Opinion
F073710
06-19-2018
CHRISTOPHER BRODERICK, Individually and as Successor in Interest, etc. et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA et al., Defendants and Respondents.
Greene Broillet & Wheeler, Browne Greene, Robert D. Jarchi, Christian T.F. Nickerson, and Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer, and Joseph S. Persoff, for Plaintiffs and Appellants. Jeanne Scherer, Lauren A. Machado, Douglas L. Johnson, Bruce D. McGagin, and Raiyn Bain for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CVPO-10150)
OPINION
APPEAL from a judgment of the Superior Court of Mariposa County. Wayne R. Parrish, Judge. (Retired judge of the Mariposa County Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Greene Broillet & Wheeler, Browne Greene, Robert D. Jarchi, Christian T.F. Nickerson, and Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer, and Joseph S. Persoff, for Plaintiffs and Appellants. Jeanne Scherer, Lauren A. Machado, Douglas L. Johnson, Bruce D. McGagin, and Raiyn Bain for Defendants and Respondents.
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In 1953, the California Department of Transportation (Caltrans) built a structure to carry water under a highway. The structure included a pipe seven feet in diameter and 136 feet long, leading to a concrete apron where the water channel ended a short distance beyond the end of the pipe, discharging water onto the ground below. The end of the apron was only a few feet above the ground when the structure was built, but the ground eroded over the years, creating a drop-off onto jagged rocks. In 2010, the apron was about 25 feet directly above the rocks; about five feet out from the end of the apron the drop-off was about 50 feet. The apron itself was thick with slick algae growth. Caltrans was aware that the location was frequented by the public, members of which often walked through the pipe and stood on the apron. Despite its employees' awareness of the situation, Caltrans never installed signage, fences, guardrails, or anything similar.
On April 30, 2010, plaintiffs' decedent, Ryan Christopher Broderick, jogged or skipped through the pipe, slipped on the apron, and fell to his death. Plaintiffs sued Caltrans, alleging a dangerous condition of public property. After plaintiffs presented their evidence at trial, the trial court granted Caltrans' motion for nonsuit, finding that (1) plaintiffs failed to present substantial evidence to support each element of their cause of action based on a dangerous condition of public property, and (2) the facts fell within the doctrine of primary assumption of risk, which afforded Caltrans a complete defense. The court entered a defense judgment and awarded Caltrans over $300,000 in costs and attorneys' fees under Code of Civil Procedure section 1038.
We find the nonsuit motion was granted in error. Plaintiffs did present evidence from which a reasonable finder of fact could conclude the elements of the cause of action were proven. At the same time, the evidence did not compel the conclusion that Caltrans was shielded by the defense of primary assumption of risk.
The erroneous nonsuit is sufficient to reverse the judgment in its entirety, but there are additional issues we will address for the guidance of the trial court on remand. First, the award of attorneys' fees and costs was a manifest abuse of discretion. Under Code of Civil Procedure section 1038, such an award requires a finding that no reasonable attorney could have believed the lawsuit had merit or that plaintiffs acted with subjective bad faith. The record is devoid of support of either element. Second, the court made several important errors in excluding evidence. Finally, there were certain irregularities in the conduct of the trial judge that, while not reversibly erroneous, are disturbing and must not be repeated on remand.
We reverse the judgment, including the award of costs and attorneys' fees, and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
Plaintiffs Christopher and Lisa Broderick (Ryan Broderick's parents) and the estate of Ryan Broderick filed a complaint in Orange County Superior Court on January 25, 2011, and a second complaint in Mariposa County Superior Court on April 27, 2012. The two cases were consolidated in Mariposa County Superior Court on November 26, 2012.
The 2011 complaint named the following defendants: Caltrans, Mariposa County, the Fischer Family 1993 Trust, and the Prange Trust. Only Caltrans is a party to this appeal.
The 2011 complaint alleged that on April 30, 2010, Ryan was legally on property owned or managed by the defendants along Highway 140 at Briceburg Grade in Mariposa County (at a location known as Rancheria Gulch ) when he slipped at the end of a culvert and fell off a steep cliff to his death. The complaint alleged one cause of action against Caltrans and Mariposa County for maintaining public property in a dangerous condition. It stated that the steep drop-off was located beneath a slippery surface approached via a tunnel, that the edge of the slippery surface was a short distance from the tunnel exit, and that the drop-off was concealed from the view of persons approaching it through the tunnel. The Fischer Family 1993 Trust and the Prange Trust also were alleged to be owners or managers of the property. Against them, the 2011 complaint alleged a premises liability cause of action. The complaint prayed for economic and noneconomic damages and pre- and post-judgment interest.
The defendants named in the 2012 complaint were Three Springs Community, Kearey Allison, and Susan Aronson. As will be seen, these were an entity by which Ryan was employed at the time of the accident and two of its agents or managers. The complaint alleged one cause of action for negligence against them. The trial court granted these defendants' motion for nonsuit, a decision not at issue in this appeal.
At trial, Aronson testified that Ryan was an apprentice in the apprenticeship program at Three Springs Community at the time of his death. Apprentices provided their labor in exchange for room and board, and they learned about organic farming on Three Springs Community's 160-acre property. In addition to Ryan, who was 20 years old at the time of his death, there were three other apprentices at that time, aged 18, 18, and 21. Aronson worked as a mentor or teacher in this program. At the time of trial, she had served on the Three Springs Community Corporation's board of directors for about 10 years and had been its treasurer.
Aronson testified that on the day of the accident, she, Allison, Ryan, and the other apprentices set out on a trip from Three Springs Community to Yosemite. They planned to make sightseeing stops at a number of points along the way, including the location on Highway 140 at Briceburg Grade. Aronson had been to the location before and had walked through the pipe and looked at the view from the end of the culvert.
When the group arrived at the site on the day of the accident, according to Aronson's testimony, they parked in a pullout beside the highway. There were no signs indicating they should not park or should not get out there. As the group walked from the parking place to the culvert, Aronson saw no signage of any kind. There also were no barriers or fences along the way. There were indications that the location was visited by the public, however, including trash and cigarette butts on the ground and graffiti in the large pipe.
As the group proceeded toward the overlook, they sang and made echoes inside the pipe, which was seven feet high. A couple of members of the group were ahead of Aronson, and the rest, including Ryan, were behind her. Aronson found there was traction for her feet inside the pipe if she avoided a narrow stream of water several inches deep running down the middle of the curved floor, but the concrete apron outside at the end was covered with green algae and very slippery.
Inside the pipe, Ryan passed Aronson and skipped toward the exit. When he reached the point where the pipe ended and the apron began, he tried to stop but instead began to slide out of control. It "looked like he was stepping on 100 slippery banana peels." Aronson saw Ryan slip off the edge. She looked down and saw him lying on the rocks below.
Allison testified at trial that he had been part of Three Springs Community since 2005 and worked teaching the apprentices about organic farming. In the 10 to 12 years before the accident, he had visited its location about 24 times, and had seen graffiti and other indications of public usage each time. The amount of graffiti had gradually increased over the years. He had never seen signs there indicating that the public should not enter, or any other kind of signs.
Allison's account of the accident was consistent with Aronson's. There were no warning signs, barriers or fences at the location that day. Although Allison had been to the location many times, he did not recall saying anything about the need to watch out for the drop-off when emerging from the pipe. He was the first member of the group to reach the concrete apron, which he described as about 20 feet wide and 20 feet long. (A Caltrans engineer testified that the distance from the pipe edge to the end of the apron was actually 10 to 15 feet.) He saw the algae, which was very slippery and something less than half an inch thick, covering most of the surface of the apron. He saw this a minute or so before the others emerged from the pipe, but did not warn them. One of the other apprentices emerged and stood on the apron. Next, Allison heard splashing and footsteps of someone moving faster than a walk, perhaps skipping or possibly running, toward the end of the pipe. Thinking someone must be approaching too fast, he turned and shouted, "Stop." Just as he did so, he saw Ryan slipping and falling onto the apron. Ryan landed on his side, rolled onto his stomach, and reached out with his hands. Then Allison saw him slide across the apron and over the edge.
Counsel read out some deposition testimony by Sarah Jamison, one of the other apprentices. Jamison stated that Ryan passed her inside the pipe. He was moving at "a slow run," or "skipping would be the most accurate way to describe it in that he wasn't full-out sprinting, nor was he walking." She did not hear him coming and was startled as he passed. He passed her quickly and she "was thinking he was going really fast." Unlike Jamison, Ryan was going through the water in the middle of the floor and making it splash, instead of avoiding it by placing his feet on either side. When he reached the apron, she saw him fall down and slide over the edge. She "had eye contact with him when he went over." He "looked really surprised." She had not been told that there was a drop-off at the end of the culvert.
The physician who performed the autopsy on Ryan's body testified at trial. He found fractures of the jawbone, both femurs, and both knees, bleeding inside the skull, swelling of the brain, and lacerations of the spleen and both lungs. The cause of death was multiple injuries to the head, chest and abdomen, resulting from the fall. A blood screening for drugs and alcohol was negative.
Joellen Gill, a human factors engineer, testified as an expert for the plaintiffs. She reviewed records and deposition transcripts and examined the Caltrans property where the accident happened. Summarizing her opinions, she stated:
"My assessment of this location was that it was an extremely dangerous condition because it created a substantial risk of injury for members of the general public when using this property with reasonable care and in a foreseeable manner."
Two main factors supported this assessment: the height of the drop-off and the slippery condition of the concrete apron.
The plans for the structure showed that when it was built in 1953, the drop-off was between three and 10 feet. The ground beneath it was soft dirt. By the time Gill inspected the site, the drop-off was 27 feet straight down from the center of the apron, 36 feet straight down from the right side of the apron, and 50 feet from a point five feet beyond the edge of the apron. The ground is jagged rock, which a person falling would strike at a speed approaching 30 miles per hour.
The erosion of the earth beneath the apron also caused the apron to increase in slope. The plans allowed for a maximum slope of 2.3 degrees, but the slope had steepened to 3.5 degrees. The pipe also had increased in slope, from a designed maximum of 0.5 degrees to the present 1.3 degrees.
Regarding the condition of the apron's surface, Gill stated, "Arguably, one of the most important parameters to keep a walking surface safe is its ability to resist slipping." The apron had become slippery because of the moss and algae that had grown there in the water the culvert carries from the hillside. This growth was much more extensive on the apron than inside the pipe because of the apron's exposure to sunlight. As a result, a person walking through the pipe would experience a sudden increase in slipperiness when exiting onto the apron. Gill cited slip-resistance studies showing that moss and algae growth are 10 times more slippery than ice. She said this was consistent with testimony that the surface was like 100 slippery banana peels.
The lighting conditions, which Gill measured with a light meter, also contributed to the dangerous condition, in her opinion. Inside the pipe, which was 160 feet long, it was quite dark. The sunlight at the end was many times brighter. Through a phenomenon called phototropism, a person inside the pipe would focus his or her eyes on the light at the end and not focus on the area immediately in front of him or her. At the same time, what could be seen at the end from inside was only the green hillside; there were no visual cues of the kinds people rely on for safety. The drop-off was not visible from inside the pipe.
A Caltrans engineer who studied the plans said it was 136 feet long.
Responding to a hypothetical question, Gill testified that if Caltrans employees knew of the erosion creating the large drop-off, and were aware for many years that the location was being used by members of the public who parked there, got out to take pictures, and walked through the pipe and onto the apron, then the uses of the property that placed people in danger were foreseeable and Caltrans should have taken measures to make the location safer. Measures that could have been taken included placing barriers to keep people from entering the culvert, placing barriers to prevent them from falling off the edge, and installing signage warning of the hazard. None of this was done.
Gill formed the opinion that, in light of the conditions at the site, Ryan's conduct in approaching the apron was not unreasonable, he could not have anticipated the hazard, and there was no basis for blaming him for the accident. Plaintiffs' counsel made several attempts to elicit this opinion, but a relevance objection by Caltrans' attorney was sustained each time. The opinion came in anyway, however, when Caltrans' attorney asked on cross-examination, "And then in your viewpoint, Ryan Broderick has no culpability in this matter whatsoever?" Gill answered, "That is correct." Responding to a follow-up question, she opined that it was not unreasonable to skip or jog through a long tunnel when there were no cues to indicate danger.
Edward Ruzak, a civil and traffic engineer, also testified as an expert for plaintiffs. He reviewed records and deposition transcripts and inspected the site. He had familiarity with Caltrans, having once worked there and afterward having testified as an expert on its behalf about 150 times.
Ruzak's testimony was similar to Gill's. Summarizing his opinions, he stated:
"I felt that there was definitely public use at this particular location and that the conditions that were there created a substantial risk of injury to the user and the public, even with the public basically using reasonable care. And it was a foreseeable manner that that particular location would be used."
At the pullout, people parked their cars and walked into the adjacent area to look at a waterfall and take pictures. The stone watercourse leading to the pipe was a "nice area to walk to." He considered it obvious that the public was using the area and had access to the dangerous drop-off. Answering a hypothetical question, Ruzak stated that if Caltrans employees knew members of the public were using the location, they would know there was a danger that people could be hurt or killed when they went through the pipe onto the apron. Maintenance workers observing the situation would have a responsibility to tell their superiors. Their superiors could then install fencing, signage, or barriers. But nothing was done. This was "a total failure on their part." Because Caltrans "failed to maintain that situation over many, many years," it "created the risk" and "increased the risk."
The drop-off was "a concealed situation," a "concealed condition." It was not apparent from inside the pipe.
Caltrans had no system for keeping records of pedestrian injuries taking place in roadside locations such as the one at issue here. Ruzak said this was a "failure" because it stood in the way of identifying and remediating hazards and thereby preventing foreseeable accidents.
Ruzak opined that it was reasonable for members of the public to use the location, but their reasonable use exposed them to a concealed hazard; resulting accidents were foreseeable for Caltrans:
"[P]eople from all walks of life and areas are coming out to this beautiful area, scenic highway. Pullout. You are looking at things. When we do have water in California, there's a nice waterfall that flows there, and it's an attractive area to go to.
"And then you have these other views, which is a view of the valley that you can certainly see from the pipe. So it's inviting me to go through; yet, it's inviting me to go into this concealed drop-off situation where I can get killed.
"And then, without the maintenance of it and fixing it up ... you are putting me at an increased risk of injury in that particular area.
"And it's a substantial factor and a potential for an accident. It's foreseeable. It's going to happen, and it did."
On cross-examination, Ruzak testified that there was nothing unreasonable about a young person skipping or running in the pipe, since the drop-off was concealed. "Look, it's a lovely scenic area you provided for me. Why not? It's natural behavior for a person. That's what I'm saying, that's reasonable," he testified. Further, it was foreseeable to Caltrans that this behavior would happen.
Nine Caltrans employees testified about the condition of the property. Four of these were engineers. Five were maintenance workers. Four of these nine employees had been designated by Caltrans as persons most qualified to testify about various aspects of the property. These employees' testimony indicated generally that Caltrans staff were aware, prior to the accident, of the public usage of the property and of the drop-off that had been created by erosion over the years. Matthew Mariscal, a maintenance employee designated as the person most qualified to testify about the history of inspection and maintenance of the location at issue, testified that for safety reasons, he would not want anyone, even his staff, to go onto the concrete apron. Brandon Badeker, an engineer designated as the person most qualified to testify about the erosion of the hillside below the apron, stated that the erosion at that location was the worst he had seen in his career.
The following stipulation was read to the jury:
"The parties in this matter stipulate to the following matters:
"Caltrans owned and controlled State Route 140, the pullout, the drainage channel, the culvert, the concrete apron, and the area adjacent to it and below the apron on April 30, [2010].
"Caltrans had sufficient funds and resources to install a fence or sign at the subject location if it is determined either were necessary prior to April 30, 2010. It was feasible for Caltrans to install ... a fence or sign at the subject location if it determined either were necessary prior to April 30, 2010."
After plaintiffs finished presenting their evidence, Caltrans made an oral motion for nonsuit, stating two grounds. First, Caltrans contended that plaintiffs had failed to establish the presence of a dangerous condition as that term is defined by Government Code section 830, subdivision (a). Second, Caltrans claimed the evidence established the defense of primary assumption of risk. Plaintiffs submitted written opposition to the motion. The court stated it would take about an hour and return with a ruling. It returned and made its oral ruling as follows:
"Well, I've read as much as I can. I considered the arguments of counsel. And my understanding and review of the evidence has been presented primarily from my notes. [¶] ... [¶] As to Caltrans, it's my finding that the plaintiff has failed to establish a dangerousness under the statute; and therefore, there's a lack of evidence as to dangerous condition under the statute.
"I also find that there was a primary assumption of risk, plus no evidence of due care was established. I, therefore, grant nonsuit in that matter."
There was no written ruling.
After the nonsuit was granted, Caltrans filed a motion for attorneys' fees and costs under Code of Civil Procedure section 1038. Under that statute, if a plaintiff brings an action under the Government Claims Act, and the government defendant prevails on a motion for judgment, summary judgment, directed verdict, or nonsuit, the plaintiff is subject to a motion for defense costs, including attorneys' fees. The motion is to be granted if the action "was not brought in good faith and with reasonable cause." (Code Civ. Proc., § 1038.)
In their motion papers, Caltrans argued that Ryan's parents lacked subjective good faith in bringing the lawsuit, not because they did not subjectively believe Caltrans was liable, but because they did believe this:
"This court was made aware of plaintiffs' subjective state of mind of bad faith when Caltrans and its co-defendants sought to exclude the testimony of plaintiffs' expert Dr. Lester Zackler. Plaintiffs sought to have Dr. Zackler testify about their loss of care, comfort and society due to decedent's death. As part of the motion, excerpts of Dr. Zackler's deposition testimony identified plaintiffs' subjective belief about the lawsuit—the inability to accept decedent contributed to or caused his death because of his brash decision to run through the culvert.... Plaintiffs' demeanor during their testimony at trial also evidenced an inability to accept decedent bore any fault.
"Further evidence of plaintiffs' bad faith is in their opening statement. Throughout it, plaintiffs suggested Caltrans would not accept responsibility and will blame decedent for his unfortunate demise.... These statements evidence the subjective mindset of plaintiffs—Caltrans is the one responsible and not decedent. These statements show plaintiffs' subjective intent for bringing their suit against Caltrans—decedent had no responsibility for his own death. Thus, there was no good faith basis to bring, let alone maintain, the subject lawsuit."
Caltrans' sole argument for the claim that plaintiffs lacked reasonable cause for bringing the action involved a prior incident of a person falling from the same concrete apron that was excluded from evidence. Caltrans had argued successfully that evidence of this incident was inadmissible because it was not substantially similar to Ryan's accident. In the costs motion, Caltrans asserted that plaintiffs knew or should have known during the discovery phase that the prior incident was not substantially similar. In Caltrans' view, the lack of this item of support for plaintiffs' case meant no reasonable attorney could believe there was a dangerous condition at the site, despite the other evidence of danger arising from the slippery ledge above the 25 to 50 foot drop-off at the end of the dark, view-obstructing passage.
Without stating any reasoning, the trial court granted the motion for costs and attorneys' fees in the full requested amount of $324,082.09. Judgment was entered on March 2, 2016.
DISCUSSION
I. Nonsuit
Plaintiffs contend that the evidence they presented (1) was sufficient to establish the elements of their cause of action for a dangerous condition of public property, and (2) did not compel the conclusion that this cause of action was defeated by the defense of primary assumption of risk. Therefore, in plaintiffs' view, the trial court erred when it granted the motion for nonsuit based on its disagreement with these propositions. Caltrans argues that the motion was correctly granted on both bases and could correctly have been granted on either basis alone. We agree with plaintiffs.
A. Standards for nonsuit and standard of review
A motion for judgment of nonsuit is a motion made after the plaintiff's opening statement, or after the plaintiff has presented his or her evidence. (Code Civ. Proc., § 581c, subd. (a).) The motion concedes the truth of the facts asserted (if made after the opening statement) or shown (if made after the presentation of the plaintiff's evidence), but claims they fail as a matter of law to support the plaintiff's cause of action. (Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1071.)
When the motion is made after the plaintiff has presented his or her evidence, the standards for granting it are the same as the standards for granting a motion for a directed verdict or for reversing a judgment on appeal based on a lack of substantial evidence:
"It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.' [Citations.] [¶] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. [Citation.] [¶] ... [¶] In other words, the function of the trial court on a motion for a directed verdict [or nonsuit] is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a new trial, it may not do so on a motion for a directed verdict [or nonsuit]." (In re Lances' Estate (1932) 216 Cal. 397, 400-401; see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)
The substantial evidence needed to defeat the motion is "evidence that is reasonable, credible and of solid value," "from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) Here, the question is whether plaintiffs presented such evidence in support of each element of their cause of action based on a dangerous condition of public property.
Where the motion for nonsuit is based on an affirmative defense, the question is whether the evidence presented so far compels the conclusion that the defense has been established, regardless of any other evidence that may subsequently be produced. (See Skelton v. Schacht Motor Car Co. (1913) 22 Cal.App. 144, 145-146 [motion properly granted after plaintiff presented evidence establishing existence of settlement agreement that resolved controversy between parties].) In this case, on the issue of primary assumption of risk, the questions are: (1) whether the case presented by plaintiffs established that Ryan was engaged in the type of activity to which the doctrine of primary assumption of risk applies, so that Caltrans had no duty to protect him from the risk of falling inherent in that activity (a question of law, as will be seen), and (2) if so, whether it also established that Caltrans did not increase the risk of falling beyond that inherent in the activity (a question of fact).
We review a judgment of nonsuit de novo, applying the same standards as the trial court. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291; Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.) Only the grounds specified in the trial court by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit. (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)
B. Dangerous condition of public property
Government Code section 835 provides for a cause of action against a public entity for injury caused by a dangerous condition of public property:
"Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
"(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
The definition of notice in Government Code section 835.2 is as follows:
"(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
"(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
"(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
"(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition."
Government Code section 830, subdivision (a) defines "dangerous condition" for purposes of this cause of action: "'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used."
This definition does not require the plaintiff himself or herself to have used due care. The definition of "dangerous condition" is satisfied—regardless of the plaintiff's actual behavior—if the property poses a substantial risk of injury even to persons who are using the property with due care in a reasonably foreseeable manner. In other words, a dangerous condition exists whenever the required risk to these hypothetical persons would exist. Liability thus extends to persons generally, not just those using due care. (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 798-799; Callahan v. City & County of San Francisco (1967) 249 Cal.App.2d 696, 702-703.) A plaintiff's actual lack of due care is accounted for through a separate analysis, namely, that of comparative fault. (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1458-1459; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768-769.)
This has always been the intent of this definition of "dangerous condition." The comments of the Law Revision Commission to Government Code section 830, issued when the Government Claims Act was enacted in 1963, state:
"Although the condition will not be considered dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care, this does not require that the injured person prove that he was free from contributory [now comparative] negligence. Contributory negligence is a matter of defense under subdivision (b) of Section 815. The plaintiff is, however, required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care." (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (2012 ed.) foll. § 830, p. 7.)
The definition also does not require that the reasonably foreseeable careful use be a use for which the property was designed or intended. (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466 ["Although public entities may be held liable for injuries occurring to reasonably foreseeable users of the property, even when the property is used for a purpose for which it is not designed or which is illegal, liability may ensue only if the property creates a substantial risk of injury when it is used with due care," italics added]; Torkelson v. City of Redlands (1961) 198 Cal.App.2d 354, 359 ["In many cases the liability of a public agency for injuries caused by the dangerous condition of its property has been affirmed even though such injury arose out of a use thereof other than that for which it was designed or originally intended."].)
The elements of a cause of action for a dangerous condition of public property may be summarized thus:
(1) The property is owned or controlled by a public entity.
(2) At the time the plaintiff was injured, the property was in a dangerous condition, meaning:
(a) it posed a substantial risk to persons who
(b) used the property with due care
(c) in a reasonably foreseeable manner.
(3) The dangerous condition proximately caused the plaintiff's injury.
(4) The risk of the kind of injury actually incurred was reasonably foreseeable.
(5) The public entity had actual or constructive notice of the dangerous condition, or a public employee negligently or wrongfully created it.
The question on appeal, as to the issue of whether the case could properly be nonsuited on the basis of a failure of proof, is simply whether plaintiffs presented the jury with substantial evidence in support of each element. There is little dispute between the parties on elements (1), (3), (4), or (5). Their discussion focuses on element (2), which was the only element at issue in the nonsuit motion.
The evidence on elements (1), (3), (4), and (5) was ample under the standards for a nonsuit motion. On element (1), public ownership, it is undisputed that Caltrans owned the property. On element (3), causation, there was plentiful testimony indicating that Ryan's death was proximately caused by his falling onto the rocks after approaching the drop-off, of which the view was occluded, and slipping on the algae-covered ledge. (Caltrans inserts a belated argument that Ryan's conduct was the "sole cause" of his death; we will discuss this argument separately below.) On element (4), foreseeability of the risk of the relevant type of injury, the jury could readily find the risk of death by falling was reasonably foreseeable, in light of the description of the property as established by multiple witnesses. On element (5), notice, multiple Caltrans witnesses gave testimony from which the jury could readily find that Caltrans knew or should have known of the condition of the property and the risk it posed.
The evidence for element (2), existence of a dangerous condition as defined by Government Code section 830, subdivision (a), was also well within the requirements of the substantial evidence standard. When considering this evidence, it is important to bear in mind that plaintiffs did not have to prove decedent himself used due care; the question of his negligence is a matter of defense under the doctrine of comparative fault. It is also important to bear in mind that the reasonably foreseeable careful use giving rise to the risk need not be the use for which the property was designed or intended.
The use from which the substantial risk of injury arose was the use of the culvert by members of the public as a place for recreating. The reasonable foreseeability of this use was evidenced by testimony in which Caltrans employees testified to their knowledge of the way the area historically had been used: There was a pullout in the immediate vicinity where members of the public parked; members of the public got out of their cars and walked in the roadside area between the pullout and the culvert, looking at the scenery and taking pictures; the use by members of the public must have extended into the pipe and onto the concrete apron, because there was graffiti in those areas, increasing over the years.
The jury heard testimony from two experts that the condition of the property posed a substantial risk to persons engaging in that reasonably foreseeable use even if they engaged in it with due care. These opinions were based on factors about which all the testimony had been consistent: the concrete apron at the edge of the drop-off was extremely slippery; the view from inside the pipe provided no cues about the drop-off or the slippery surface until a person traversing the pipe was almost upon the slippery surface; the slippery surface sloped toward the drop-off. The jury reasonably could have accepted the experts' opinions.
Caltrans argues that the evidence could not establish that there was substantial risk to pedestrians reasonably foreseeably using the property with due care because the culvert was not intended to be used by pedestrians: "Much of the evidence presented ... defies logic because a culvert is used for the movement of water and not a pedestrian facility. The mere fact that pedestrians or others have been using the culvert for uses other than intended, does not change what its character is." This argument overlooks the settled rule, discussed above, that reasonably foreseeable uses are not limited to uses for which the property was intended or designed. The "mere fact" that members of the public were known to Caltrans to be using the property recreationally, and not for its intended purpose, may not "change" the property's "character," but it can support a finding that the recreational use was reasonably foreseeable. (See, e.g., Torkelson v. City of Redlands, supra, 198 Cal.App.2d at p. 361 [use of ditches and storm drain by children playing was reasonably foreseeable where public entity had knowledge of use ongoing for years].)
Caltrans also avers that "the nature of the facility clearly illustrated to any one attempting to use it the necessary care to use while there." This appears to mean that any person using due care would be alerted to the danger of falling in time to avoid it. As we have seen, however, there was substantial evidence in the form of expert testimony that this was not the case. Even without the expert testimony, the jury could reasonably have inferred that a slippery ledge over a high drop-off onto jagged rocks at the end of a dark passageway presented a substantial risk of injury even to a person who proceeded through the passageway with due care.
Caltrans next argues that "running, jogging, skipping, and splashing through a culvert with water in it" was not shown to be a reasonably foreseeable careful use, and it was "preposterous" and "nonsensical" if plaintiffs' experts were claiming otherwise. This argument overlooks the settled rule, discussed above, that in determining whether a dangerous condition of public property exists, the factfinder need not consider whether the injured person's actual conduct was careful and reasonably foreseeable, but must consider whether there is a substantial risk of injury to any persons who would use the property in a careful and reasonably foreseeable manner. The injured person's actual conduct need not be analyzed at all in the determination of whether a dangerous condition existed within the meaning of Government Code section 830, subdivision (a). It is relevant to the defense of comparative negligence, and it also can be relevant to causation (element (3) in the list above) and the question of whether the risk of the kind of injury actually incurred was reasonably foreseeable (element (4)). But a lack of due care on the injured person's part does not show the nonexistence of the dangerous condition.
Caltrans' brief includes a footnote denying that Caltrans is overlooking this rule, but the brief goes on to overlook the rule anyway.
Further, while it was not necessary for plaintiffs to present evidence that a person approaching the end of the pipe rapidly, as Ryan apparently did, was exercising due care and acting in a reasonably foreseeable manner, they did present such evidence. Their experts both opined that, because the hazard did not become detectable to a person until the person was a short distance from the edge and nearly upon the slippery surface, it was not unreasonable to fail to slow down in time to avoid falling; and Caltrans, being familiar with the condition of the property and the ongoing public use, could reasonably foresee that some people would approach too fast. These opinions (which were neither preposterous nor nonsensical) supported the view that a dangerous condition existed, although plaintiffs could have shown a dangerous condition without them, solely by reference to hypothetical careful users.
For all these reasons, we conclude that the trial court erred when it found plaintiffs failed to present substantial evidence of all the elements of their cause of action for a dangerous condition of public property. The nonsuit motion could not properly be granted on this ground.
C. Primary assumption of risk
The core idea of the doctrine of primary assumption of risk, as detailed below, is that in those situations where the doctrine applies, the defendant has no duty to use due care to protect the plaintiff from risks of injury inherent in a sporting or recreational activity. In these situations, the doctrine is a complete defense to a negligence cause of action based on an injury arising from those inherent risks. A baseball player has no liability for injuries caused to another player by a negligently thrown ball, because being hit by a negligently thrown ball is a risk inherent in playing baseball. An arena owner has no negligence liability to a spectator struck by a hockey puck, unless an act or omission of the owner created a risk exceeding the risk inherent in watching a hockey game. The judicial adoption of the doctrine has been justified by the notion that if negligence liability exists for injuries arising from risks inherent in sporting or recreational activities, exposure to this liability could render the activities economically infeasible and lead to their chilling, alteration or extinction.
The doctrine of primary assumption of risk was adopted in California by Knight v. Jewett (1992) 3 Cal.4th 296 (Knight). That case involved injuries sustained by a player in an informal game of touch football, at the hands of another player during a play. (Id. at pp. 300-301.) Our Supreme Court held that liability was barred and summary judgment for the defense properly granted. (Id. at pp. 320-321.) A three-justice plurality explained that the defendant's action in causing the injury was negligent at most, and the risk of injury arising from such negligence was inherent in football, even informal touch football. Even if the defendant's play was reckless, it was not sufficiently reckless to be outside the range of activity ordinarily involved in the sport. (Ibid.) This was a case of primary assumption of risk because players in such a game have no duty to protect one another from the risks inherent in the game. The nature of the sport determines the scope of the inherent risks, and this scope in turn defines the class of injuries for which liability is barred. (Id. at pp. 308-310.)
The Supreme Court offered an economic justification for this approach, explaining that exposure to damages liability would deter participation in sports if a complete defense were not available in cases of this kind:
"[I]n the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Knight, supra, 3 Cal.4th at p. 318.)
Knight held that there are other cases involving only secondary assumption of the risk. In those cases, the plaintiff has sustained injury by encountering known risks not inherent in any activity in which the plaintiff was engaged, risks that may have been created by the defendant's negligence. In those cases, there is no complete bar to liability, and responsibility for the injury is allocated between the plaintiff and defendant under comparative fault principles. (Knight, supra, 3 Cal.4th at p. 310.)
The Knight court summarized its conclusions as follows:
"In cases involving 'primary assumption of risk'—where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine ... operate[s] as a complete bar to the plaintiff's recovery. In cases involving 'secondary assumption of risk'—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." (Knight, supra, 3 Cal. 4th at pp. 314-315.)
In Ford v. Gouin (1992) 3 Cal.4th 339 (Ford), a companion case to Knight, the principles of Knight were applied to a noncompetitive activity. The plaintiff, a water skier, sued the driver of his tow boat after the driver's steering allegedly caused the plaintiff to strike his head on a tree branch extending from a river bank. Our Supreme Court upheld summary judgment for the driver. (Ford, supra, 3 Cal.4th at pp. 342-344.) The lead opinion stated that the driver's steering involved ordinary negligence at most, and under the reasoning of Knight, the doctrine of primary assumption of risk provided a complete defense. Water skiing is a "noncompetitive but active sports activity," and imposition of a duty of care to avoid negligent driving would inhibit participation in it. (Ford, supra, 3 Cal.4th at p. 345.)
Although Knight and Ford involved co-participants in sports, their principles have been applied in situations where the parties had different roles, such as spectator and property owner or participant and event organizer. (See, e.g., Balthazor v. Little League Baseball (1998) 62 Cal.App.4th 47 [little league player vs. league]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112 [spectator vs. baseball team and league]; Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578 [rider vs. equestrian ranch operator]; Nemarnik v. Los Angeles Kings Hockey Club, L.P. (2002) 103 Cal.App.4th 631 [spectator vs. hockey team].)
The principles of Knight and Ford have been applied to bar negligence liability for injuries arising from risks inherent in a wide range of the kinds of competitive and noncompetitive activities Ford referred to as "active sports." (Ford, supra, 3 Cal.4th at p. 345.) (See, e.g., Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [sailing]; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248 [river rafting]; Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566 ([jet skiing]); Staten v. Superior Court (1996) 45 Cal.App.4th 1628 [figure skating]; Mastro v. Petrick (2001) 93 Cal.App.4th 83 [skiing and snowboarding]; Moser v. Ratinoff (2003) 105 Cal.App.4th 1211 [organized, noncompetitive bicycle ride]; Mosca v. Lichtenwalter (1997) [sportfishing]; Record v. Reason (1999) 73 Cal.App.4th 472 [tubing (riding an inner tube towed by a boat)].)
On activities that might not ordinarily be viewed as sports at all, even though they could be described as "active," Court of Appeal cases have been divided. (See Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328 [recreational dancing not a potentially dangerous activity or sport; primary assumption of risk does not apply]; Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 68 [child riding scooter on sidewalk and not part of contest or test of ability not engaged in activity covered by primary assumption]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 800 [primary assumption not applicable to negligence claim against driver by passenger who fell from ski boat]; Amezcua v. Los Angeles Harley-Davidson (2011) 200 Cal.App.4th 217, 231-232 [primary assumption barred claim of rider and passenger injured in motorcycle procession against organizer of procession]; Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 661 [primary assumption defense applied to claim for injury sustained by participant in fire ritual at Burning Man festival].)
Without disapproving the results in any of the above cases, our Supreme Court in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1157, embraced a broad classification of "physical recreation," not just sports, as the category of activities to which the defense of primary assumption of risk can be applied. The court stated:
"[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities 'involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.' [Citation.] [¶] ... [¶] The policy behind primary assumption of risk applies squarely to injuries from physical recreation, whether in sports or nonsport activities. Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity's inherent risks would threaten the activity's very existence and nature. In thus concluding, we do not 'expand the doctrine to any activity with an inherent risk,' as the majority below cautioned. While inherent risks exist, for example, in travel on the streets and highways and in many workplaces, ... 'the primary assumption of risk doctrine in its modern, post-Knight construction is considerably narrower in its application.' [Citation.] But active recreation, because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. And participation in recreational activity, however valuable to one's health and spirit, is voluntary in a manner employment and daily transportation are not." (Nalwa, supra, 55 Cal.4th at pp. 1156-1157.)
On the basis of this reasoning, the court held that the doctrine applied to injuries the plaintiff sustained in a collision in a bumper car ride. (Nalwa, supra, 55 Cal.4th at pp. 1157-1158.)
Even where the primary assumption defense applies to the activity the plaintiff was engaged in, it might not apply to the particular risk to which the defendant's negligent conduct exposed the plaintiff. The risks covered by the primary assumption defense are only those inherent in the activity in question. The Supreme Court explained this in Knight, using skiing as an example:
"Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.
Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant." (Knight, supra, 3 Cal.4th at pp. 315-316.)
If the plaintiff's injury arose from an increased risk, not the inherent risks, then primary assumption does not bar the claim and the problem is again one of comparative fault (if the plaintiff is also at fault). In Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, for example, the plaintiff was a skier at a ski resort who was injured when he skied into a post supporting a sign indicating the way to a chair lift. The sign was oriented to face skiers coming down the slope. The plaintiff was skiing roughly perpendicular to the slope, heading toward a trail that led to the chair lift and approaching the sign edge-on; he could not see the sign or post until he was too close to stop because the edge of the sign was narrow and the post was black, blending in with the shadows and trees in the background. The trial court ruled on summary judgment that primary assumption of risk was a complete defense for the ski resort. (Id. at pp. 1313-1314.) The Court of Appeal reversed. It held that skiing into a signpost under conditions like these was not an inherent risk of the sport and the ski resort increased the risk by arranging the sign as it did. "When a ski area puts signs in a ski run ... it has a duty to mark the signs so they are plainly visible from all angles to skiers who are skiing on the run. Otherwise, the ski area, by an affirmative act, significantly increases the risk of harm without enhancing the sport. Conversely, making the sign adequately visible has no deleterious effect on the sport." (Id. at p. 1317.) In opposing summary judgment, the plaintiff presented evidence that the sign could have been made visible from all angles without any such deleterious effect. (Id. at pp. 1317-1318.) The appellate court held that the evidence presented in the parties' summary judgment papers showed that the defense of primary assumption of risk was inapplicable, so the motion should have been denied; whether secondary assumption of risk would provide a partial defense (i.e., whether the skier was partly at fault) was a question of fact reserved for trial. (Id. at p. 1318.)
The case law contains numerous other examples of a defendant increasing the risks beyond those inherent in the activity, rendering the primary assumption defense inapplicable. (See, e.g., Bush v. Parents Without Partners, supra, 17 Cal.App.4th at p. 329 [even if falling is inherent risk of social dancing, defendant increased risk by placing slippery substance on floor]; Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1396 [risk arising from other skier skiing while drunk not inherent in skiing]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134-135 [primary assumption of risk would not protect golf course owner from suit by golfer struck by ball if golfer could show course design increased risk]; Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 565-566 [injury to discus thrower arose from non-inherent risk where other thrower threw without checking if target area was clear]; Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1291-1292 [negligent maintenance resulting in sticky treadmill surface causing injury to gym member not risk inherent in working out at gym].)
There is a procedural question regarding how to determine whether an injury arose from a risk inherent in an activity or from a non-inherent, increased risk created by a defendant, and thus whether the defendant had a duty to protect the plaintiff from it. (The significance of this question for the present case will become apparent in our analysis below.) Knight held that "the question of the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury." (Knight, supra, 3 Cal.4th at p. 313.) Does this mean the trial court must decide as a matter of law whether the risk that led to the injury was inherent in the activity or was instead a result of a defendant's action or omission increasing the risk? Or must the jury decide whether the injury arose from an inherent or a non-inherent risk?
One case, Staten v. Superior Court, supra, 45 Cal.App.4th 1628 (Staten), considered this question in the context of the admissibility of expert testimony on risks inherent in a sport, figure skating. The Court of Appeal held that because duty is a question of law according to Knight, and inherent risk determines the scope of duty in the context of primary assumption of risk, the question of whether an injury was caused by a risk that is inherent or by an increased risk is one of law for the trial judge. (Staten, supra, 45 Cal.App.4th at pp. 1633-1635.) Further, according to Staten, trial courts must reach their conclusions on this question based on "the common knowledge of judges," and the rule against expert opinions on questions of law means experts' testimony about the risks inherent in activities is inadmissible. The Staten court observed that this conclusion gives rise to difficulties, since judges cannot be expected to know all the risks inherent in every activity to which primary assumption of risk might apply. (Id. at p. 1635.) It laid the blame for these difficulties on Knight, which it criticized as having "crammed a square peg of fact into the round hole of legal duty." (Staten, supra, 45 Cal.App.4th at p. 1635.)
Numerous other cases, by contrast, have concluded that the question of whether an injury arose from an inherent risk or was the result of a defendant increasing the risk was a triable question of fact precluding summary judgment. (See, e.g., Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 715 [whether design of aluminum bat increased risk of injury to pitcher hit by ball beyond risks inherent in baseball was triable question of fact precluding summary judgment]; Lowe v. California League of Prof. Baseball, supra, 56 Cal.App.4th at p. 114 [whether antics of costumed mascot increased risk of being struck by foul ball, beyond that inherent in baseball spectatorship, by distracting spectator, was triable question of fact precluding summary judgment]; Capri v. L.A. Fitness Inter. LLC (2006) 136 Cal.App.4th 1078, 1088-1089 [whether slipping and falling on pool deck allowed to become slippery with algae is inherent risk of swimming was "at least" a triable question of fact precluding summary judgment]; Luna v. Vela (2008) 169 Cal.App.4th 102, 113-114 [tripping over tie line supporting net pole was inherent risk of volleyball, but triable issue of fact precluding summary judgment existed as to whether host increased risk by manner of placing line; "if triable issues of material fact exist on the question of breach of that limited duty [not to increase the risks beyond those inherent in the activity], the matter should be resolved by the trier of fact, not the court as a matter of law"].)
In our view, the solution to this conundrum is as follows: Whether the activity in question is a form of physical recreation of which each participant assumes the inherent risks—i.e., the type of activity to which the primary assumption doctrine applies when injury arises from the inherent risks—is a question of law. In other words, the court must decide as a matter of law whether: (1) primary assumption of risk is potentially a complete defense in the case because the activity in question is a form of physical recreation from which certain risks cannot be removed without altering its fundamental nature, like baseball or bumper-car riding; or, on the other hand, (2) primary assumption of risk is not even potentially applicable because the activity is not such a form of physical recreation, but is instead more comparable to employment or daily transportation. If primary assumption of risk is potentially applicable, then there is a further question: Did the plaintiff's injury arise from the activity's inherent risks or from an increased risk caused by the defendant? This second question is a question of fact: Given the court's legal determination that the activity has certain risks from which the defendant has no duty to protect the plaintiff, was the risk that led to the injury in fact one of those, or was it an additional or increased risk created by the defendant?
Suppose, for example, that during a baseball game, a fielder is injured in a collision with a baserunner; the fielder sues the baserunner. The trial court would rule as a matter of law that primary assumption of risk is potentially a complete defense because baseball is an activity covered by the defense. Now suppose the evidence shows the collision happened when the baserunner departed from the base path by several yards and ran into the fielder in order to break up a play. The question of whether the fielder's injury arose from the risk of collisions inherent in baseball, or instead from a risk over and above the inherent risk created by the baserunner's detour, would be a question of fact, to be answered perhaps with the assistance of expert testimony. If the factfinder determined that the injury did not arise from an inherent risk, primary assumption would not apply to defeat the fielder's cause of action.
Staten is thus mistaken to the extent it implies the appellate courts erred in those cases in which it was held that the inherent or non-inherent character of the risk that gave rise to the injury was a question of fact for the jury. That an activity has inherent risks that are covered by the primary assumption doctrine is a determination of law, but which risks these are and whether the plaintiff's injury flowed from them or from others are questions of fact. (It follows that Staten is also mistaken in its holding that expert opinion on whether a given risk is inherent in an activity cannot be admitted because it is tantamount to expert opinion on a question of law.)
Our view that increase in risk is a question for the trier of fact is in accord with the analysis in Luna v. Vela, supra, 169 Cal.App.4th 102. There, as indicated above, the appellate court held that summary judgment was improper because there was a triable question of fact whether the defendant increased the risks inherent in volleyball by the manner in which he placed the tie lines securing the poles that supported the net, over which the plaintiff tripped. (Id. at pp. 112-113.) The court stated: "Although we recognize the Court of Appeal decisions specifically addressing the point are in conflict, we believe resolving this issue is not a matter of further defining Vela's duty, which would be a question of law for the court. Rather, it requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case—the traditional role of the trier of fact." (Id. at p. 112.)
Luna v. Vela, supra, 169 Cal.App.4th at p. 113, listed some cases besides Staten that held the increased risk question to be one of law for the trial judge: Huff v. Wilkins (2006) 138 Cal.App.4th 732, 745 ["it is the trial court's province to determine whether defendants breached their duty not to increase the inherent risk of a collision [in the sport of off-roading], and it should hold a hearing for this purpose before impaneling a jury"]; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 ["[i]t is for the court to decide ... whether the defendant has increased the risks of the activity beyond the risks inherent in the sport"]; Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995, fn. 23, [indicating it is for the court to determine whether defendant's conduct increased the risk inherent in participating in a particular sport, but that trial court may receive expert testimony on the customary practices in the sport to make that determination].
As the Luna court observed, this approach is supported by Shin v. Ahn (2007) 42 Cal.4th 482. (Luna v. Vela, supra, 169 Cal.App.4th at p. 113.) There, a golfer was injured when another golfer's ball struck him in the head. (Shin v. Ahn, supra, 42 Cal.4th at pp. 486-487.) The Supreme Court held that the primary assumption of risk doctrine applies to golf, but summary judgment for the defense was properly denied. Those participating in sports, including golf, have no duty to protect other participants from the risk of harm inherent in the sport, but they do have a duty not to increase the inherent risk, and consequently not to engage in conduct so reckless that it is totally outside the range of ordinary activity involved in the sport. (Id. at p. 486.) The evidence presented in the summary judgment papers was insufficient to settle the parties' dispute over whether the defendant had acted recklessly by driving his ball when the plaintiff was within range. "This will be a question the jury will ultimately resolve based on a more complete examination of the facts," the court stated. (Id. at p. 500.) This recklessness question is an instance of the more general problem of whether a defendant has increased the risk inherent in the activity at issue, so Shin would appear to stand for the proposition that the latter is a question of fact, not a question of law.
We turn now to the application of the above principles to the present case. To determine whether the trial court could properly grant the nonsuit motion based on primary assumption of risk in this case, we must answer two questions: (1) Did the factual record developed by the time of the motion support the trial court's legal determination that Ryan was, at the time of the accident, engaged in a form of physical recreation that bore inherent risks—risks from which Caltrans had no duty to protect him? (2) If so, did the same factual record compel the conclusion that any reasonable jury would find the accident arose from those inherent risks, not from increased risks created by a dangerous condition on Caltrans' property within the meaning of Government Code section 835? The answer to both questions, as we will explain, is no.
The question whether the activity is a form of physical recreation to which primary assumption of risk can apply is a question of law, as indicated in our discussion above. The trial court must determine what the activity is, whether it is recreational and physical, and whether it has risks that cannot be removed without altering its fundamental nature. By the end of plaintiffs' case at trial here, the court had not been presented with facts sufficient to support answers to these questions favorable to the defense. Based on those facts, the activity might be characterized as traversing or exploring public land, or something similar. Perhaps the activity was "recreational" and "physical," but it was not established that it had any particular risks that cannot be removed without altering its nature. Would the essential nature of this activity be fundamentally altered if warning signs, fences or guard rails were deployed at the site of the accident and other comparably hazardous structures? Some people might traverse or explore public land for the adventure of entering potentially dangerous yet unmarked and unfenced structures, but there was no evidence that Ryan and his group were doing that.
Caltrans relies on testimony that Ryan's mother was told by someone at the Mariposa County Sheriff's Department that Ryan was on a "hike" when he fell, but this word alone, communicated to Ryan's mother by a third party who did not witness the activity, sheds no light on the nature of what Ryan was doing. Caltrans also refers to the activity as "sightseeing," but this word does not single out a specific activity of which we can speak of the inherent risks. Caltrans does not even attempt to explain how an accident of the kind that happened in this case is an inherent risk of "sightseeing."
Caltrans cites Kalter v. Grand Circle Travel (C.D. Cal. 2009) 631 F.Supp.2d 1253, but that case only serves to illustrate the absence from the record in this case of the kind of information that can prove an activity is a form of physical recreation with inherent risks that cannot be removed without altering its fundamental nature. Kalter sued a tour operator after she was injured during a hike on and around the ancient Inca ruins at Machu Picchu in Peru. After the tour guide cautioned Kalter's tour group to use caution due to wet and slippery conditions, Kalter separated from the group and ventured off the established paths in the rain. She got lost, and in an attempt to get up higher to see where she was, she climbed two "floating steps," which were stone protrusions from a vertical stone wall. This was when she fell. (Id. at p. 1256.) Applying California law, the district court granted the tour operator's motion for summary judgment based on primary assumption of risk. (Id. at p. 1258.) It stated:
"Here, Kalter was engaged in the activity of hiking on uneven terrain amongst ancient ruins. Inherent in this activity is the risk that one will fall and become injured. (See [Andia v. Full Service Travel (S.D. Cal. Nov. 29, 2007) No. 06CVO437, 2007 WL 4258634, at *5] (holding that 'falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain'). The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu 'are spread out over steep hillsides with large stone steps and uneven surfaces.' [Citation.] Eliminating tour participants' access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus 'alter the fundamental nature of the activity.'" (Kalter v. Grand Circle Travel, supra, 631 F.Supp.2d at pp. 1257-1258.)
Among other factual distinctions, there was no evidence that Ryan was on a "strenuous hike on steep and uneven terrain," and there was no organized tour, and no ancient ruins a denial of access to which would alter the fundamental nature of the activity.
In a nutshell, it is one thing to say the reasoning underlying Knight militates against negligence liability that would chill participation in (a) the sport of strenuous hiking on steep and uneven terrain, and (b) organized exploration of famous archaeological sites. It is something else to say this about chilling the practice of walking onto roadside public land and encountering drainage structures and the like. As far as the facts before the trial court showed, it is at least as likely that measures to mitigate dangers would enhance that activity.
If the trial had been allowed to continue, perhaps Caltrans would have presented facts on the basis of which it would have been possible to frame the activity as one of physical recreation with inherent risks that could not be removed without altering its fundamental nature, but that did not happen. The record before the court thus did not suffice to support a holding that the complete defense of primary assumption of risk applied.
We turn to the second question: Even if the record had sufficed to allow the court to classify Ryan's activity as a form of physical recreation with risks that could not be removed without altering its nature, there was the further question of whether Ryan's accident arose from those risks or from increased risks caused by Caltrans. This, as discussed above, would be a question of fact. There was no basis in the record before the court upon which this question could properly be taken from the jury. Is the risk of falling into a steep drop-off from a partially concealed, slippery ledge on an engineered structure (if that is the correct way to characterize the risk) an inherent risk of traversing or exploring public land (if that is the correct way to characterize the activity)? We cannot say the trial record contains facts that would compel any reasonable factfinder to give an answer favorable to the defense. If anything, the indications are to the contrary. "The main concern animating inherent risk analysis is the potential for chilling vigorous participation and altering the fundamental nature of a particular" recreational activity. (Zipusch, supra, 155 Cal.App.4th at p. 1292.) It seems unlikely that the fundamental nature of Ryan's activity, however described, would be altered and participation in it chilled if it did not include access to hazardous structures without warnings or barriers. In this respect, this case is analogous to those in which summary judgment could not properly be granted because a triable question of fact remained regarding whether the plaintiff's injury arose from an increased risk caused by the defendant.
It should be noted that injuries caused by natural conditions on unimproved public land, including trails and the like, are not at issue here, so far as public entity liability is concerned. Liability for such injuries is barred by statutory immunities. (See Gov. Code, §§ 831.2 [natural condition immunity], 831.4 [trail immunity]; 5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, §§ 304, 307, pp. 484, 488.)
Caltrans cites Calhoon v. Lewis (2000) 81 Cal.App.4th 108 (Calhoon) and Bertsch v. Mammoth Community Water District (2016) 247 Cal.App.4th 1201 (Bertsch) for the proposition that, despite Knight, Caltrans had no duty to Ryan to avoid increasing the risk of his activity beyond the risks inherent in it. This argument is based on the notion that there was no relationship between Caltrans and Ryan comparable to the relationship between co-participants in an activity (e.g., two skiers) or between a participant and a promoter, organizer or host (e.g., a skier and a ski resort).
In Calhoon and Bertsch, the Courts of Appeal based their holdings on the California Supreme Court's decision in Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456 (Parsons). As we will explain, this line of cases does not support the view that if Ryan was engaged in a form of physical recreation, then Caltrans was absolved of the duty to refrain from maintaining its property in a dangerous condition even if that condition created risks exceeding those inherent in that form of recreation. Parsons does not imply anything of the sort, and to the extent that Calhoon and Bertsch may do so, they misconstrue Parsons.
In Parsons, the plaintiff was riding a horse on a public bridle path that passed behind a restaurant. As the horse and rider rounded a corner and arrived at a point beside the restaurant's parking lot, a truck in the parking lot lifted the restaurant's dumpster and proceeded to empty its contents into the truck with a loud, clattering noise. The horse became frightened and threw the plaintiff, injuring him. (Parsons, supra, 15 Cal.4th at p. 462.) The plaintiff sued the trash disposal company for negligence in the operation of the truck. The defendant successfully moved for summary judgment, arguing that the applicable duty of care did not require it to avoid frightening the horse in the circumstances, and that recovery was barred by the doctrine of primary assumption of risk. The Court of Appeal reversed and the Supreme court granted review. (Id. at pp. 463-464.)
Reversing the Court of Appeal, the Supreme Court made two points. First, there is an established body of negligence case law tailored to the problem of injuries caused when horses are frightened by machinery, according to which "the needs of a modern, industrial society often conflict with and generally must prevail over the delicate sensibilities of horses." (Parsons, supra, 15 Cal.4th at p. 466.) Applying the principles in this body of law and the general principles of tort duty in Rowland v. Christian (1968) 69 Cal.2d 108, the Supreme Court concluded that the defendant had no duty to avoid frightening the horse so long as its driver was operating the truck properly in the manner for which it was designed. (Parsons, supra, 15 Cal.4th at pp. 472-478.)
Second, the discussion in Knight of a defendant's duty to avoid increasing risk inherent in a sport or recreational activity did not apply, even though horseback riding is a sport or recreational activity. The court stated that Knight "offers no support for the proposition that defendants generally owe a duty not to increase the risk inherent in whatever activity plaintiffs happen to be pursuing, regardless of the lack of relationship between defendant and plaintiff." (Parsons, supra, 15 Cal.4th at p. 479.) Instead, Knight requires courts to "examine the question of duty in light of the nature of the defendant's activities and the relationship of the parties to that activity." (Parsons, supra, 15 Cal.4th at p. 482.) The court observed that in Knight, the discussion of increased risk used the example of a ski patron and ski resort, who have an "organized relationship with each other and to a sporting activity." (Parsons, supra, 15 Cal.4th at p. 481.) The court concluded: "[W]hen, as here, no relationship exists between the plaintiff and defendant, and there is no policy reason for imposing a duty upon the defendant to avoid increasing the risk of harm to the plaintiff over that posed by the activity in which the plaintiff happens to be engaged, the defendant has no such duty." (Id. at p. 483.)
In interpreting Parsons, it is important to bear in mind that in that case, there was no need for the defendant to resort to the doctrine of primary assumption of risk because its conduct satisfied the duty of care that was an element of the plaintiff's cause of action, and that was why it was not liable. The plaintiff's cause of action was negligence, but because the situation involved a horse frightened by machinery, the applicable standard of care was the special one the law has established for that situation, and the plaintiff's driver acted with due care under that standard. That standard of care limited the driver's duty, and the fact that the plaintiff was participating in a sport could not, by itself, impose a greater duty even if the driver's conduct created a risk not inherent in the sport. In other words, the driver was not negligent according the applicable standard, and the lack of a sport-related connection between the parties meant he could not be deemed liable in spite of his non-negligence even if he increased the risks inherent in horseback riding.
A different kind of problem arises if the defendant is negligent and also has increased the risks beyond those inherent in the plaintiff's sport or recreational activity. If the parties are suitably related to each other, we would say the defendant is not liable for injury arising from the inherent risks, but is liable if he increased the risk and the injury arose from the increased risk. But what should we say if the parties are not suitably related to each other? We could say the defendant is not liable for the injury to the extent it arose from the inherent risks, but is liable for the injury to the extent it arose from increased risks imposed on the plaintiff by the defendant's negligence. Alternatively, we could say the lack of a suitable relationship between the parties means the primary assumption of risk doctrine does not apply at all, and the defendant is simply liable for injury caused by his negligence.
The one thing we could not say, it seems to us, is that the defendant is not liable for injury arising from the inherent risk because the plaintiff assumed that risk, and also is not liable for increased risk imposed on the plaintiff by his negligence because the parties are not in a suitable relationship to each other. That rule would confer a windfall on the defendant just because the person he happened to injure was engaged in a sport or recreational activity at the time.
This point is simpler than it sounds. Assume that jogging on the sidewalk for exercise is a form of physical recreation to which the doctrine of primary assumption of risk potentially applies. Assume, further, that being run over by a negligent driver during this activity while legally crossing a road at a crosswalk is not a risk inherent in the activity. If a negligent driver runs over a jogger in these circumstances, we would not say the driver is absolved of liability because the jogger assumed the inherent risk, and the lack of a relationship between the parties means the driver is not liable for the increased risk. We would say the driver is liable for his negligence at least to the extent it created risk in excess of the risk inherent in the activity.
Parsons can and should be interpreted as being consistent with this view. On the one hand, it can be read as implying that Knight and its progeny do not apply at all when the plaintiff and defendant do not bear the necessary type of relationship to each other—so that the liability of the driver in the above example would be determined on ordinary negligence principles, without reference to risks assumed by the jogger by virtue of his participation in physical recreation (but potentially with reference to comparative fault). Parsons states: "Knight did not purport to establish the parameters of the duty of care owed by all potential defendants to persons who happen to be engaged in a sport or activity at the time they sustain an injury. In this case, in which defendant had no participatory involvement in the activity undertaken by plaintiff, the decision in Knight does not define whatever duty was owed by defendant to plaintiff. As already noted, the nature and scope of defendant's duty in these circumstances is established by the considerable line of authority addressing the question of a defendant's potential liability for injuries resulting from the frightening of a horse." (Parsons, supra, 15 Cal.4th at pp. 461-462.) This seems to mean that where the parties are unrelated, the controlling principles are those of the underlying legal doctrine that determines liability in the case, not the principles related to assumption of risk as delineated in Knight.
On the other hand, Parsons is open to the interpretation that when the plaintiff and defendant are unrelated, and the defendant (unlike the defendant in Parsons) breaches the standard of care applicable to the plaintiff's cause of action, the defendant is not liable for injuries arising from risks inherent in the plaintiff's sport or recreational activity, but is liable to the extent his negligence created non-inherent risks and those risks gave rise to injury.
In this case, the law required Caltrans not to maintain its property in a dangerous condition as defined by statute. If Caltrans allowed such a condition to exist, but the risk thereby created was equal to or less than the risk inherent in the activity in which Ryan was engaged, then Caltrans had no liability to Ryan, because he, as a participant in the activity, was not among those covered by Caltrans' duty. But if Caltrans' conduct created a dangerous condition of public property and the risk thereby created exceeded the risk inherent in the activity and caused the injury, then Caltrans did breach a duty to Ryan and did incur liability, subject to comparative fault analysis.
Alternatively, the doctrine of inherent and increased risks articulated in Knight is simply irrelevant to the case, because the parties are not related as coparticipants, as participant and host, or anything similar. Instead, the case is controlled by the underlying legal regime created by the Government Code for dangerous conditions of public property, and the doctrine of primary assumption of risk is inapplicable in toto.
The question of whether Parsons means primary assumption of risk is simply irrelevant to this case has not been litigated by the parties either in the trial court or on appeal, and we make no definitive statement about it. (Even the question of whether Ryan and Caltrans did or did not stand in the required kind of relationship to each other has not been litigated in any meaningful way.) It is sufficient for purposes of this appeal to say that Parsons does not mean Caltrans is entitled to have its cake and eat it too, enjoying the benefit of Knight (no liability for injuries arising from inherent risks) while avoiding the burden of it (liability imposed for injuries arising from increased risks). If it is determined on remand that this is a case in which the rule of no liability for injuries arising from inherent risks applies, then it must also be determined whether the condition of the property increased the risks and the increase gave rise to the accident.
We turn to the cases citing Parsons that Caltrans relies on. In Calhoon, the plaintiff was injured when, while skateboarding, he fell and impaled himself on a metal pipe in a planter in his friend's parents' driveway. The plaintiff sued the friend's parents on theories of negligence and premises liability. The Court of Appeal affirmed summary judgment for the defendants. (Calhoon, supra, 81 Cal.App.4th at pp. 110-111.) It held that primary assumption of risk applied because falling is an inherent risk of skateboarding. (Id. at p. 115.) Then, for two reasons, it rejected the argument that the defendants were liable because the pipe in the planter increased the risks beyond those inherent in skateboarding. First, the pipe and planter did not cause the accident. The plaintiff fell while attempting a trick and the pipe was where he happened to land. Second, the parties were not in an organized relationship to each other and the sport within the meaning of Parsons, so the duty not to increase the risk did not apply. (Id. at pp. 116-117.)
In Bertsch, the plaintiffs' decedent died of head injuries after he fell when his skateboard's wheels got hung up on the edge of a manhole cover as he skated downhill on a private road. The plaintiffs sued the owner of the road and the water district responsible for the manhole, on theories of negligence, premises liability, negligent infliction of emotional distress, and dangerous condition of public property. The Court of Appeal affirmed summary judgment for the defense. (Bertsch, supra, 247 Cal.App.4th at pp. 1204-1205.) As in Calhoon, the court concluded that primary assumption of risk applied because skateboarding is a sport and falling is an inherent risk of it. (Id. at p. 1209.) Citing Calhoon, the court further held that the defendants had no duty to use due care not to increase the risks of skateboarding because there was no organized relationship between the defendants and the decedent. (Bertsch, supra, 247 Cal.App.4th at p. 1211.)
To the extent Calhoon and Bertsch reflect the cake-and-eat-it approach discussed above—finding the defense of primary assumption of risk applies and then refusing to consider increase of risk because the parties are unrelated—we decline to follow them. In Parsons the Supreme Court found the defendant had no duty not to increase risk after determining that the case was controlled by common law principles specific to the duty to avoid scaring horses and not the principles of Knight. Calhoon and Bertsch applied the principles of Knight to cut off liability for injuries from inherent risks, and then applied Parsons as a basis for disregarding Knight's holding on increased risk. Parsons does not authorize that approach. (This does not necessarily mean the results in those cases are wrong, however. The existence of miscellaneous common objects to fall on or be knocked off by is part of the inherent risk of skateboarding in streets and driveways (as opposed to, say, skate parks). The defendants did not increase the risks by allowing those obstacles to be present, so the Parsons discussion was unnecessary.)
For all these reasons, the trial court could not properly grant the nonsuit motion based on the conclusion that the defense of primary assumption of risk had been established.
D. Other asserted grounds for nonsuit
A number of other grounds have been asserted in support of the nonsuit judgment, either by the trial court or by Caltrans on appeal. As we have said, a motion for nonsuit can properly be affirmed only on the basis of grounds stated in the motion. The reason for this rule is that if the additional grounds had been included in the motion, the plaintiff might have been able to remedy defects in its proof at that time. (Lawless v. Calaway (1944) 24 Cal.2d 81, 93-94.) This rule alone is reason to reject these other grounds. Further, as we will explain, we would find the other grounds lacked merit even if we considered them.
First, as noted above, the trial court stated that one reason why it was granting the motion was that "no evidence of due care was established." In context, it is clear the court meant plaintiffs had not presented evidence that Ryan used due care, not that hypothetical persons using due care would be exposed to significant risk. The latter, as we have explained, is the proper inquiry for the cause of action based on a dangerous condition of public property. Further, plaintiffs did present expert testimony to the effect that it was not unreasonable to skip or jog through the pipe because the hazard was not visible until one reached the end. Finally, even if Ryan did not use due care, Caltrans could still be liable under comparative fault principles, if the primary assumption defense was inapplicable.
Next, Caltrans now argues that the nonsuit motion could have been granted on the basis of the theory that Ryan was the sole cause of his fall. It cites cases in which it was held that the plaintiff's injuries were caused by his or her deliberate choice to do something obviously dangerous and the purported dangerous condition of the property was not a substantial causative factor. (See, e.g., Milligan v. Golden Gate Bridge Highway & Transp. Dist. (2004) 120 Cal.App.4th 1, 8-9 [plaintiff's decedent decided to commit suicide by jumping off bridge; lack of barrier not a substantial factor].) This case is not similar to those. Ryan did not jump. He slipped and fell by accident. Plaintiffs presented substantial evidence that this happened because of the dangerous condition of Caltrans' property, and that the danger was not readily apparent. A reasonable jury could find the condition of the property was a substantial factor in causing his death.
Citing Government Code section 830.2, Caltrans further argues that there is no liability because the defect was "trivial." Plaintiffs, however, presented evidence on the basis of which a reasonable jury could find that the risk of injury created by the condition of Caltrans' property was substantial.
Government Code section 830.2 provides: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used."
Finally, in a one-sentence footnote, Caltrans asserts that we should affirm the nonsuit based on trail immunity. (Gov. Code, § 831.4.) In addition to not being one of the grounds stated in the nonsuit motion, this argument is forfeited because Caltrans has not presented any meaningful briefing on it to this court. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) And as the structure on which Ryan was injured was not an unpaved road or a paved or unpaved trail, walkway, path or sidewalk, we see no basis for applying this statute. II. Award of costs and attorneys' fees
Government Code section 831.4 provides:
"A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:
"(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.
"(b) Any trail used for the above purposes.
"(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads."
In light of our reversal of the ruling on the nonsuit motion, the award of costs and attorneys' fees under Code of Civil Procedure section 1038 must also be reversed, since Caltrans is no longer a prevailing party and was not successful on a dispositive motion. Ordinarily, no more would need to be said, but in this instance, the nature of the error warrants comment.
In agreeing with Caltrans' contentions that plaintiffs' lawsuit was not brought with reasonable cause and in good faith, the trial court was manifestly wrong. An action is brought without reasonable cause if no reasonable attorney would have believed it was tenable. (Suarez v. City of Corona (2014) 229 Cal.App.4th 325, 336.) The sole argument Caltrans made on the reasonable cause element was that plaintiffs' prior accident evidence had been ruled inadmissible. But there is no rule that a dangerous condition of public property cannot be proved unless there is evidence of a prior accident, and the plaintiffs presented ample other evidence of the hazardous nature of the partially-concealed slippery ledge above the high drop-off. At trial, plaintiffs presented substantial evidence in support of each element of their cause of action. It was far from clear, at the time the nonsuit motion was decided, that primary assumption of risk would provide Caltrans a complete defense, and it remains far from clear now. The conclusion that the cause of action was viable was eminently reasonable.
On good faith, matters are even more problematic. A party brings and maintains an action in good faith if he or she subjectively believes the action is justifiable under the facts and law. This is a factual question and there must be substantial evidence to support a finding of bad faith. (Hall v. Regents of University of California (1996) 43 Cal.App.4th 1580, 1586.) Caltrans' only argument, at trial and now, is that the action was not brought in good faith because Ryan's mother had an unshakeable conviction that defendants were solely at fault. This is, of course, the very opposite of bad faith. Caltrans had to prove plaintiffs did not subjectively believe their claim was valid, not that they were deeply convinced it was. There was simply no evidence that they lacked the necessary subjective belief in the validity of their claim.
The trial court did not state a basis for its ruling, so it is possible it relied on the reasonable-cause determination alone. However, as we cannot be certain this is so, we are compelled to address the bad faith ground.
Code of Civil Procedure section 1038 was enacted to discourage frivolous litigation against public entities by giving them an alternative to an action for malicious prosecution, which is constitutionally proscribed for them. (Gamble v. Los Angeles Dept. of Water & Power (2002) 97 Cal.App.4th 253, 258-259.) Its purpose is not to scare citizens off from bringing tenable claims against their government, or to punish them for maintaining such claims. When a family files and maintains a suit against the state over the death of a loved one, and does so in good faith, with solid evidence, and against a defense that may be colorable but is by no means clearly applicable, it is a serious miscarriage of justice for that family to find itself saddled with a six-figure judgment for the state's defense costs. III. Evidentiary rulings
Plaintiffs contend that the trial court made a number of erroneous rulings excluding evidence they wished to present at trial. We agree with plaintiffs on several points. As we have said, it is unnecessary to address these rulings, since we are reversing the judgment for other reasons. We have exercised our discretion to address them anyway, however, so that similar errors can be avoided if the case is retried.
Plaintiffs focus on three areas. First, the court granted Caltrans' motion in limine No. 1 to exclude evidence of a prior incident in which someone fell off the same concrete apron six years earlier. Second, the court sustained Caltrans' objections to multiple portions of the deposition testimony of Ronald Nelson, whom Caltrans had designated as the person most qualified to testify about the construction, design and modification of the culvert. Next, the court granted Caltrans' motion in limine No. 9, barring all witnesses and counsel from referring to the property as dangerous or saying it could be made safer, unless they made reference at the same time to the statutory definition of a dangerous condition of public property. During the trial, consistent with the ruling on motion in limine No. 9, the court sustained numerous objections to the testimony of Caltrans' witnesses regarding the dangers at the site. Finally, the court granted Caltrans' motion in limine No. 15, barring any use at trial of the term "reasonably foreseeable," unless the speaker made reference to "due care" at the same time. We will discuss each of these rulings in turn.
A. Prior incident
John Valentine Moore signed a declaration stating that in June 2004, he was 20 years old and visited the culvert at issue in this case. He had been there several times before and observed teenagers and young adults hanging out there. During his visit in June 2004, he fell off the concrete apron and into the ravine, fracturing his skull in many places and breaking several other bones. He remained in the ravine for several days before others found him and summoned emergency personnel. He believed a barrier could have prevented his fall.
Caltrans obtained a statement from Moore as part of the present litigation. He said he had often been to the culvert with groups of people on weekends and was there with a group of about 14 people the day he fell, "hanging out and kind of partying all day." He drank alcohol, smoked marijuana, and believed he took "psychedelic mushrooms" as the night progressed. Around 3:00 or 4:00 in the morning, after becoming "severely intoxicated," he walked off the edge of the concrete apron. He had walked toward the end of the apron with the intention of climbing over its side and onto a narrow path that ran parallel to the highway, but in his intoxicated state, he failed to take the right direction and fell off the end. As he said, "I blacked out and just straight walked off the edge instead of turning to the right to go to the side path." He and his friends had been aware that the ledge was dangerous and had talked about how someone falling off might not survive. They believed they were not "supposed to be there" and used the location because they thought it "kept the cops from finding where we were." He considered the fall to be all his own fault.
Caltrans' motion in limine No. 1 asked the court to exclude from the trial any reference to Moore's fall. It argued that the prior incident was not relevant to show a dangerous condition because it was not substantially similar to the incident in this case. In their opposition to the motion, the plaintiffs argued that the incident was sufficiently similar to be relevant to the existence of a dangerous condition. Further, it was relevant to the question of whether Caltrans had notice of the condition of the property. The plaintiffs attached copies of deposition transcript pages in which witnesses indicated that a Caltrans employee and some other state employees knew of Moore's fall around the time it happened.
At the initial hearing on motions in limine, the trial court indicated it thought the prior incident was probably not sufficiently similar to the current incident, but it deferred ruling. Subsequently, after an Evidence Code section 402 hearing, the court granted the motion. In its remarks at both hearings, the court focused on the fact that the prior incident happened at night, in the dark, while the current incident happened in the daytime.
It is well established that a prior incident is admissible to show that a defendant had notice of a dangerous condition if the prior incident should have drawn the defendant's attention to that situation. In Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, a premises liability case, Justice Traynor (quoting McCormick's Evidence) observed that when the purpose of prior accident evidence is to show that the defendant had notice of the condition of the property, "'all that is required ... is that the previous injury should be such as to attract the defendant's attention to the dangerous situation which resulted in the litigated accident.'" The requirement that the prior and current incidents be similar, though stricter where the evidence is offered to prove the dangerousness of the condition itself, is "'much relaxed'" where the purpose is only to show notice. Our Supreme Court held that testimony that "someone had almost fallen" on the same staircase as the plaintiff was admissible to show notice, despite the lack of any other information about the prior incident and despite that fact that the person who slipped earlier did not even actually fall. (Id. at pp. 219-220; accord, Fuller v. State of California (1975) 51 Cal.App.3d 926, 943; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 404; Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 555.)
Here, the prior fall from the same ledge, caused by inadvertence and resulting in serious injury, was sufficiently similar to give notice of the condition of the property. The prior occurrence should have called Caltrans' attention to the ledge and the drop-off, which it could well have found to be dangerous. The trial court should have admitted the evidence of the prior fall to show notice.
Caltrans argues the prior incident was admissible to show notice only if Moore's use of the property was careful and reasonably foreseeable. It cites no authority for this notion and it is not correct. The fact that the public had access to a location in which such serious injury could result from an inadvertent fall from an unguarded ledge on a Caltrans structure should have been enough to prompt Caltrans to investigate and find out if a reasonably careful foreseeable user would be subject to significant risk, even if the person who actually fell turned out not to be such a user.
For a prior incident to be admissible as evidence of the dangerousness of the condition itself, as indicated above, the similarity between the prior and current incidents must be greater. "Before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question" (Laird v. T. W. Mather, Inc., supra, 51 Cal.2d at p. 220.)
This question is a fairly close one. On the one hand, the fact that another person sustained serious injury by inadvertently falling from the very same ledge Ryan inadvertently fell from appears at least marginally relevant to the question of whether the ledge is a dangerous condition, since the repeated occurrence of inadvertent falls there with serious consequences has some "tendency in reason" (Evid. Code, § 210) to show that people are apt to fall from it and that the consequences of doing so are serious. Moore fell from the ledge after walking toward it in the dark, with knowledge of the danger, while intoxicated, so his use of the property surely was not careful. But, if fully informed of the circumstances, the jury could perhaps reasonably consider the results of this noncareful use in judging the risks presented to careful users. If an intoxicated user familiar with the site could inadvertently fall off in the dark, could not a careful user, lacking such familiarity and unable to see the drop-off until the last second even in daylight, do so as well? Moore's incident also was arguably relevant to the question of the foreseeability of the use of the site by the public as a place to "hang out."
On the other hand, dissimilarities no greater than those at issue here have sometimes been upheld as a sufficient basis to exclude prior incident evidence. For example, in Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, the plaintiff slipped and fell on a piece of meat that had fallen on the sidewalk just outside an open arcade of Grand Central Market in downtown Los Angeles. The trial court excluded evidence of prior instances of customers slipping and falling at the market. Noting that these other incidents had not taken place on the same sidewalk and had involved "grocery items other than meat," the Supreme Court held that the trial court acted well within its discretion in excluding the evidence for the purpose of showing an unsafe condition. (Id. at p. 861.)
The question being a closely balanced one, we conclude that reasonable minds can differ about it, and therefore in this instance the trial court did not exceed the bounds of reason in ruling the prior incident inadmissible to show that the property was in a dangerous condition.
B. Ronald Nelson deposition testimony
Ronald Nelson was a civil and traffic engineer who worked for Caltrans for about 40 years ending in 2000. At the time he left Caltrans, he was a supervising transportation engineer assigned to work as a design reviewer. Among the designs he reviewed were designs for culverts, and all the major designs he approved included culverts. Caltrans designated him as the person most qualified to testify about the design, construction and modification of the culvert at issue.
Plaintiffs submitted a designation of the portions of Nelson's deposition transcripts they wished to use at trial. Caltrans made and the trial court sustained many objections to this testimony. A handful of these rulings is at issue now.
1. Opinion about the visibility of the drop-off from inside the pipe
Nelson testified in his depositions that a person inside the pipe would be unable to see the drop-off until reaching the end of the pipe, and thus would not know how far down it was from the end of the apron before that, and might not appreciate the consequences of slipping and falling, unless he or she had been there before or had been warned. The objections the trial court sustained to Nelson's testimony on this topic, to the extent the court specified, were "no foundation, assumes facts, incomplete hypothetical" and "speculative."
In essence, Nelson was making a simple factual point about what could be seen from inside the pipe. This point was relevant to the risk posed to persons using the property in a careful manner. It did not, of course, establish by itself that the condition of the property posed a significant risk to such persons, but it was relevant. The foundation for the testimony was adequate, and the testimony was not speculative, for Nelson had relevant expertise and had studied the site. The question really was not hypothetical at all, and did not assume any facts. To the extent the objections were directed at the issue of what a person in the pipe might appreciate about the consequences of slipping and falling, this amounted to no more than a simple logical inference from the lack of visibility: a person who cannot see the drop-off might not appreciate the danger it poses. (Nelson testified that the end of the apron itself (but not the drop-off) was visible from farther back in the pipe, and, in his opinion, a reasonably cautious person seeing the end of the apron would anticipate the possibility that the drop-off would be large; but he conceded that someone might fail to appreciate this possibility.) The objections sustained were inapplicable and the evidence should have been admitted.
2. Possible dangerousness despite lack of prior accidents; lack of recordkeeping on pedestrian-only accidents
Nelson testified that it was possible for Caltrans property to be dangerous even though only one accident had happened there, with no prior accidents. He also testified that although Caltrans had a database for tracking the locations of accidents on its property involving vehicles, he knew of no similar database for tracking pedestrian-only injuries on its property, such as falls on sidewalks. If a member of the public complained about an unsafe condition for pedestrians, Caltrans would investigate the complaint, but Nelson knew of no database recording locations of pedestrian-only accidents. The objections the trial court sustained were "lacking foundation," "argumentative," and "irrelevant."
There was no good reason to exclude the testimony that dangerousness did not depend on the existence of prior accidents. It is true beyond any serious dispute that a location can be dangerous even though no accident has yet happened there, since otherwise there would be no such thing as the first accident in a dangerous location. Yet in its arguments in support of its motions in limine, Caltrans had already stated its intention to argue to the jury that there was no admissible evidence of any prior incidents showing the dangerousness of the condition. Nelson's testimony was relevant to show that the property could be dangerous in spite of this. There was no foundation problem and the question eliciting the testimony was not argumentative.
The significance of the testimony that there was no database of pedestrian-only accidents was similar. If Caltrans intended to assert that the lack of evidence of prior incidents tended to show the location was not dangerous, it would be relevant that Caltrans did not systematically keep records that would show any prior similar incidents even if there had been any. This would help the jury to determine the weight and significance of the lack of admissible evidence of prior incidents. There was no foundation problem and the question that elicited the testimony was not argumentative.
3. Foreseeable uses of pedestrian facilities; dangerousness of roads and pedestrian paths with cliffs at the end
During the depositions, plaintiffs' counsel elicited Nelson's testimony that at a highway rest area, or a tunnel designed for pedestrians, it would be foreseeable that people would skip, jog, or run. The objections the court sustained were "speculation," "[n]o proper foundation" and "argumentative."
Plaintiffs' counsel asked Nelson a series of questions about whether a facility designed for pedestrians, or a road, would be poorly designed and dangerous if it included a tunnel at the end of which the walkway or roadway abruptly ended at a slippery ledge suspended over a cliff. Nelson indicated that this would, indeed, be a poor and dangerous design and he would not approve it. The court excluded this, saying: "It's asking an improper hypothetical. I don't see anything where those facts have been presented, so I think it's improper hypothetical." The court also said, "I don't like the hypothetical."
We think the court acted within its discretion in excluding these items, even if the objections sustained were not in each instance the right ones. What would be foreseeable, and what would be dangerous, on property designed for pedestrians or cars had little to do with what is foreseeable or dangerous in a culvert. Plaintiffs' burden involved showing that the property met the statutory definition of a dangerous condition even though it was not designed for pedestrians.
C. Caltrans' motion in limine No. 9
Caltrans' motion in limine No. 9 stated:
"[Caltrans] moves the court for an order instructing all parties, witnesses, counsel during witness examination and cross-examination, and their experts not to refer to, comment on, or suggest to the jury in any way, opinions regarding the general 'dangerousness' of the incident location, the incident location is 'dangerous,' or the incident location could be made 'safer' without using the statutory definition for dangerous condition of public property."
The motion argued that any testimony not conforming to such an order would be irrelevant (Evid. Code, §§ 210, 350) and would be substantially more prejudicial than probative (Evid. Code, § 352). The court granted the motion without comment on the reasons. As detailed in plaintiffs' opening appellate brief, this order was invoked many times during trial (though not consistently) to exclude witnesses' testimony about the dangerousness of the drop-off, the slippery ledge, and the approach to the ledge through the pipe.
Witnesses' views about and descriptions of the hazards at the site were plainly relevant and not unduly prejudicial. It was not reasonable to expect witnesses to be able to communicate what they knew about the site without answering questions about its hazards using plain English. There was no need for the statutory definition of a dangerous condition to be recited each time such a question was asked. The differences between the common usage of words such as "dangerous" and "safe" and the statutory requirements of plaintiffs' cause of action could have been handled by means of jury admonitions and instructions.
One example of the absurd consequences of this in limine ruling appeared when the court was considering plaintiffs' designations of portions of the Jamison deposition for use at trial. In one designated portion, Jamison testified that during the outing, no one gave any warning that the culvert in which they would be walking was dangerous. Plaintiffs' counsel argued that this was relevant to the question of whether Ryan was partly at fault for the accident. Caltrans invoked the ruling on motion in limine No. 9, contending that the testimony was inadmissible because it contained the word "dangerous" in connection with the property. The trial court agreed and excluded that portion of the deposition.
Granting the motion created an unwarranted and onerous burden for plaintiffs and was an abuse of discretion.
D. Caltrans' motion in limine No. 15
Caltrans' motion in limine No. 15 stated:
"[Caltrans] moves the court for an order instructing all parties, witnesses, counsel during witness examination and cross-examination, and their experts not to refer to, comment on, or suggest to the jury in any way, the term 'reasonably foreseeable'—as used in Government Code section 830, subdivision (a)—means foreseeability of a particular use as opposed to 'use with due care.'"
Caltrans again argued that testimony not conforming to such an order would be irrelevant and substantially more prejudicial than probative, and the court again granted the motion without comment.
To prove that the property was in a dangerous condition, plaintiffs had to show that it posed a substantial risk to those who used it in a reasonably foreseeable manner and with due care. There was no reason why every witness who testified about this topic had to talk about what would make a use reasonably foreseeable and what would make it careful in the same breath. Jury admonitions and instructions would have made clear what plaintiffs had to prove, and there was no reason to believe the jury would not have understood them. Again, the ruling imposed an unwarranted and onerous burden on plaintiffs. The court abused its discretion by granting this motion. IV. Trial irregularities
Apart from the rather numerous errors discussed in this opinion, there were other occurrences during the trial that cause us concern.
After the court ruled on the nonsuit motion, plaintiffs' counsel made a record of some matters about which he was dissatisfied. His recitation included the following:
"With respect to another area of concern, your Honor, we had a sidebar on Monday, I believe it was Monday, in which the evidence had not all been presented yet, in which the Court indicated, when I was arguing that this was an extremely dangerous condition and, therefore the evidence was relevant, the Court laughed and indicated, 'Dangerous condition, that's a bunch of BS.'
"Furthermore, the Court met with a juror outside the presence of counsel and without notifying counsel and talked with that juror, and [the] Court also indicated Juror No. 5 was the Court's friend."
Neither the court nor opposing counsel made any comment when the recitation was finished.
On the second to last day of the trial, counsel and the court were discussing Caltrans' objections to some deposition testimony plaintiffs had designated for use at trial. Plaintiffs' counsel made reference to a brief he had filed on the issue. The court remarked:
"You guys have been filing stuff every day, and we are here eight hours a day. And I don't know about you, but I only get paid for eight hours, and I presume you guys are getting paid for all the time.
"I don't choose to be here at night and read all this stuff you guys file, mostly because I simply can't. I run out of energy after about eight hours in here on the bench. So I haven't read a lot of stuff. You guys file it every day, new stuff, and expect me to be able to read it and make rulings on it."
These comments were consistent with the remark quoted above, in which the court said just before ruling on the nonsuit motion, "Well, I've read as much as I can"—indicating once again that it was ruling without having considered all the parties' submissions, because they were too voluminous to get through before quitting time.
There was some indication that the court was not altogether attentive to what the parties were presenting to it.
At the time when it admitted it had not read "a lot of stuff" pertinent to the matter on which it was about to rule (ultimately denying plaintiffs' request ), the topic before it was deposition testimony of a Caltrans employee named Michael Wheat. Wheat had testified in court six days earlier. A few pages into the colloquy about Wheat's deposition testimony, the court made it clear that it had no memory of Wheat:
"[Defense counsel]: Your Honor, our objection to the second part is [plaintiff's counsel] tried to read pages 77, lines 20, through 78, line 3, during Mr. Wheat's live testimony. We objected on foundation, and you sustained that.
"And now they are trying to bring it back in through video deposition after the witness has been excused. And for the additional lines, that's—
"THE COURT: The witness was excused where?
"[Defense counsel]: You excused Mr. Wheat.
"THE COURT: I did?
"[Defense counsel]: You did.
"THE COURT: Good.
"[Plaintiffs' counsel]: May I be heard on that, Your Honor?
"THE COURT: At somebody's request?
"[Defense counsel]: I can look at the end of the—
"THE COURT: I'm sorry. I haven't got the whole record in my mind. Did he testify here?
[Defense counsel]: Yes, he did, Your Honor."
We point out these irregularities not because they constitute error, reversible or otherwise, but because of their reflection on the judiciary and because the parties and counsel are entitled to expect better if the case is retried.
DISPOSITION
The judgment is reversed. Respondent Caltrans is to pay appellants' costs on appeal.
/s/_________
SMITH, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
ELLISON, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.