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Kerri Ann Peltier, A Minor, Etc v. California Department of Transportation

July 30, 2012

KERRI ANN PELTIER, A MINOR, ETC., PLAINTIFF AND APPELLANT,
v.
CALIFORNIA DEPARTMENT OF TRANSPORTATION, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 72988)

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

Peltier 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

An inattentive motorist (who is not party to this appeal) struck a 14-year-old bicyclist, plaintiff Kerri Ann Peltier, in a crosswalk on State Route 36 (SR 36) in Plumas County. Plaintiff, a minor suing through her mother Lorri Shafer, as guardian ad litem, alleges that a dangerous condition of public property (Gov. Code, § 835)*fn1 makes defendant California Department of Transportation (the State) liable for her injuries. Plaintiff appeals from summary judgment entered in favor of the State, arguing the trial court improperly excluded expert opinion, ruled that prior accidents were not relevant unless similar, and ruled that negligence by any user of public property defeats a claim of dangerous condition of public property.

We conclude plaintiff fails to show evidentiary error and misconstrues the trial court's ruling, which applied the law correctly. The trial court did not err when it found no triable issues of material fact as to the existence of a dangerous condition.

We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a personal injury complaint against the State (and others who are not parties to this appeal),*fn2 alleging that plaintiff, while riding her bicycle southbound in a crosswalk on SR 36 just east of the intersection of SR 36 with Aspen Street and Martin Way, was hit by a motor vehicle traveling eastbound on SR 36.*fn3 Plaintiff alleged the motorist who struck her, James Davis Branch, was distracted by a logging truck that had pulled out of a gas station at the intersection of Aspen Street/Martin Way/SR 36 and was blocking the entrance to Aspen Street, and a pickup truck that turned from SR 36 onto Aspen Street and/or the gas station premises.

The only claim alleged against the State was the second cause of action for dangerous condition of public property. The complaint alleged SR 36, owned and controlled by the State, was in a dangerous and defective condition that created a substantial risk of injury when used with due care in a manner reasonably intended and foreseeable, in that the intersection of SR 36 with county roads Aspen Street and Martin Way, "is too busy and confusing, is without any traffic lights, and near a school and crosswalk; said crosswalk was dangerously and defectively maintained in that the markings were worn down and not visible, nor were high visibility markings used on the crosswalk; further the lighting and visibility of the crosswalk was poor." Plaintiff alleged that the State knew the intersection was dangerous given the traffic volume and the existence of the school, gas station and crosswalk at or near the area of the intersection. Plaintiff alleged the State had exclusive control and management of the crosswalk and roadway/intersection, created the dangerous condition, and/or had notice of it before this accident. Plaintiff alleged the State had prior notice of "previous similar collisions in the same general vicinity due to the defective condition." Plaintiff alleged the State's negligence caused her injuries, including permanent disability.

The State moved for summary judgment or, in the alternative, summary adjudication, on the sole ground that the undisputed facts showed no dangerous condition of the State's property.

The State submitted a separate statement of undisputed facts, most of which, according to plaintiff's response, are undisputed. The State's separate statement stated the following:

On October 10, 2006, around 4:55 p.m., plaintiff was riding her bicycle southbound across SR 36, a highway that runs east/west, when she was struck by motorist James Branch, who was driving eastbound in the number two (slow) lane of SR 36. It was daylight; the weather was clear; and the road was dry. There is no stoplight at the intersection. Plaintiff was in a marked school crosswalk close to the northeast edge of the highway's intersection with Aspen Street, a county road.*fn4 The highway in this area is straight and flat, with nearly unlimited sight distance. The speed limit is 30 miles per hour. The words "SLOW SCHOOL XING" are painted on the road approaching the crosswalk in yellow letters eight feet in length. A mast arm extends above the road bearing a yellow "Advance School" symbol sign, and a yellow "School Crosswalk" warning sign was posted at the crosswalk.*fn5

Immediately before the collision, nothing was blocking Branch's view of the crosswalk. However, his attention was not focused on the road ahead because he was distracted with what he believed to be a potential accident involving a logging truck and a pickup truck on Aspen Street.*fn6 By the time Branch directed his attention to the road ahead, it was too late, and he hit plaintiff.

Before the accident, Jeff Bruns was driving a vehicle six to eight car lengths behind Branch. Bruns saw plaintiff riding her bike across the crosswalk; nothing blocked his view of her or the crosswalk. Plaintiff did not dispute these facts but objected that they were irrelevant.

The State submitted evidence (disputed by plaintiff) that between 1998 (the earliest date available on the State's database) and this 2006 accident, no other pedestrian or bicycle accidents had occurred at or near this crosswalk. The State's expert traffic engineer, Richard N. Smith, attested that during that time, over 16 million vehicles drove through the subject location; there were no other bicycle, pedestrian, or dismounted pedestrian accidents at or near the subject crosswalk; and the location complied with standards of the California Manual on Uniform Traffic Control Devices. Smith opined the intersection did not create a substantial risk of injury when used with due care.

Plaintiff objected to Smith's declaration insofar as it stated that the location of the accident was postmile 8.49, contending it had occurred at postmile 8.48. She also contended Smith's declaration lacked foundation because he based his calculation of the number of cars passing the intersection on a broader stretch of roadway (postmiles 8.08 to 8.84, with no particularity as to whether the 16 million vehicles actually went through the subject intersection).

Plaintiff also filed an opposition to the State's motion for summary judgment and her own separate statement of undisputed facts, asserting that between March 5, 1997 and April 9, 2005, there were 13 traffic collision reports at the subject intersection, of which two involved a pedestrian and one involved a bicyclist; state traffic surveys and accident analyses showed a higher than average incidence of accidents between SR 36 postmiles 8.33 and 9.18 (which includes the Aspen Street intersection at SR 36 postmile 8.48); motorists and the County viewed the intersection as dangerous; and the County and State had discussed safety improvements.

Plaintiff submitted a declaration from her own retained expert traffic engineer, Harry J. Krueper, Jr., who opined that "high traffic volume, of which the State of California is aware, creates a dangerous condition and demands a high proportion of drivers' attention," and the angles at which Aspen and Martin join SR 36 do not provide drivers with as much visibility of cross-traffic as is provided at conventional right-angle intersections.

The State filed a reply, a response to plaintiff's separate statement of undisputed facts, and objections to plaintiff's evidence.*fn7 The State argued that "[o]nly substantially similar accidents are relevant," and plaintiff's evidence failed to show such accidents. The State's expert submitted a supplemental declaration explaining (1) the center of the intersection is at postmile 8.48, whereas the crosswalk is at postmile 8.49; (2) the traffic accident surveys report every accident within 95 feet on either side of an intersection as being "at" the intersection such that reported accidents are not necessarily related to the subject crosswalk; and (3) the accidents cited by plaintiff's expert were not similar to the subject accident. Most of the prior accidents did not involve a pedestrian or bicycle. The accidents cited by plaintiff included: a westbound rear-end collision between two motor vehicles; an eastbound vehicle that collided with a vehicle pulling out of Aspen Street onto SR 36; an eastbound vehicle turning onto Aspen Street that hit a vehicle pulling out of the gas station; a vehicle pulling out of a parking space on Aspen that hit a vehicle traveling on Aspen; an accident in which an eastbound vehicle and a westbound vehicle turning left collided; a vehicle turning onto Aspen that hit a car parked in five inches of snow; and a collision between an eastbound vehicle and a westbound vehicle that was turning left onto Martin Way.

The three accidents involving pedestrians or bicycles were also dissimilar. In an August 8, 2002 accident at the subject crosswalk, an eastbound vehicle stopped to allow a pedestrian to cross, and the vehicle was rear-ended by another eastbound vehicle traveling too fast. The pedestrian was not injured. On May 4, 2004, also at the subject crosswalk, a westbound motorist stopped for a pedestrian and was rear-ended by another westbound vehicle. While the pedestrian was on the south curb near the part of the crosswalk where plaintiff was struck, the westbound driver who stopped was on the opposite side of the street and was rear-ended there. In other words, the collision took place on the opposite side of SR 36 than the collision in this case. (See Appendix A.) Again, the pedestrian was not injured. And on July 28, 2001, a bicyclist riding eastbound on SR 36 was struck by a car backing out of a parking stall at an intersection west of the intersection where plaintiff was struck.

The State's reply pointed out that visibility was not at issue in this accident because the motorist who hit plaintiff admitted he had a clear, unobstructed view of the crosswalk; he simply was not paying attention to where he was going.

The trial court sustained the State's objections to the declaration of plaintiff's expert insofar as he opined that the configuration of the intersection, businesses with a high volume of traffic, and the location of the crosswalk created a dangerous condition. In its written ruling granting summary judgment, the trial court said: "Although Plaintiff's expert goes to great lengths to discuss the configuration of the intersection, the amount of traffic generated there, the potential for congestion and 'pedestrian-related traffic interactions,' certain areas with limited visibility and other obstacles to visibility of both vehicles and pedestrians, increasing visibility of the crosswalk, and drivers' 'reduced opportunity to perceive and react to the crosswalk,' none of these issues has any genuine correlation with the subject accident. In her own response to Defendant's separate statement of facts, Plaintiff admits [original underscoring] that the accident [occurred] in daylight, clear and dry weather with no unusual conditions (UMF [undisputed material fact] 2); the road was straight, flat and had nearly unlimited sight distance (UMF 4); signage for the crosswalk included yellow letters painted on the road, an overhead sign with beacons and another sign on the shoulder, and was in conformity with standards (UMF 3, 5-9); Defendant Branch's attention was not focused on his path of travel (UMF 13) and when he focused on the road ahead, it was too late to avoid hitting Plaintiff (UMF 14); nothing blocked Branch's view of the crosswalk or Plaintiff as she crossed the road (UMF 15); and that the driver behind Branch saw both Plaintiff and the crosswalk she was in before the accident occurred (UMF 17-18). As a result, Plaintiff's expert's declaration has little, if any, relevance, to the one issue raised by this motion but more importantly, even if admissible, the declaration is itself undermined by Plaintiff's own admissions in response to Defendant's separate statement of facts. Accordingly, this Court concludes it does not create a triable issue of material fact."

The trial court also concluded that plaintiff's evidence of prior accidents was inadmissible because it failed to show the requisite "substantial similarity," and even if this evidence was admissible, it was insufficient to establish a ...


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