This case involves a decedent who was walking in a generally westbound direction on Curtner Avenue near its intersection with State Route 87 in San Jose, CA, when he was struck by defendant driving his work truck. Plaintiffs allege causes of action against the driver and company for negligence, and a cause of action for dangerous condition of public property under Government Code section 835 against the City of San Jose. The City cross-complained against the other defendants in the case.

Plaintiffs allege this portion of Curtner Avenue near its intersection with State Route 87 was in a dangerous condition because it was negligently and carelessly constructed, designed, maintained, repaired, lit, controlled, and operated. They alleged that the subject area lacked safe warnings, signage, markings, striping, lighting, and delineation; had overhead lighting that had not been maintained; and included traffic control devices that had been inadequately and unsafely designed, placed, operated and maintained. The City moved for summary judgment on the bases that 1) Plaintiffs cannot prove the decedent was using this part of Curtner Avenue in a reasonably foreseeable manner with due care, 2) it is not liable for inadequately lighting its streets, and 3) it is immune from any liability based on its alleged failure to provide adequate signals or signs. Cross-defendants opposed the motion and Plaintiffs filed a non-opposition.

At the hearing, the City first argued that the Cross-Defendants had no standing to oppose the motion. This argument was not taken well by Court since Cross-Defendants pointed out their substantial interest in the outcome of the motion. The City had cross-complained against them early in the case, and if the City’s motion were granted it would leave the Cross-Defendants as the only remaining defendants.

Ultimately the Cross-Defendants succeeded in refuting the merits of the City’s motion on all bases. First, because the exercise of due care by the injured individual is not an element that must be proved to establish a claim for dangerous condition of public property. Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal. App. 4th 1, 7. Therefore, it is not a proper basis for a motion for summary judgment. Second, while the City asserted there were no unusual conditions making Curtner Avenue unsafe for pedestrians or that facilitated unsafe use, and was therefore not liable for inadequately lighting its streets, Cross-Defendants presented a compelling two fold arguments: 1) Numerous physical characteristic of the property at Curtner and Route 87 exposed its users to increased danger from third party negligence, including the immediate hazard or trap created by the design, construction, control, and operation of the location lulling pedestrians into a false sense of security. Castro v. City of Thousand Oaks, (2015) 239 Cal.App.4th 1451 and 2) While these conditions on their own are enough to create a dangerous condition of public property, a public entity may still be liable for a failure to provide lighting if a prior dangerous condition may require street lighting or other means to lessen the danger, such as in this case. Mixon v. Pac. Gas & Elec. Co., (2012) 207 Cal.App.4th 124, 133. Finally, Cross-Defendants defeated the City’s secondary immunity argument that it is not liable for failure to provide adequate signals and signs by arguing that, while Section 830.4 provides that a condition is not a dangerous condition merely because of the failure to provide regulatory traffic control signals, there is a volume of evidence regarding the various dangerous conditions at Curtner Avenue and Route 87. The court vigorously agreed with the attorneys for Cross- Defendants, Rachel Ostrander and Christine Reed, on all accounts and denied the City’s motion.

Meet associate attorney Rachel Ostrander

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