Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BC300552 of Los Angeles County. John P. Shook, Judge.
Rockard J. Delgadillo, City Attorney and Janet G. Bogigian, Assistant City Attorney for Defendant and Appellant.
Law Office of Gerald Clausen and Gerald Clausen; Rouda, Feder, Tietjen & Zanobini, Ronald H. Rouda and John F. Feder for Plaintiff and Respondent.
CHAVEZ J.
A jury awarded plaintiff and respondent Alice Mowat (plaintiff) $18,026,205.80 in damages for injuries plaintiff sustained when she was struck by a vehicle while crossing Cahuenga Boulevard West (Cahuenga) in a marked crosswalk. The jury found that defendant and appellant City of Los Angeles (City) controlled the crosswalk and intersection where the accident occurred, and that the property was in a dangerous condition at the time. The City appeals from the judgment and from an order denying the City’s motion for a judgment notwithstanding the verdict. The City contends that the evidence does not support the judgment; that conditions at the location of plaintiff’s accident were open and obvious and therefore not dangerous; and that the City is immune from liability pursuant to Government Code sections 830.4 and 830.8. We affirm the judgment and the order denying the motion for judgment notwithstanding the verdict.
The $18,026,205 damage award was assessed as follows: past economic, $1,608,569; future economic, $10,417,636; past noneconomic, $802,000; and future noneconomic, $5,197,800.
All further statutory references are to the Government Code, unless otherwise stated.
FACTUAL BACKGROUND
1. The Location of the Accident
The portion of Cahuenga between Highland Avenue and the Hollywood Freeway off-ramp is a state highway owned by the State of California (State). Just south of the off-ramp, Pilgrimage Bridge (also known as Vine Street) enters Cahuenga from the east to form a T-intersection. The area is undeveloped, and the intersection is uncontrolled except for a stop sign for Pilgrimage Bridge traffic.
Approximately 371 feet north of Pilgrimage Bridge, a two-lane freeway off-ramp merges into Cahuenga to form three southbound lanes. In the northbound direction, two lanes merge into a single lane approximately 400 feet before the intersection.
Cahuenga is 61 feet wide at the intersection, consisting of five “unbalanced” lanes of traffic -- four southbound lanes (three through-lanes and a left-turn lane) and one northbound lane. A white “laddered,” or cross-hatched crosswalk extends across Cahuenga on the north side of the intersection. Immediately south of the intersection, Cahuenga crests upward to a seven and one-half percent grade, which flattens out at Pilgrimage Bridge.
At the time of the accident, a pedestrian advance warning sign known as a “W54A” sign, was located approximately 280 feet from the crosswalk on the east side of Cahuenga for oncoming northbound traffic. Just north of this sign were white “PED XING” pavement markings. A “W54” pedestrian crossing sign for northbound traffic was located next to the crosswalk on the west side of Cahuenga.
2. The Accident
On September 23, 2002, plaintiff, a then 19-year-old visitor from the United Kingdom, was vacationing in Los Angeles. She had spent the day sightseeing with companions Damian Green, Jodie Walker, and Elsa McVey, and the foursome was returning to their lodgings on Cahuenga at approximately 7:45 p.m.
The group reached Cahuenga, intending to cross eastbound through the crosswalk. They encountered heavy northbound and southbound traffic, and they waited approximately three or four minutes for a break in the traffic before entering the street. Plaintiff and Jodie Walker entered the crosswalk first, walking abreast of one another, with Jodie on the left and plaintiff on the right. Elsa McVey and Damian Green were one or two steps behind them. When the group reached the third southbound lane, southbound vehicles began passing behind them through the crosswalk. As plaintiff and Walker entered the northbound lane, Walker looked to her right and saw an oncoming vehicle. She screamed out, “Stop” or “Car.” Green looked to the right and saw headlights about 5 meters, or 15 1/2 feet away from them. He had not seen the vehicle before then because he was looking for southbound vehicles to his left. A BMW sport utility vehicle traveling at about 45 miles per hour struck plaintiff, who suffered serious injuries as a result of the collision.
3. Plaintiff’s Lawsuit and the Trial
Plaintiff sued the driver of the vehicle, Anatoly Shevtchenko, for negligence. She also sued the City and the State for a dangerous condition of public property, alleging that the crosswalk and intersection were poorly lit, had inadequate pedestrian crosswalk signage for northbound traffic, lacked warning beacons or flashing lights to alert motorists to the presence of pedestrians, and that a crest in the road limited the sight distance for both pedestrians and northbound drivers. The State and Shevtchenko settled with plaintiff during jury selection, and the case proceeded to trial against the City alone.
A. Percipient Witnesses
Damian Green and Jodie Walker testified that they were with plaintiff at the time of the accident. Both said that they encountered heavy traffic while attempting to cross Cahuenga, but made sure the road was clear before entering the crosswalk. Both Green and Walker also testified that when they had crossed two of the three southbound lanes, southbound cars began to pass behind them through the crosswalk. Neither saw the northbound vehicle that struck plaintiff until immediately before it collided with her.
B. Other Lay Witnesses
Anahit Fenerdjian and her sister Hasmik testified that they had been patrons of the Hollywood Bowl since 1989, and that they used the crosswalk at Cahuenga regularly for several years while attending concerts. Anahit said that crossing Cahuenga was difficult because oncoming northbound traffic was not visible to pedestrians because of a steep incline in the road. Because the oncoming traffic was heavy, and cars approached the crosswalk at relatively high speeds, the Fenerdjians developed strategies for making themselves more visible to motorists. They crossed in a group, placed white tape over their bags and seat cushions, and carried flashing lights and a stop sign similar to those used by school crossing guards. Despite these precautions, the Fenerdjians experienced several close calls when oncoming motorists did not see them in time to stop, and the drivers had to swerve out of the way to avoid a collision. One such incident in July 1997 prompted Anahit to telephone the City to request a traffic signal at the location. The City told her that Cahuenga was a state road and referred her to the State Department of Transportation. Anahit wrote to the State expressing her concerns, and the State referred her back to the City, advising her that Cahuenga at that location was under the City’s jurisdiction.
In August 1998, Anahit spoke by telephone with a City representative, who told her that the City would undertake a traffic study to determine whether a traffic light should be installed. In June 1999, Anahit telephoned the City to inquire about the status of the traffic study and was told that the study had been completed, the results showed that a traffic signal was not warranted, and that the best the City could do was to repaint the crosswalk in a laddered style. In August 1999, the Fenerdjian family experienced another close call in the Cahuenga crosswalk when a southbound motorist was unable to stop in time and had to swerve out of the way to avoid colliding with them. Anahit telephoned the City and left a voice message requesting the placement of flashing yellow lights at the crosswalk; however, she never received a response.
Kristina Valcarce testified that she lived on Cahuenga Boulevard from 1995 to 1999 and used the Cahuenga crosswalk regularly between 6:30 and 7:00 a.m. during that period. She found the southbound traffic on Cahuenga very heavy at that time, and often had to stop in the middle of the crosswalk because oncoming vehicles would not stop for her. In November 1997, Valcarce wrote a letter to the City complaining about the dangers of using the Cahuenga crosswalk. In her letter, Valcarce pointed out that the crosswalk was not visible to motorists and its location at the bottom of an incline and proximity to a freeway off-ramp caused motorists to speed through the crosswalk without stopping for pedestrians. She asked the City to repaint the crosswalk, post a pedestrian crossing sign in advance of the crosswalk, and install a pedestrian crossing signal at the location. Valcarce never received a response to her letter and thereafter altered her route so she could avoid having to use the crosswalk.
C. Expert Testimony
Plaintiff’s experts testified that several factors made the crosswalk a dangerous condition. These factors included its proximity to the Hollywood Bowl and Universal Studios, venues frequented by tourists unfamiliar with the area; the relatively undeveloped nature of the area, allowing motorists to proceed at relatively high speeds; the presence of multiple, unbalanced lanes; the proximity of the freeway off-ramp; and limited visibility for both pedestrians and motorists caused by the slope and curvature of Cahuenga.
Plaintiff presented evidence that traffic volume at the location is very high, primarily because of the southbound freeway off-ramp. More than 50,000 vehicles travel the road daily -- 43,000 in the southbound direction and 7,000 northbound. Between 7:30 and 8:00 p.m., approximately 175 northbound vehicles (one every 10 seconds) and 959 southbound vehicles (one every two seconds) pass through the intersection. More than half of the southbound vehicles come from the freeway off-ramp. Unlike traffic flow on an ordinary city street, which is regulated by the operation of traffic signals, traffic flow from the off-ramp is random. In addition, southbound motorists frequently change lanes, making it difficult for pedestrians to predict where an approaching southbound vehicle will be. Southbound vehicles exiting from the freeway off-ramp at a speed of 45 miles per hour travel the 371 feet from the off-ramp to the crosswalk in approximately five seconds.
Experts on both sides agreed that that the vertical curve of Cahuenga impairs the ability of pedestrians and northbound drivers to see one another. A pedestrian standing on the west curb of the Cahuenga crosswalk cannot see a northbound vehicle more than 600 feet away until after entering the street. A northbound motorist approaching the intersection at night cannot see the crosswalk from a distance of more than 100 feet. The City’s experts testified that headlight glare from southbound vehicles can further exacerbate the visibility problem, making it more difficult for a northbound motorist to see pedestrians in the crosswalk. Plaintiff’s accident reconstruction expert opined that the reduced visibility for both motorists and pedestrians was such that an approaching motorist could not perceive pedestrians in the crosswalk, and react, brake, and stop in time to avoid a collision.
There was also evidence concerning the City’s control over the crosswalk and intersection. In 1994, the City undertook a traffic volume study, a speed volume study, and an engineering and traffic survey for that portion of Cahuenga. The City adopted an ordinance establishing a speed limit for that portion of Cahuenga. In 1997, in response to Valcarce’s complaints about the crosswalk, the City issued work orders to install pedestrian warning signs, repaint the crosswalk, and install “PED XING” pavement markings. In 1999, in response to the Fenerdjian complaints, the City repainted the crosswalk in a laddered or cross-hatched manner to make it more visible to motorists, and moved or installed pedestrian warning signs.
4. The Jury Verdict and Judgment
The jury found the City liable for plaintiff’s injuries and apportioned fault 20 percent to the City, 48 percent to the State, 30 percent to Shevtchenko, and 2 percent to plaintiff. After allocation of fault and settlement, the City’s share of the damages was $11,870,638. Judgment was entered on March 17, 2006. The trial court denied the City’s motions for a new trial and judgment notwithstanding the verdict.
DISCUSSION
I. Standard of Review
“An ‘appeal from the trial court’s denial of the . . . motion for judgment notwithstanding the verdict is a challenge to the sufficiency of the evidence to support the jury’s verdict and the trial court’s decision. . . .’ In ruling on a motion for JNOV, ‘“the trial court may not weigh the evidence or judge the credibility of the witnesses, as it may do on a motion for a new trial, but must accept the evidence tending to support the verdict as true, unless on its face it should be inherently incredible. Such order may be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff’s evidence, the result is no evidence sufficiently substantial to support the verdict. [¶] On an appeal from the judgment notwithstanding the verdict, the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the original verdict.”’ [Citation.]” (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1320.)
II. Applicable Law
A. Section 835
“A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property. [Citation.]” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.) To establish liability under section 835, a plaintiff must prove the following elements: “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] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or . . . [t]he 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.” (§ 835; Metcalf v. County of San Joaquin (Feb. 21, 2008, S144831) __ Cal.4th __ [2008 D.A.R. 2633].)
“Dangerous condition” is defined in section 830 as “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.” (§ 830, subd. (a).) “‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.” (§ 830, subd. (b).)
“Property of a public entity” and “public property” are defined as “real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.” (§ 830, subd. (c).)
Section 830.4 excludes from the definition of “dangerous condition” a condition resulting “merely” from failure to provide regulatory traffic controls or definitive roadway markings. It states: “A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” (§ 830.4.) The statute accords a public entity with limited immunity from liability “in those situations where the alleged dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory device or street marking.” (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534 (Washington).) “Where, however, the dangerous condition of public property exists for reasons other than or in addition to the ‘mere[]’ failure to provide such controls or markings, the public entity is liable for injury therefrom if the conditions of its liability under section 835 are otherwise met.” (Id. at p. 1536, fn. omitted.)
Section 830.8 also confers limited immunity on a public entity for failure to provide certain traffic regulatory or warning signals or devices. It states: “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” (§ 830.8.) “Section 830.8 was intended to prevent ‘the imposition of [public entity] liability based on the failure to provide traffic regulatory or warning signals or devices [other than as described] in Section 830.4, but liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care.’ [Citations.]” (Washington, supra, 219 Cal.App.3d at p. 1536, quoting Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1980 ed.) §830.8, p. 289.) “A public entity, thus, loses its limited immunity under section 830.8 and is liable for injury where its failure to provide traffic regulatory or warning signals, of a type other than those described in section 830.4, constitutes a concealed trap for those exercising due care, assuming the conditions of its liability under section 835 are otherwise met. [Citation.]” (Washington, at p. 1537.)
III. Liability for Dangerous Condition
The City contends it is not liable as a matter of law for plaintiff’s injuries because the City did not own or design Cahuenga or the crosswalk, and the conditions plaintiff claims made the area dangerous were obvious and apparent to those using the crosswalk with due care. During oral argument, the City also claimed for the first time that even if a dangerous condition existed, it did not have notice of that condition a sufficient time before the accident to have taken protective measures against it.
A. Ownership
That the City did not own or design Cahuenga or the crosswalk does not preclude liability in this case. A public entity may be liable for injury caused by a dangerous condition on property owned or controlled by that entity. (§§ 830, subd. (c); 835.) There was substantial evidence that the City controlled the crosswalk and intersection where plaintiff’s accident occurred. In 1994, the City undertook a traffic volume study, a speed zone study, and an engineering and traffic survey for that portion of Cahuenga. A city ordinance established a speed limit for that portion of Cahuenga. The City repainted the crosswalk in 1997 and again in 1999 to make it more visible to motorists. In response to citizen complaints, the City also installed or moved traffic control signs and markings in the vicinity of the intersection.
Substantial evidence supports the jury’s finding that the City controlled the property where plaintiff’s accident occurred. Such control is a valid legal basis for imposing liability on the City. (§§ 830, subd. (c); 835.)
B. Dangerous Condition
The City contends the conditions plaintiff claims made the crosswalk and intersection dangerous -- the high volume of traffic, the presence of multiple, “unbalanced” southbound and northbound lanes, the random flow of fast moving traffic from the Hollywood Freeway off-ramp, the length of the crosswalk, the absence of an island, and a crest in the road that reduced visibility for both pedestrians and motorists -- were obvious and apparent to persons using the street with care, and that no dangerous condition could be found to exist as a matter of law. “The existence of a dangerous condition is ordinarily a question of fact – resolved here by the jury’s express finding . . . – 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 (Bonanno).) Nothing in the record or the case authorities cited by the City negates, as a matter of law, the jury’s finding.
As authority for setting aside the jury’s verdict, the City cites cases in which courts have considered and rejected certain factors claimed to present a dangerous condition. (See, e.g., Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 7 [incline in road not dangerous]; Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1473 [traffic congestion alone not ordinarily a dangerous condition].) None of these cases preclude the argument advanced by plaintiff here -- that several individual factors may combine to create a dangerous condition. Our Supreme Court has acknowledged that “public property has . . . been considered to be in a dangerous condition ‘because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.’ [Citation.]” (Bonanno, supra, 30 Cal.4th at p.149, italics added), and California case law is consistent with this principle. (See Constantinescu, supra, 16 Cal.App.4th at p. 1476 [“amalgam” of factors, including traffic congestion, made property dangerous]; Curreri v. City & County of San Francisco (1968) 262 Cal.App.2d 603, 610 [perpendicular parking, difficulty of maneuvering a car on a steep street, and visibility problems, combined to create a dangerous condition].)
Substantial evidence supports the jury’s finding that a dangerous condition existed. Plaintiff’s experts testified that pedestrians using the crosswalk at Cahuenga must cross five lanes of traffic moving at speeds of between 45 to 50 miles per hour. Pedestrians crossing eastbound on Cahuenga must initially negotiate three lanes of oncoming southbound traffic to determine whether it is safe to enter the crosswalk but cannot see approaching northbound vehicles until after they have entered the street. Plaintiff’s experts explained that because pedestrians must focus on southbound traffic while crossing the southbound lanes, by the time they reach the northbound lane, they may be unaware of an approaching northbound vehicle. Pedestrians could thus find themselves in the middle of the crosswalk, caught between oncoming northbound and southbound traffic, with no place of safety or refuge, such as a pedestrian island, at which to stop and avoid oncoming vehicles. Plaintiff’s experts further testified that the slope and curvature of Cahuenga prevents an approaching northbound motorist from seeing pedestrians in the crosswalk in time to stop and avoid a collision.
The City maintains that the absence of accidents at the location during the nine years preceding plaintiff’s accident is “compelling evidence” that no dangerous condition existed, and that the testimony of its experts and other witnesses at trial established that conditions at the intersection were obvious and apparent to persons using the crosswalk with due care. We review the jury’s factual determination, not for “compelling evidence,” but for substantial evidence. (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445.) Under the substantial evidence standard, “‘the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. . . . [Citations.]” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) Substantial evidence supports the jury’s determination that a dangerous condition existed at the crosswalk and intersection.
Because substantial evidence supports the jury’s implicit finding that the dangers presented at the crosswalk and intersection were not “obvious and apparent” to pedestrians exercising due care, we need not address plaintiff’s argument that the City is estopped from arguing that the conditions were apparent.
C. Creation of, or Failure to Protect Against Dangerous Condition
The jury found true the negligent or wrongful conduct of a City employee, acting within the scope of employment, created the dangerous condition, or that the City had notice of the dangerous condition a sufficient time before the accident to have protected against it. Substantial evidence supports either of these alternative findings.
Plaintiff presented evidence that a City ordinance set a speed limit for motorists at that portion of Cahuenga and that the City controlled the placement of traffic control signs, signals, and devices at that location. Plaintiff also presented evidence that motorists given advance information of pedestrian activity at a given location will detect a pedestrian from twice that distance. Plaintiff’s experts testified that there were insufficient warning signs in the vicinity of the crosswalk to alert northbound drivers that pedestrians might be present. One expert testified that the “PED XING” pavement legend was placed too close to the crosswalk, and that the laddered crosswalk itself was not visible to a northbound motorist more than 100 feet away. Although a single W54 sign was present at the crosswalk on the west side of Cahuenga to alert northbound drivers to the presence of pedestrians, City standards provided for the placement of pedestrian crossing signs on both sides of the street, and the W54 sign on the east side of Cahuenga was missing. The same expert testified that a properly placed W54 sign could have prevented the accident because the sign would have alerted a northbound driver to the specific location of the pedestrian crossing. There was also evidence of additional protective measures the City could have taken, such as installing flashing lights, relocating the crosswalk, and placing a raised or painted pedestrian island in the roadway.
Although the City contends the trial court erroneously admitted this evidence because it had been previously excluded by a motion in limine, the City itself opened the door to the admission of such evidence by cross-examining plaintiff’s expert about ways in which the visibility limitations at the crosswalk could be corrected. (See MacLean v. City and County of San Francisco (1957) 151 Cal.App.2d 133, 144 [party waived right to challenge allegedly erroneous admission of testimony when it had elicited testimony to the same general effect as the challenged testimony].)
There was also substantial evidence that the City had notice of the dangerous condition for a sufficient time before the accident to have protected against it. There was testimony by other citizens who had complained to the City in 1997, 1998, and 1999 about the speed at which motorists approached the intersection, visibility problems for both pedestrians and motorists at the location, and how pedestrians could find themselves in the middle of the crosswalk, caught between oncoming northbound and southbound traffic, with no place of safety or refuge at which to stop and avoid oncoming vehicles. The absence of additional complaints between 1999 and the time of plaintiff’s accident does not exonerate the City from liability for lack of notice in this case.
The City argues that because it did not own or design the portion of Cahuenga at issue, it could not alter the physical configuration of the road or relocate the crosswalk and cannot be held liable for any failure to do so. Under section 835, the City may be held liable for failure to protect against a dangerous condition not only by failing to remedy or correct that condition, but also by failing to safeguard against or warn of a dangerous condition. (§ 830, subd. (b).) The City’s inability to alter the physical characteristics of the street does not preclude liability in this case.
IV. Immunity Under Section 830.4
The City contends that section 830.4 immunizes it from liability because that statute states that “[a] condition is not a dangerous condition . . . merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code,” and because liability in this case was premised on the absence of adequate pedestrian warning signs. As discussed, section 830.4 accords a public entity with limited immunity from liability “in those situations where the alleged dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory traffic device or street marking.” (Washington, supra, 219 Cal.App.3d at p. 1534.) “Where, however, the dangerous condition of public property exists for reasons other than or in addition to the ‘mere[]’ failure to provide such controls or markings, the public entity is liable for injury therefrom if the conditions of its liability under section 835 are otherwise met.” (Id. at p. 1536, fn. omitted.) Here, plaintiff presented evidence that the intersection was dangerous not merely because of the absence of traffic control signals or warning signs, but also because of the proximity of the freeway off-ramp, the presence of multiple, unbalanced lanes of fast moving traffic, the width of the crossing, and the limited sight distance caused by the slope and curvature of the road. Section 830.4 accordingly does not immunize the City from liability in this case.
V. Immunity Under Section 830.8
The City argues that section 830.8 shields it from liability for “the failure to provide traffic warning signals, signs, markings or devices described in the Vehicle Code.” Section 830.8 further states, however, that “[n]othing in this section exonerates a public entity . . . from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” As discussed, substantial evidence supports the jury’s finding that the intersection was a dangerous condition and its implicit determination that the danger was not “reasonably apparent to, and would not have been anticipated by, a person exercising due care.” (Ibid.)
As discussed, section 830.8 provides in part: “Neither a public entity nor a public employee is liable under this chapter for any injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.”
The City nevertheless argues that section 830.8 shields it from liability in this case because a public entity cannot be liable for injury caused by failure to install a signal, sign, marking or device “described in Section 830.4.” The City maintains that all of the warning devices and protective measures plaintiff claims should have been used at the intersection -- a pedestrian island, an additional W54 sign, and flashing yellow lights -- are “described in Section 830.4.” (§ 830.8.) Section 830.4 covers “regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.”
In its reply brief in this appeal, the City argues for the first time that the trial court erroneously instructed the jury concerning public entity liability under section 830.8 for failure to warn of a dangerous condition based on the absence of a 35 mile per hour speed limit sign.
A. Pedestrian Island
The City claims that a pedestrian island is a “distinctive roadway marking” described in section 21460 of the Vehicle Code. Vehicle Code section 21460 describes “double parallel solid lines” which prohibit a motorist from “driving a vehicle . . . to the left thereof” and “[r]aised pavement markers” that “may be used to simulate painted lines described in this section.” (Veh. Code, § 21460, subds. (a), (d).) The pedestrian island discussed by plaintiff’s experts does not fit within this description. Frazier v. County of Sonoma (1990) 218 Cal.App.3d 454, on which the City relies to support its argument that a pedestrian island is a roadway marking described in Vehicle Code section 21460, is inapposite. In that case a truck making a left turn at an intersection crossed over the double yellow line and struck a motorcyclist. (Id. at p. 456.) The motorcyclist argued that a painted traffic island would have prevented the accident. (Id. at p. 458.) The court concluded that the island proposed by the motorcyclist was a marking described in section 830.4 and Vehicle Code section 21460 because it would consist of double parallel lines whose purpose was to keep drivers to the right thereof. (Id. at pp. 459-460.) The pedestrian island referred to by plaintiff’s experts was not a roadway marking described in Vehicle Code section 21460 or Frazier.
Section 21460, subdivision (a) provides: “When double parallel solid lines are in place, no person driving a vehicle shall drive to the left thereof, except as permitted in this section.” Subdivision (d) states: “Raised pavement markers may be used to simulate painted lines described in this section when the markers are placed in accordance with standards established by the Department of Transportation.”
B. W54 Sign
The City does not contend that a W54 pedestrian crossing sign is covered by section 830.4. Instead, the City argues that it cannot be held liable for the absence of a W54 sign because it had no legal duty to install such a sign in the first instance. As support for this argument, the City cites a State Traffic Manual that states a W54 sign “may” be used to warn motorists of an unexpected pedestrian crossing. The absence of an independent regulatory duty to install a W54 sign does not preclude liability under section 830.8 for failure to warn of a dangerous condition.
Because we conclude that the City may be liable under section 830.8 for failure to provide a pedestrian safety island or adequate W54 pedestrian signs, we need not determine whether the City’s failure to install flashing yellow lights may also be a basis for liability under that statute.
C. Speed Limit Sign
The City contends the trial court gave the following erroneous jury instruction concerning a public entity’s liability for failure to warn of a dangerous condition based on the absence of a 35 mile per hour advisory speed sign: “A public entity is not responsible for harm caused by the lack of a pedestrian crossing warning sign, a 35 MPH advisory speed sign, a flashing amber beacon or a pedestrian island unless a reasonably careful person would not notice or anticipate a dangerous condition of property without the pedestrian crossing warning sign, a 35 MPH advisory speed sign, a flashing amber beacon or a pedestrian island. Warning devices are required under Government Code sections 830.8 [and] 830 only if a dangerous condition exists.” (Italics added.) The City argues that the instruction was legally incorrect because a speed restriction sign is specifically identified in section 830.4, and the absence of such a sign cannot serve as the basis for liability under section 830.8.
Although the City did not object to the jury instruction on this basis in the trial court below, nor did it offer qualifying language to rectify the alleged error, “[a] failure to object to civil jury instructions will not be deemed a waiver where the instruction is prejudicially erroneous as given, that is which is an incorrect statement of the law.” (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760.) The instruction given was not an incorrect statement of the law. A speed advisory sign is not the same as a speed restriction sign described in section 830.4. A speed restriction sign described in section 830.4 establishes a mandatory speed limit. A speed advisory sign sets forth a recommended speed less than the mandatory speed limit. (See Bunker v. City of Glendale (1980) 111 Cal.App.3d 325, 328 [sign advising motorists to “slow to 15 miles per hour”]; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 93 [public entity not immune under sections 830.4 and 830.8 for failure to post speed signs warning that curve in road should be negotiated at 45 miles per hour rather than at legal speed limit of 65 miles per hour].)
Moreover, “[a] judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ (Cal. Const., art. VI, § 13.)” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) The City has failed to establish that the instruction, even if legally incorrect, resulted in a miscarriage of justice. As discussed, there was ample basis for the jury to find the City liable for failure to protect against a dangerous condition, including the failure to provide a pedestrian island or a pedestrian crossing sign, devices that are not described in section 830.4. No miscarriage of justice occurred.
VI. Causation
The City contends plaintiff failed to prove causation because she presented no evidence that the absence of warning signs or flashing yellow lights was a substantial factor in causing her injuries. In order to prove causation, plaintiff was obliged to show that her injuries were caused by the dangerous condition. (§ 835.) She was not obligated to prove that additional protective measures the City could have taken would have prevented the accident.
The jury found that the dangerous condition of the crosswalk and intersection was a substantial factor in causing plaintiff’s injuries, and substantial evidence supports that finding. There was evidence that the crosswalk extends across five unbalanced lanes of traffic, that motorists approach the crosswalk at relatively high speeds and frequently change lanes, that neither an eastbound pedestrian nor a northbound motorist can see one another as the pedestrian is entering the crosswalk, and that a northbound motorist approaching the crosswalk cannot see a pedestrian in time to react safely, stop, and avoid a collision. Substantial evidence supports the jury’s finding on causation.
DISPOSITION
The judgment is affirmed. Plaintiff is awarded her costs on appeal.
We concur: Acting P. J. DOI TODD, ASHMANN-GERST J.