Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County, No. SCVSS126619. Donald R. Alvarez, Judge.
Henry W. Bockman for Plaintiff and Appellant.
Arias & Lockwood, Joseph Arias, Christopher D. Lockwood, and Carl Arias for Defendant and Respondent.
OPINION
RICHLI, J.
In the parking lot outside the offices of defendant, the Housing Authority of the County of San Bernardino (the Authority), plaintiff Frances Horlings stepped off a curb and onto a handicapped ramp. Her foot, however, instead of going onto the gently sloping forward path of the ramp, went onto the steeply sloping side of the ramp; her ankle twisted, and she fell.
Horlings sued the Authority, asserting a cause of action for a dangerous condition of public property. (Gov. Code, §§ 830, 835.) At trial, after Horlings rested, the Authority moved for a nonsuit, arguing that she had failed to offer sufficient evidence that: (1) the ramp presented a risk of injury when used with due care; (2) the ramp presented a substantial risk of injury; (3) the Authority had notice of the allegedly dangerous condition; and (4) the allegedly dangerous condition caused Horlings’s injuries. The trial court granted the motion.
On appeal, Horlings contends that she presented sufficient evidence of each of these elements. We agree. Hence, we will reverse. We need not address her alternative contention that she adequately pleaded and proved a cause of action for breach of a mandatory duty. (Gov. Code, § 815.6.)
I
FACTUAL BACKGROUND
In accordance with the applicable standard of review (see part II.A, post), “‘we . . . disregard conflicts and consider the evidence most favorable to plaintiff.’ [Citation.]” (Ewing v. Northridge Hospital Medical Center (2004) 120 Cal.App.4th 1289, 1293, quoting Lawless v. Calaway (1944) 24 Cal.2d 81, 85.)
During Horlings’s case-in-chief, both sides asked witnesses about a number of exhibits. Horlings rested without moving any exhibits into evidence. Nevertheless, if an exhibit was published to the jury, we believe we are entitled to consider it. Likewise, if a witness testified about an exhibit, we are entitled to consider that testimony. (See Wulfjen v. Dolton (1944) 24 Cal.2d 878, 880 [on motion for nonsuit, court can consider erroneously admitted evidence].)
The Authority specifically opposes our consideration of exhibit 12, arguing that “no foundation was presented for it.” Actually, the Authority objected to some (but not all) of the questions put to Horlings’s expert concerning exhibit 12, based, in part, on lack of foundation. To the extent that the trial court sustained such an objection and struck the expert’s answer, we disregard the expert’s testimony. However, to the extent that exhibit 12 was published to the jury, and to the extent that the expert’s testimony concerning it was not stricken, that evidence is part of the record that we must consider in reviewing the nonsuit.
On September 13, 2004, Horlings drove with her son Donny to the Authority’s office in San Bernardino. They were there to be interviewed to see if they qualified for Section 8 housing. Donny has Down syndrome; Horlings is his caretaker.
In the parking lot, there were two handicapped parking spaces located side-by-side, separated by a blue-striped walkway. Where the walkway met the curb and sidewalk, there was an unmarked ramp. The ramp was roughly the width of the walkway. From the level of the walkway, it rose six inches to meet the level of the curb. The ramp had been built in 1988 or 1989.
When Horlings and Donny arrived, Horlings parked her car, which had a handicapped placard, in the handicapped space on the right side of the ramp. To keep the sun away from Donny’s side, she backed in.
When they returned to the car, Horlings was just about to get in on the driver’s side when Donny said that he was having trouble closing his door. Horlings went around the back of the car to help him. She did not see the ramp. She was looking toward Donny and his car door, not down at the ramp. Also, the sun was going down, and the ramp was in the shadow cast by her car.
As she stepped off the sidewalk, her left foot stepped on the sloping side of the ramp, in the corner between the ramp and the curb. Her left ankle twisted, and she fell. She landed on her right knee. Her right leg was bruised from hip to toe. Because she was taking anticoagulants for a heart condition, she was left with chronic pain, swelling, and discoloration in her right leg. She was bedridden for months. By the time of trial, she was able to walk, but she still needed help with house cleaning and grocery shopping.
Dale Dunlap, an expert civil engineer and a principal in Krueper Engineering & Associates, testified that the design of the ramp violated the building code because the slope of the flared sides was too steep. The sides were required to have a slope of 1 in 8. Instead, they had a slope of approximately 1 in 1.5.
II
DISCUSSION
A. General Legal Principles.
1. Standard of review.
“[T]he granting of a nonsuit is reviewed de novo on appeal, using the same standard as the trial court. [Citation.]” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458 [Fourth Dist., Div. Two].)
“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor.”’ [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291, quoting Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, quoting Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583.)
“Although a judgment of nonsuit must not be reversed if plaintiff’s proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff’s evidence upon which reasonable minds could differ . . . .’ [Citations.]” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, quoting Ulwelling v. Crown Coach Corp. (1962) 206 Cal.App.2d 96, 104-105.)
2. A dangerous condition of public property.
“Under the Government Claims Act, there is no common law tort liability for public entities in California; such liability is wholly statutory. [Citations.]” (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688.) Horlings’s complaint relied on Government Code sections 830 and 835, which make a public entity liable for a dangerous condition of public property.
Specifically, “[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 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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)
“‘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.” (Gov. Code, § 830, subd. (a); see also Gov. Code, § 830.2.)
“The existence of a dangerous condition is ordinarily a question of fact . . . but it can be decided as a matter of law if reasonable minds can come to only one conclusion. [Citation.]” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)
B. Risk When Used with Due Care.
Horlings had to prove that the ramp presented a risk of injury when used with due care. (Gov. Code, § 830, subd. (a).)
“The [legislative] intent . . . ‘is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care. [Citations.]’ [Citation.]” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 558, quoting Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.) Thus, “premises liability may not be imposed on a public entity when the danger of its property is readily apparent.” (Biscotti, at p. 560.)
“However, it is ‘well settled . . . that the negligence or lack of due care exhibited by a plaintiff-user of public property does not necessarily defeat [her] cause of action.’ [Citation.] . . . ‘So long as a plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, [she] has successfully alleged the existence of a dangerous condition regardless of [her] personal lack of due care.’ [Citation.]” (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 7, bracketed pronouns in original, quoting Fredette v. City of Long Beach, supra, 187 Cal.App.3d at pp. 130 & 131.)
In Huffman v. City of Poway (2000) 84 Cal.App.4th 975, the plaintiff was in a play that required the actors to enter and exit via trapdoors in the stage floor (id. at p. 979); he was injured when he fell through an open trapdoor during rehearsal. He knew that open trapdoors were present, and he knew that there was one behind him right before he fell. Indeed, one of the purposes of the rehearsal was to familiarize the cast with the location of the trapdoors. (Id. at pp. 980-981.) An expert witness for the plaintiff testified that the actors should have rehearsed first with the trapdoors closed. Also, once the trapdoors were open, there should have been either guardrails or spotters, and the trapdoors should have been made more visible by using “Glo-Tape” and understage lighting. (Id. at p. 981.)
On appeal, the public entity defendant argued that it was entitled to judgment notwithstanding the verdict because there was no evidence of a substantial risk to users using due care. (Huffman v. City of Poway, supra, 84 Cal.App.4th at pp. 991-992.) The court, however, held: “[R]easonable minds could differ on the issue of whether the condition of the stage posed a substantial risk of injury to the foreseeable user exercising due care. . . . [A] trier of fact could conclude the dark color of the stage apron did not contrast with the dark color of the openings . . . and the boundaries of the danger zone were obscured; a performer using due care would not be alerted to the danger zone. Glo-Tape would have demarcated the boundaries of the danger zone, and its absence similarly could prevent a careful performer from noticing the danger. Finally, there was evidence the use of spotters and Glo-Tape was customary in the industry and had been used by this troupe in prior rehearsals and performances at the Lyceum to alert performers to their proximity to the open trapdoors. A jury could infer these alerting mechanisms are employed because even when ordinary performers exercising due care are aware of the location and dangers posed by the open trapdoors, they nevertheless need additional warning systems, considering the conflicting demands on their attention.” (Id. at pp. 992-993, fns. omitted.)
If an open trapdoor can pose a risk when used with due care, then so can the excessively steep side of a ramp. The Authority argues that the ramp was “plainly visible” because it was at the end of the blue-striped walkway. The ramp itself, however, was not striped or marked in any way. More to the point, the sides of the ramp were not marked separately from the surface of the ramp. The ramp was in between the two handicapped parking spaces. Thus, like Horlings, many users would be going around a car just before stepping onto it; the car would block their view. Also like Horlings, and like the plaintiff in Huffman, many users would have “conflicting demands on their attention.” (Huffman v. City of Poway, supra, 84 Cal.App.4th at p. 993.) Under these circumstances, the steep sides of the ramp created a kind of trap or hidden hazard for even the reasonably careful user.
The Authority argues that Horlings was looking at Donny and his passenger side door instead of looking “where she was walking.” However, “[i]t is well settled that, in the absence of notice or knowledge to the contrary, a pedestrian making normal use of the public sidewalk has a right to assume that it is in reasonably safe condition, and while he must use ordinary care for his personal safety and make reasonable use of his faculties to avoid injury to himself, he is not required to keep his eyes fixed on the ground or to be on a constant lookout for danger. [Citations.] Even if a defect is one which might be visible to a person who is looking for such a condition, it does not follow that a pedestrian is guilty of negligence as a matter of law in failing to see and avoid it. [Citations.]” (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 424-425.) Finally, even assuming that Horlings was negligent herself, this would not conclusively demonstrate that the ramp was dangerous only to those who were not using due care.
We do not necessarily agree with Horlings’s somewhat hyperbolic claims that the ramp was “[u]nsafe at any speed” or that it presented a substantial risk “as a matter of law.” For the present purpose, all we need hold, and all we do hold, is that there was substantial evidence that the ramp presented a risk even when used with due care.
C. The Substantiality of the Risk.
Horlings also had to prove that ramp presented a substantial — rather than trivial — risk of injury. (Gov. Code, §§ 830, subd. (a), 830.2.)
This rule has been applied most often in sidewalk trip-and-fall cases. (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foll. § 830.2, p. 309.) “‘[It] is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make [a public entity] liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise [a public entity] could be held liable upon a showing of a trivial defect.’ [Citation.]” (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73, quoting Whiting v. City of National City (1937) 9 Cal.2d 163, 165.)
“The question is not solely one of height or depth.” (Gentekos v. City & County of S.F. (1958) 163 Cal.App.2d 691, 698.) “[A] tape measure cannot be used to determine [it].” (Ibid.) “The size of the defect is a factor, an important factor, that must be considered, but it is not the only factor. The cases all declare that all of the conditions surrounding the defect must be considered in the light of the facts of the particular case, before the issue can be determined.” (Id. at pp. 699-700.) “[T]he happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.” (Gov. Code, § 830.5, subd. (a); see also Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831.)
In Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, the plaintiff tripped on the raised edge of a sidewalk; the edge was six or seven feet wide and varied in height from zero to perhaps as much as an inch. (Id. at p. 721.) The court held that this was a trivial defect as a matter of law. (Id. at pp. 722-734.) It noted that “[t]he only evidence presented as to the dangerousness of the defect was the evidence of the depth of the depression” (id. at p. 732), and “there was no evidence of any aggravating circumstances or factors which might have increased the dangerousness of the defect . . . .” (Id. at p. 726.)
Justice Jefferson dissented, noting: “[T]he evidence shows that this variation in height between abutting pieces of sidewalk existed in a business area that was heavily traveled. The expert called as a witness by plaintiff expressed an expert opinion, substantiated by valid reasons, that this variation in the height of abutting areas of sidewalk constituted a substantial hazard to pedestrians.” (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 736 (dis. opn. of Jefferson, J.).)
By contrast, in Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, the plaintiff was stepping over a concrete tire stop in parking lot when she tripped on a piece of rebar that projected a quarter of an inch above the tire stop. (Id. at pp. 264-265.) There had been no previous accidents or complaints involving the rebar. (Id. at p. 265.) The trial court granted summary judgment for the public entity defendant on the ground that the risk was trivial. (Id. at p. 266.) The appellate court reversed. It held that a jury could find that the rebar created a substantial risk of injury. (Id. at pp. 267-270.) It explained, in part: “[T]he protrusion was large enough to cause an injury while being small enough to avoid easy detection. The condition was not one that resulted from wear or tear, nor was it the result of a change in the weather; it was one that existed from the date of installation of the concrete tire-stop and remained constant.” (Id. at p. 270, fn. omitted.)
Here, as in Dolquist, it is significant that the defect was not the result of ordinary wear and tear; it had been designed into the ramp. Thus, we need not be concerned about the Authority being held liable for failure to keep the ramp in perfect condition. Moreover, the danger presented by a handicapped ramp with excessively sloped sides is significant enough for there to be a rule in the building code on the subject. In any event, the defect consisted of a total height disparity — six inches — far greater than in either Fielder or Dolquist. “[W]hen the size of [a] depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 726.) It also involved a steep slope to the side, where a user would be expecting only a gentle slope forward. While the lack of prior accidents is relevant, it is not controlling. (See Dolquist v. City of Bellflower, supra, 196 Cal.App.3d at p. 265; see also Fielder, at p. 733.)
We therefore conclude that there was sufficient evidence that the ramp presented a substantial risk of injury.
D. Notice.
As part of her cause of action for a dangerous condition of public property, Horlings had to prove that either:
(1) “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
(2) “The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)
If an employee of the public entity negligently created the dangerous condition, notice to the public entity is not required. As the California Supreme Court has explained, “there is no such requirement only because ‘[t]he creation by the public entity of a physical facility or condition that is “dangerous” dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.’ [Citations.]” (Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 836, quoting Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.17b, p. 208.)
The Authority argues that Horlings failed to prove that one of its employees created the dangerous condition. It states: “There is no evidence that any Housing Authority employee was involved in constructing the parking lot and no evidence that any Housing Authority employee had any role in the design or construction of the ramp.” This is misleading. There was no such evidence because counsel for the Authority conceded that the Authority built the ramp. In his opening statement, he told the jury: “[P]laintiff alleges that[,] well, [the] Housing Authority built it. . . . They constructed it, and we’re not denying that here. The Housing Authority will freely admit, sure we built it as part of a renovation for this parking lot and these buildings. We freely admit that . . . .”
Ordinarily, of course, “the arguments of counsel are not evidence.” (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 895, fn. 9.) Nevertheless, “an oral statement by counsel in the same action is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly. [Citations.]” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752; see, e.g., Bickford v. Mauser (1942) 53 Cal.App.2d 680, 681-682 [defense counsel admitted negligence in opening statement; only issue for jury was plaintiff’s contributory negligence].) Here, then, it was conclusively established that the Authority built the ramp. Moreover, the jury could reasonably have found negligence per se, because the ramp violated the building code. (Evid. Code, § 669.)
Separately and alternatively, there was sufficient evidence of constructive notice to the Authority. “A public entity had constructive notice of a dangerous condition . . . 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.” (Gov. Code, § 835.2, subd. (b).)
“[T]he concept of ‘dangerousness,’ as affected by the alleged trivial nature of the defect, is interwoven with the concept of notice.” (Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 289.) “[W]here the defect is minor, constructive notice does not follow from its existence over a period of time. [Citation.]” (Adams v. City of San Jose (1958) 164 Cal.App.2d 665, 669.) In part II.C, ante, however, we held that there was sufficient evidence that the defect was not trivial. A jury could reasonably find that the dangerous nature of the condition was self-evident. (Cf. Sebern v. City of Riverside (1941) 42 Cal.App.2d 701, 702-703 [evidence that flange of drainpipe protruded half an inch into crosswalk “disclose[d] such a conspicuously dangerous situation that the court would be justified in finding that the city had constructive notice”].) Indeed, there is a certain tension between the Authority’s argument that it lacked notice and its argument that Horlings should have been looking where she was going — i.e., that the danger was obvious. Finally, the ramp had been in place since 1988 or 1989, more than ample time for an inspection to find the defect.
E. Causation.
Horlings also had to prove that her injuries were caused by the dangerous condition of public property. (Gov. Code, § 835.)
“A plaintiff must show that the dangerous condition in question was a substantial factor in causing his or her harm. [Citations.] ‘“If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. [Citation.]”’ [Citations.] The issue of causation, like the existence of a dangerous condition, usually presents a question of fact. [Citation.] However, the issue can be decided as a matter of law where the facts of a case can permit only one reasonable conclusion. [Citation.]” (Milligan v. Golden Gate Bridge Highway & Transp. Dist., supra, 120 Cal.App.4th at pp. 8-9, quoting Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.)
Horlings consistently testified that her left foot “caught in between the corner of the sidewalk and the ramp,” “twisted,” and “went out from under [her.]” “ . . . I felt like it wasn’t flat ground. It was something . . . to push me that way.” “ . . . I had to step on the slope . . . . I can’t say exactly whether . . . my whole foot was on the slope or whether it was part.” The only reasonable conclusion is that she placed her foot on the unexpectedly steeply sloped side of the ramp and, moreover, that it was this slope that caused her to lose her balance and fall.
In addition, the Authority had admitted, in an interrogatory response, that Horlings “stepped on the side of the ramp, lost her balance and fell.” The Authority tries strenuously to avoid the effect of this admission, arguing that it was based on what it had been told by Horlings and suggesting that she somehow changed her story at trial. When counsel for Horlings read the interrogatory response to the jury, however, the Authority did not object. It never attempted to amend its interrogatory response. (See Code Civ. Proc., § 2030.310, subd. (a).) Accordingly, the jury could properly consider this admission.
We therefore conclude that Horlings presented sufficient evidence of causation.
III
DISPOSITION
The judgment is reversed. Horlings may recover costs on appeal against the Authority.
We concur: McKINSTER, Acting P.J., MILLER, J.