occurred at the intersection of SR 12 and Bruella Road in the town of Victor. SR 12 runs east and west and Bruella Road runs north and south. At that intersection, there is a white-lined crosswalk offset a few feet to the east of Bruella Road. The crosswalk runs north and south across

SR 12. The posted speed limit in the area is 45 miles per hour and the terrain is flat.

At approximately 7:00 a.m. on October 21, 2006, Paula and Alberto attempted to cross SR 12 from north to south utilizing the lined crosswalk at the Bruella Road intersection. Larry Bafford was driving his Chevy Lumina eastbound on SR 12 approaching Bruella Road. As Paula walked across SR 12 she departed slightly from the crosswalk on its east side, apparently to examine a bag that was in the highway. Looking westward, Alberto observed Bafford's approaching vehicle in the distance with its headlights on. He continued walking and successfully crossed the highway, reaching a post on the other side. As Alberto reached the post, Bafford's vehicle struck Paula.

II

The Complaint

Plaintiffs brought suit against Caltrans for wrongful death and related causes of action. The first amended complaint alleged that a dangerous condition of public property existed at the accident location and it caused injury to and the death of Paula, creating liability for Caltrans under section 835. As alleged, the "dangerous condition of public property at the Incident Location on October 21, 2006, consisted of the following non-inclusive list: Lack of proper signage, controls or signals; failure to provide safe streets or highways; failing to design proper signage, controls or signals; failure to have traffic control devices in place; placing crosswalk in the location without property safety devices; failing to follow recommended standards as to the location of the crosswalk; failing to provide the recommended crosswalk design for the location; [and] failing to properly enforce and/or control speed in the area."

The complaint also sought damages for loss of consortium on behalf of Alberto. A survivor's action by the administrator of Paula's estate sought damages for medical and other expenses due to her injuries.

III

Summary Judgment/Adjudication Motion

Caltrans moved for summary judgment or summary adjudication, arguing that the accident location did not constitute a dangerous condition under section 835 due to its physical aspects and the lack of prior collisions involving a vehicle and a pedestrian. Caltrans produced evidence of both the physical nature of the intersection and the lack of vehicle versus pedestrian collisions at the accident location.

With respect to the location's physical aspects, Caltrans established the following undisputed facts: (i) the accident occurred at the junction of SR 12 and Victor Road; (ii) SR 12 at the accident location "is straight and level"; (iii) there are "no sight obstructions" to a vehicle, like Bafford's, traveling eastbound on SR 12 approaching the Bruella Road intersection; and (iv) there are "no sight obstructions" from the standpoint of a pedestrian looking westward from the crosswalk at the intersection of SR 12 and Bruella Road.

In support of these facts, Caltrans cited the traffic collision report and eight photographs of the accident location attached to the declaration of Caltrans's expert, Ron Nelson. The photographs, as further explained in Nelson's declaration, reveal that an eastbound driver on SR 12 would encounter two yellow pedestrian signs, one approximately 445 feet west of the center of Bruella Road before the intersection, and a second sign just west of the intersection of Bruella Road. An eastbound driver would also travel over one PED XING stencil starting 440 feet west before the intersection of Bruella Road. The photographs showed clear visibility and no sight obstructions at the intersection.

The witness statements in the accident report indicated the driver saw both Alberto and Paula before the accident. Bafford stated he was slowing down as he entered the town of Victor and thought that he was going around 45 miles per hour. He saw Paula and Alberto in the middle of the roadway. Alberto appeared to be bending over to pick up something in the roadway and Paula was about eight feet to the east of him. Alberto then stood up straight and walked to the south, out of the traffic lanes. During this time, Bafford said something out loud about Paula and Alberto out in the traffic lane.

Patricia Lewman was Bafford's passenger. She said Bafford was driving at a normal speed. She was unsure how fast he was actually going, but he was not exceeding the speed limit. Bafford said something about a pedestrian in the roadway. She looked ahead of them and saw Paula in the middle of the left turn lane bending over at the hips; it appeared that she was trying to pick up something. As they approached, Paula stood up straight and appeared to start to walk to the south, into the car's path. Bafford swerved to the left, but Paula then stopped and changed direction. Bafford swerved back to the right and Paula turned back to the right and ran into the path of Bafford. During this entire sequence, Bafford was applying his brakes.

Alberto stated Paula crossed the highway outside the crosswalk. After he crossed, Paula was in the left turn lane. She looked to the west where Bafford was approaching. Paula appeared to be confused. She turned as if to return north, but then walked south and was struck by Bafford. Caltrans also provided portions of Alberto's deposition, in which he testified it was light out and one could see well. He and Paula used the crosswalk every day. Alberto claimed Bafford was speeding. He explained that once he crossed the highway, he heard the screeching tires, and by the time he turned around, Bafford's car was already colliding with Paula.

The police report concluded Bafford was the cause of the accident as he failed to yield to a pedestrian and was driving at an unsafe speed for the conditions. The report also found Paula was a factor in the accident as she was not in the crosswalk and changed her direction at the last moment. A supplemental report recommended referring the matter to the district attorney's office for possible prosecution of Bafford for vehicular manslaughter without gross negligence.

As to the frequency of vehicle versus pedestrian collisions, Caltrans asserted that from January 1, 1997, through July 31, 2007, approximately 31,552,800 vehicles passed through the accident location. Caltrans further asserted that "[f]rom January 1, 199[7], through July 31, 2007, the subject pedestrian - motor vehicle incident was [the] only such incident involving a pedestrian and motor vehicle to occur at or around t[h]e subject location."

In support of this asserted fact, Caltrans cited to Nelson's declaration and attachments thereto. Nelson, a former Caltrans employee, explained in his declaration that Caltrans maintained a statistical computer database system called the Traffic Accident Surveillance and Analysis System (TASAS) that tracked the location, frequency, and type of accidents on state highways. The data was generated from traffic collision reports obtained from the California Highway Patrol (CHP) and was retained for 10 years plus the current year. Attached to Nelson's declaration was a copy of a TSAR report (a TASAS Selective Accident Retrieval report) produced from the TASAS system. The report was generated to determine whether there had been any other vehicle versus pedestrian accidents at or around the accident location. According to Nelson's declaration, the report ...


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