Gone v. Santa Clara Valley Transportation Authority CA6

Filed 2/25/16 Gone v. Santa Clara Valley Transportation Authority CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

PRANEETH GONE, H039234

(Santa Clara County

Plaintiff and Appellant, Super. Ct. No. 110CV173570)

v.

SANTA CLARA VALLEY

TRANSPORTATION AUTHORITY,

Defendant and Respondent.

Plaintiff and appellant Praneeth Gone (Plaintiff) sued defendant and respondent

Santa Clara Valley Transportation Authority (VTA) for injuries suffered after being

struck by a VTA light rail train. Plaintiff asserted two causes of action: negligence and

dangerous condition of public property. Plaintiff’s negligence claim was based on

several theories. He alleged: (1) VTA negligently “managed, maintained, . . . , repaired,

manufactured and designed” the subject light rail train; (2) VTA “negligently hired,

trained, and/or supervised” its agents and employees; and (3) VTA’s employee

negligently operated the train.

VTA moved for summary adjudication of both causes of action. (Code Civ. Proc.,

§ 437c, subd. (f); all further undesignated statutory references are to the Code of Civil

Procedure.) VTA argued there were no triable issues of material fact as to any of the

alleged negligent acts because VTA had not breached any duty of care it owed Plaintiff,

and the accident was due to Plaintiff’s sole negligence as a matter of law. VTA also

argued the dangerous condition of public property claim failed because there was no

dangerous condition and, in any event, it was entitled to design immunity under

Government Code section 830.6. The court granted summary adjudication of both causes

of action and, hence, summary judgment

We will reverse the grant of summary judgment. We conclude there are triable

issues of material fact regarding the speed limit at the location where the accident

occurred and the train’s speed at the time of the collision that preclude summary

adjudication of the negligence cause of action. With respect to the cause of action for

dangerous condition of public property, we conclude VTA was entitled to summary

adjudication on its design immunity defense, which is a complete defense to that cause of

action. We will therefore reverse the summary judgment and direct the trial court to enter

a new order denying summary adjudication of the negligence cause of action and

granting summary adjudication of the design immunity defense.

FACTS

On June 26, 2009, at approximately 3:40 p.m., Plaintiff disembarked from a

southbound VTA light rail train at the Fruitdale station in San José and walked to the at-

grade pedestrian crossing at the southern end of the platform (“Pedestrian Crossing” or

“Crossing”). Plaintiff opened one of the metal gates that separated the Crossing from the

platform and stepped onto the Crossing when a northbound train was entering the station.

Plaintiff took a few steps forward, looked to his right, saw the on-coming train, and froze.

Instead of continuing forward, out of the path of the train, Plaintiff turned to his right and

faced the on-coming train. He continued to turn to his right, back toward the station

platform. Plaintiff was struck in the left shoulder by the left front headlight of the train.

Plaintiff has no memory of the accident or the events that led to it. Our

description of the accident is based on (1) images from a video camera on the light rail

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train that struck Plaintiff, (2) the deposition testimony of the train operator, and (3) the

declaration of an eyewitness.

I. Description of the Fruitdale Station and Pedestrian Crossing

The Fruitdale station consists of a concrete platform that is several inches above

grade. There are two sets of light rail tracks—one on each side of the platform—that run

parallel to Southwest Expressway and travel along a southwest to northeast line. We

shall refer to the light rail trains that run through this station as “northbound” and

“southbound” trains, since that is how they are described in the record. The light rail

tracks are parallel to a third set of tracks that belongs to the Union Pacific Railroad.

The Fruitdale station (including the railroad tracks) is bound by a sound wall on

the northwest side and a cyclone fence on the southeast side. Passengers access the

station platform from two pedestrian crossings: (1) one at the northern end of the

platform, which is part of the sidewalk at the intersection of Fruitdale Avenue and

Southwest Expressway; and (2) the Pedestrian Crossing at the southern end of the

platform.

The Pedestrian Crossing is a concrete walkway at the southern end of the platform,

which crosses the northbound light rail tracks and the Union Pacific tracks, but not the

southbound light rail tracks. There are metal gates at each end of the Crossing. A first

set of three gates is on the platform. A second set of three gates is in the cyclone fence

that separates the station and the tracks from the sidewalk on the station side of

Southwest Expressway. The gates on the platform open inward. Pedestrians pull the

gates toward themselves before entering the Crossing. The walkway surface adjacent to

the gates is covered with yellow “ADA1 tactile warning strips.”

1

ADA refers to the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.).

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The light rail trains are electric and “very quiet.” Audible bells and flashing lights

on the platform and at the Pedestrian Crossing alert passengers that a train is coming.

The south end of the platform and the Crossing had: (1) two white signs with the word

“Look” in black letters under a two-way arrow (↔); (2) three sets of flashing lights and

audible bells; (3) two white, X-shaped sign with the words “Railroad Crossing” written in

black letters; and (4) two yellow signs with the words “No Train Horn.”

When facing south, looking toward the end of the platform, passengers can see

one set of lights, a “Railroad Crossing” sign, and the northbound tracks. When standing

at the gates where Plaintiff stood before he stepped onto the Crossing, passengers can see

one of the “Look” signs with the double arrows, a set of flashing lights, one of the

“Railroad Crossing” signs, and a “No Train Horn” sign.

The flashing lights and bells are activated only by northbound trains, since the

southbound tracks do not intersect with the Crossing. The activation circuit is 1693 feet

(approximately one third of a mile) south of the Crossing. The lights and bells are

activated 28 seconds before the train arrives. Plaintiff testified that prior to the accident,

he thought the lights flashed for both northbound and southbound trains and that if there

was more than one train in the station, it was confusing which lights were for which train.

At the time of the accident, Plaintiff was on his way home. He lived in an

apartment on Southwest Expressway, across the street from the Pedestrian Crossing.

Plaintiff had lived there for approximately six weeks before the accident and rode the

light rail every day. Most of the time, Plaintiff used the northern pedestrian crossing.

But about 20 percent of the time, he used the southern Pedestrian Crossing, which

provided the shortest route from the Fruitdale station to his apartment. Plaintiff estimated

he used the Crossing five to 10 times prior to the accident.

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II. Deposition Testimony of Train Operator Luna

The light rail train operator, Jess Luna, testified that the train had left the Bascom

station and was headed northbound, entering the Fruitdale station when the accident

occurred. The two stations are approximately one mile apart and the speed limit between

them is 55 miles per hour, the “normal operating speed.” It generally takes two minutes

to travel between the stations.

The controller for the light rail train has six “Power” settings (which are used to

accelerate), a “Coast” setting, and six “Brake” settings, which are labeled “B1” through

“B5” and “MB” (for maximum braking). Luna said that once he reaches the desired

speed, he places the controller in “Coast,” which is between the power and brake settings.

Luna generally moves the controller gradually from “Coast” to B1, B2, and B3 to bring

the train to a stop. The train decelerates more quickly as the brake settings increase. In

the normal course of events, Luna does not need to use the higher brake settings to stop

the train. Luna generally starts to decelerate about a quarter mile before the Fruitdale

station and moves the controller to B3 when he is about 100 feet from the station.

The speed limit at the station is 25 miles per hour if the operator is not going to

stop at that station. According to Luna, if the operator intends to stop, the speed limit is

15 miles per hour when the train enters any portion of the station. At the time of the

accident, Luna intended to stop at the Fruitdale station, since there were passengers

waiting for his train.

On the date of the accident, there were no obstructions that interfered with Luna’s

view of the tracks or the station itself as he approached. Similarly, photos demonstrate

there was nothing obstructing Plaintiff’s view of the tracks as he walked toward the

Crossing and when he stood at the gates. The weather was clear. Luna started to

decelerate about one quarter mile from the station. He started braking gradually, moving

the controller from B1 to B2 to B3. Luna testified that he moved the controller into the

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B3 position approximately 40 feet south of the platform. He later stated the controller

was in the B3 position one eighth of a mile (660 feet) from the station. As he approached

the station, Luna was aware that pedestrians could open the gate and walk onto the

Crossing.

The Fruitdale station is a “no horn area” because there are residences nearby.

Luna is more cautious when entering a no horn area: he comes into the station at

15 miles per hour, watches pedestrians more closely, and is more aware of his

surroundings. Normally, Luna does not use the train’s horn as he approaches the

Fruitdale station.

Luna first saw Plaintiff on the platform, walking toward the Crossing. Luna

understood Plaintiff would eventually use the Crossing because that is the only exit at

that end of the station. Luna estimated his train was one eighth of a mile from the station

at that point; the controller was in the B3 position; and his speed was 25 mile per hour.

When Luna next saw Plaintiff, he was standing at the gates on the platform side of the

Crossing. The warning bells and lights at the Crossing had been activated.

Luna then saw Plaintiff open a gate and step onto the Crossing. Luna testified he

was going 15 miles per hour when Plaintiff swung the gate open. He put the controller in

“MB” maximum braking mode and sounded his high horn (the loudest warning device on

the train) at the same time. The controller was already in the B3 position and Luna

estimated it took him less than a second to activate maximum braking and the horn.

There were one or two seconds between the time Luna hit his horn and the impact with

Plaintiff. Luna estimated the train’s speed was less than 15 miles per hour at the time of

impact.

The on-board video camera on Luna’s train recorded the accident. Neither party

submitted the recording to the court for review, but VTA’s evidence included 12 “video

snapshots” from the video camera with date and time information on each photo.

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III. Declarations of Eyewitness, Expert Witnesses, and Other Evidence

VTA’s evidence in support of the motion included a declaration from Antonio

Badillo, who was waiting on the platform for the northbound train when the accident

occurred. According to Badillo, Plaintiff stepped onto the Crossing in front of the on-

coming train. Badillo yelled at Plaintiff “to watch out, . . . a train [is] coming.” Badillo

heard others yelling at Plaintiff, too. Badillo heard the warning “bells dinging” and saw

the warning lights flashing. He questioned why Plaintiff did not see the train because

“[t]he train was almost on top of him when he walked out onto the track.” According to

Badillo, the train slowed down and the operator blew its horn.

VTA presented evidence that (1) between the date the Fruitdale station opened

(October 1, 2005) and the date of the accident (June 26, 2009), light rail trains made at

least 143,272 trips through the Fruitdale station; and (2) between July 1, 2006, and the

date of the accident, 375,000 passengers used the Fruitdale station. That is an average of

343.7 persons per day. Since the station opened, there have been no other reported

incidents at the Crossing.

VTA submitted the declaration of Stephen Werner, a mechanical engineer and

accident reconstruction expert. Werner opined that any reasonably attentive person at the

Crossing would have been made aware of the northbound train by the flashing lights and

the bells and “simply by looking southbound . . . before walking onto the right-of-way.”

Werner further opined that the train was approximately 135 feet from the Crossing when

Plaintiff walked onto the Crossing, and the train was traveling no more than 30 miles per

hour when Luna “went into maximum braking.” Werner also opined that if Plaintiff had

not frozen and turned back toward the platform, he would have had sufficient time to

clear the tracks and avoid being hit by the train.

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In opposition to the motion, Plaintiff relied on the declarations of two experts

(David Rondinone and John Glennon), which we summarize in the Discussion portion of

this opinion.

IV. Plaintiff’s Injuries

Transit Patrol officers found Plaintiff on the ground between the train and the

platform. Plaintiff had blood around his mouth and bruising on both sides; the left side of

Plaintiff’s face was swollen and he complained of abdominal pain. An emergency room

physician reported that Plaintiff had sustained a skull fracture, with brain injury, but the

extent of Plaintiff’s injuries would not be known until further testing had been completed.

There is no other evidence regarding Plaintiff’s injuries in the record.

V. VTA’s Employment and Training of Luna

When VTA first employed Luna, he was required to undergo a background check,

which included fingerprinting, disclosure of arrests and convictions, and a review of

Luna’s DMV record. Luna “successfully cleared the entire process.”

Luna worked for VTA as a bus driver before becoming a light rail operator in

2001. Upon becoming a light rail operator, Luna completed two to three months of

training (40 hours per week), which included classroom instruction and field training.

Luna worked as a light rail operator until July 2002; at that time, due to layoffs at VTA,

Luna returned to bus driving. When the Mountain View-Winchester line opened in 2005,

Luna returned to light rail train operation. He has held this job continuously since 2005.

When Luna returned to train operation in 2005, he received an additional month of

training. Because of the addition of new light rail lines, the rules and procedures had

changed, but the operation of the light rail trains remained the same. Luna also received

annual recertification training (16 hours over 2 days) and completed Safety Procedures

and Rules Adherence Testing in January 2009. Light rail operators are trained on five

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defensive driving techniques: (1) aim high while operating, (2) view the total traffic

picture, (3) keep your eyes scanning, (4) leave yourself an out, and (5) make sure others

see you. On August 22, 2006, all light rail employees received a memorandum from the

transportation superintendent regarding the proper use of audible warnings.

Light rail operators are supervised by two rail control supervisors who track rail

operations by radio in the Operations Control Center. VTA operators also report to the

VTA dispatcher at the start of each shift and at other points during the day. In addition,

there are three to five field supervisors on duty at all times.

VTA regularly performs unannounced “ride checks” of light rail operators, during

which time staff ride the train and evaluate the operator’s performance. “Ride checks”

are done without the knowledge of the operator; the ride check evaluators reveal

themselves only after the ride check has been completed. Luna received 37 ride checks

in eight years, which exceeded the standard of three ride checks per year. Whenever

there is a rule violation or operational deficiency, VTA policy requires the operator to

undergo customized, focused retraining. Luna was never charged with a rule violation or

operational deficiency and has never been required to undergo retraining.

Luna met all testing and training requirements and did not have any safety

violations prior to the accident. There were no prior incidents in which a train Luna was

operating collided with another vehicle or a pedestrian. Luna estimated he had driven the

route where the incident occurred 150 times before the accident involving Plaintiff.

Plaintiff’s evidence included Luna’s deposition testimony that prior to the

accident, Luna had not received any training on specific precautions to be taken when

approaching the Pedestrian Crossing at the Fruitdale station. Luna also testified there are

four other stations on the Mountain View-Winchester line that have the same type of

pedestrian crossing as the Fruitdale station.

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VI. Dangerous Condition of Public Property and Design Immunity

VTA’s evidence in support of its motion for summary adjudication of the

dangerous condition of public property claim included a declaration from Mark

Robinson, VTA’s Chief Engineering and Construction Officer. Robinson was the project

manager for the construction of the Vasona Light Rail Project, which included the

Fruitdale station and the Crossing. Robinson declared that the design of the Crossing was

presented to the California Public Utilities Commission (CPUC) for approval in May

2001 and approved on November 29, 2001. Attached to Robinson’s declaration was a

copy of the unpublished CPUC decision and order approving the construction of the

Crossing and two other crossings in the Vasona Light Rail Project (Santa Clara Valley

Transportation Authority (2001) Cal. P.U.C. Dec. No. 01-11-057 [2001 Cal. PUC Lexis

1035] (hereafter CPUC Decision)).

The CPUC Decision approved the following warning devices at the Crossing:

(1) the look-both-ways signs, (2) placement of the ADA tactile warning strips, “with a

swing gate outside of the freight tracks,” and (3) three sets of pedestrian flashers.

Robinson declared that the CPUC’s design plan approval was adopted by VTA and that

all pedestrian warning devices called for in the CPUC order were installed as approved.

According to Robinson, VTA inspected the warning devices before and after the accident

(on June 22 and June 29, 2009) and found them to be operational.

PROCEDURAL HISTORY

I. Pleadings

On June 3, 2010, Plaintiff filed a complaint for personal injuries in the superior

court. The complaint contained two causes of action: negligence and dangerous

condition of public property. The complaint alleged that (1) VTA’s employees

negligently operated the train that struck Plaintiff; (2) VTA’s employees negligently

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“entrusted, managed, maintained, drove, operated, repaired, manufactured, and

designed” the train; and (3) VTA negligently hired, trained and supervised its employees

in such a fashion as to cause or contribute to Plaintiff’s injuries.

VTA answered the complaint in July 2010. VTA’s affirmative defenses included

Plaintiff’s comparative negligence and design immunity.

II. Motion for Summary Judgment

VTA filed a motion for summary judgment or for summary adjudication of each

causes of action. VTA argued that Plaintiff could not state a cause of action based on

negligent operation of the train because there were no triable issues of fact on the

question whether Luna had beached a duty of care to Plaintiff. VTA asserted that it was

undisputed that Luna had no opportunity to stop the train in time to avoid the accident. It

also argued that Plaintiff breached his own duty of care and was the sole cause of his

injuries as a matter of law. VTA contended: (1) Luna had every right to assume Plaintiff

would heed the warning signals and stop at the gate; (2) Plaintiff had a duty to use his

senses to determine whether a train was coming before stepping onto the tracks, and

(3) Plaintiff breached his duty of care by violating Vehicle Code section 22451,

subdivision (a), which required Plaintiff to stop at the crossing because warning lights

were flashing and the train was “plainly visible.”

As for the negligent hiring, training, and supervision claim, VTA argued that

Plaintiff could not demonstrate a breach of a duty of care under this theory because there

were no facts that warned VTA that Luna presented an unreasonable risk of harm to third

persons as a train operator. VTA argued that based on its stringent hiring, training, and

supervision practices, and the undisputed fact that VTA had complied with those

practices with regard to Luna, Plaintiff could not establish negligence based on this

theory. As for the alleged negligent repair or maintenance claim, VTA argued that

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Plaintiff had not developed any facts that indicated the condition of the train had anything

to do with the accident.

VTA attacked Plaintiff’s dangerous condition of public property claim on two

grounds. First, it argued that Plaintiff could not establish there was a dangerous condition

at the Crossing. VTA asserted that a public entity is only required to make its property

safe for reasonably foreseeable careful use and that Plaintiff did not use the Crossing with

due care. Second, VTA argued that the dangerous condition claim was barred by the

government design immunity defense. VTA asserted that the absence of additional

warnings and locking gates at the Crossing were design decisions that were approved by

the CPUC and by VTA, and design immunity therefore applies.

III. Opposition to Motion for Summary Judgment

Plaintiff opposed the motion for summary judgment. Plaintiff’s papers in

opposition to the motion included a separate statement that asserted 89 new undisputed

facts and raised objections to VTA’s evidence.

Based on the declaration of VTA’s expert (Werner), in which Werner opined the

train was travelling no more than 30 miles per hour when Luna hit maximum braking,

Plaintiff argued that Luna violated CPUC General Order 143-B, section 7.05, which

limits rail speeds in pedestrian walkways to no more than 20 miles per hour. He also

argued that General Order 143-B and the operating rules of the VTA mandated a

substantially slower speed. And he argued that the accident could have been avoided if

the train had been traveling 20 miles per hour or even 28 miles per hour.

Plaintiff also argued that Vehicle Code section 22451 does not apply to the

Crossing and that VTA improperly relied on railway liability cases that were decided

before California adopted comparative negligence rules. He also argued that Luna was

responsible for the safe operation of the train and that he failed to follow VTA rules that

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required him to (1) decrease his speed and stop for pedestrians, (2) follow the “Basic

Speed Rule,” and (3) stop within one half the distance of any obstacle.

With regard to the dangerous condition of public property claim, Plaintiff argued

that VTA’s statistics were misleading since VTA had not presented any evidence of how

many passengers used the Crossing, as opposed to the station. He also argued that design

immunity does not apply because there was no evidence the CPUC engaged in an

informed exercise of discretion regarding: (1) the failure to install gates at the Crossing

that automatically lock when a train approaches, and (2) placement of the Crossing at a

location that leads nowhere and requires pedestrians to jaywalk. Plaintiff contended that

VTA’s showing was deficient because it had not submitted any plans, drawings or

specifications related to its design considerations or the as-built plans. Finally, Plaintiff

argued that the declarations of his experts created triable issues regarding the

reasonableness of VTA’s design and that VTA’s evidence was insufficient to support its

design immunity defense.

IV. VTA’s Reply

In reply, VTA’s submitted additional evidence relating to its design immunity

defense, including (1) the application it had filed with the CPUC for approval of the

Crossing, and (2) the as-built plans for the Crossing.

V. Order on Motion for Summary Judgment

The court granted summary adjudication of both causes of action and, hence,

summary judgment. In its order, the court separated Plaintiff’s several negligence

theories into the same three groups VTA used in its motion and explained why VTA had

prevailed on each theory. Regarding the alleged negligent manufacture and design claim,

the court treated the motion for summary judgment as a motion for judgment on the

pleadings and concluded that Plaintiff had not sufficiently stated such a claim. The court

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added, “Plaintiff seemingly concedes there is no evidence in support of negligent

manufacture/design of the train.”

As for the dangerous condition of public property claim, the court concluded that

VTA had met its initial burden of showing the property was not dangerous and that

Plaintiff had not submitted any evidence that created a triable issue of fact on that point.

In light of its conclusion, the court did not reach VTA’s design immunity defense.

DISCUSSION

I. Standard of Review

We review an order granting summary judgment de novo. (Lonicki v. Sutter

Health (2008) 43 Cal.4th 201, 206 (Lonicki); Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 860 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334

(Guz).) The trial court’s ruling on a motion for summary adjudication, like that on a

motion for summary judgment, is subject to this court’s independent review. (Certain

Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972.) In

determining whether summary judgment was proper, we analyze the propriety of granting

summary adjudication with regard to each of Plaintiff’s causes of action.

“In undertaking our independent review, we apply the same three-step analysis

used by the trial court. First, we identify the issues framed by the pleadings. Second, we

determine whether the moving party has established facts that justify judgment in its

favor. Finally, in most cases, if the moving party has carried its initial burden, we decide

whether the opposing party has demonstrated the existence of a triable issue of material

fact.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858-859, citing

Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 886-887.) Although

we apply the same analysis as the trial court, we independently determine the

construction and effect of the facts presented to the trial court as a matter of law.

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(Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515; Kasparian

v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 24.)

In performing our review, we view the evidence in a light favorable to the losing

party (Plaintiff), liberally construing that party’s evidentiary submission while strictly

scrutinizing the moving party’s own showing and resolving any evidentiary doubts or

ambiguities in the losing party’s favor. (Saelzler v. Advanced Group 400 (2001) 25

Cal.4th 763, 768-769.)

II. General Rules Regarding Summary Judgment and Summary Adjudication

“A motion for summary adjudication shall be granted only if it completely

disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of

duty.” (§ 437c, subd. (f)(1).) The statute thus authorizes motions for summary

adjudication that “reduce the costs and length of litigation” by limiting the substantive

areas of dispute. (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848,

1852 (Lilienthal); see also, Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97

(Catalano).)

Summary judgment motions serve a similar purpose, which is “to identify those

cases in which there is no factual issue which warrants the time and cost of factfinding by

trial.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735

(Martin).) Thus, the object of both procedures is “to cut through the parties’ pleadings”

to determine whether trial is necessary to resolve their dispute. (Aguilar, supra,

25 Cal.4th at p. 843.)

“A party can obtain summary judgment only by establishing the merit of his [or

her] case ‘as a matter of law.’ (. . . § 437c, subd. (c).) The phrase ‘as a matter of law’ is

another way of saying that the evidence available to the parties, and placed before the

court in support of and in opposition to the motion, raises no material issue that a trier of

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fact could resolve in favor of the party opposing the motion.” (Cole v. Town of Los

Gatos (2012) 205 Cal.App.4th 749, 756 (Cole).)

Summary adjudication motions are “procedurally identical” to summary judgment

motions. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1290.) A

summary judgment motion “shall be granted if all the papers submitted show that there is

no triable issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” (§ 437c, subd. (c).) To be entitled to judgment as a matter of law,

the moving party must show by admissible evidence that the “action has no merit or that

there is no defense” thereto. (Id., subd. (a).) A defendant moving for summary judgment

meets this burden by presenting evidence demonstrating that one or more elements of the

cause of action cannot be established or that there is a complete defense to the action.

(Id., subds. (o), (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 853-854.) Once the

defendant makes this showing, the burden shifts to the plaintiff to show that a triable

issue of material fact exists as to that cause of action or defense. (§ 437c, subd. (p)(2);

see Aguilar, at p. 850.) The party moving for summary judgment “bears an initial burden

of production to make a prima facie showing of the nonexistence of any triable issue of

material fact; if he [or she] carries his [or her] burden of production, he [or she] causes a

shift, and the opposing party is then subjected to a burden of production of his [or her]

own to make a prima facie showing of the existence of a triable issue of material fact.”

(Aguilar, at p. 850.)

III. Whether the Trial Court Could Summarily Adjudicate Each of Plaintiff’s

Negligence Theories Separately

Although Plaintiff pleaded his negligence claim as a single cause of action, he

relied on several different theories of negligence liability. VTA’s motion divided the

negligence claim into three groups that were based on related theories of liability:

(1) VTA’s vicarious liability for Luna’s negligent operation of the train (negligent

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operation); (2) VTA’s direct liability for negligent hiring, training, and supervision of

Luna (negligent hiring); and (3) VTA’s direct liability for negligent maintenance or repair

of the train (negligent maintenance). VTA’s motion addressed these theories of liability

separately, as it was required to do, since the issues on a motion for summary judgment

are framed by the pleadings. And the trial court’s order granting summary adjudication

of the negligence claim analyzed each theory of liability separately, using the same

groupings VTA had used.

Citing Catalano, supra, 82 Cal.App.4th 91, Plaintiff argues that since “summary

judgment cannot be granted on a part of a cause of action, if there are facts supporting a

triable issue for any negligence alleged in the cause of action, the motion must be

denied.” VTA argues that “by not thoroughly briefing the issues” and by failing to

provide reasoned argument with citation to authority, Plaintiff concedes the evidence

presented to the trial court was sufficient to support summary adjudication of the

negligent training and negligent maintenance claims and that Plaintiff has therefore

forfeited any challenge to the trial court’s ruling on those claims.

The parties do not cite any cases that address the question whether a court may

summarily adjudicate negligence claims that are based on different wrongful acts or

theories of liability. In Lilienthal, supra, 12 Cal.App.4th 1848, the plaintiffs sued their

former attorneys for legal malpractice. The complaint contained two causes of action:

breach of contract and negligence. Although the defendants in Lilienthal provided legal

services to the plaintiffs at different times on two separate and distinct matters (the

Murillo matter and the Barton matter), the complaint combined the two matters in each

cause of action. The defendants filed a motion for summary adjudication arguing, among

other things, that the malpractice claim as to the Murillo matter was barred by the statute

of limitations. The trial court denied the motion reasoning that summary adjudication

would not dispose of an entire cause of action. (Id. at pp. 1850-1851.) But the appellate

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court issued a peremptory writ, directing the trial court to vacate its order and consider

the motion on the merits. (Id. at p. 1855.)

The Lilienthal court held that “a party may present a motion for summary

adjudication challenging a separate and distinct wrongful act even though combined with

other wrongful acts alleged in the same cause of action.” (Lilienthal, supra,

12 Cal.App.4th at pp. 1854-1855.) The court examined the meaning of “cause of action”

in section 473c, subdivision (f). It observed that “California courts have defined cause of

action as ‘ “simply the obligation sought to be enforced.” ’ [Citation.]” (Lilienthal, at

p. 1853.) “ ‘In a broad sense, a “cause of action” is the invasion of a primary right (e.g.

injury to person, injury to property, etc.). . . . [¶] However, in more common usage,

“cause of action” means a group of related paragraphs in the complaint reflecting a

separate theory of liability. . . . [¶] As used in [section] 437c[ subdivision ](f), “cause of

action” should be interpreted in the latter sense (theory of liability).’ ” (Lilienthal, at

p. 1853, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The

Rutter Group 1992 § 10-39, p. 10-12.1, italics in original.)

The Lilienthal court concluded: “In the instant case, plaintiffs seek to recover

damages based on two separate and distinct obligations. Each obligation creates a

separate and distinct claim. The first obligation relates to legal services performed on the

Murillo matter, and the second obligation relates to legal services performed on the

Barton matter. There is no dispute that the two matters have no relation to each other and

involve legal services performed at different times, with different and distinct obligations,

and distinct and separate alleged damages. Under California law, the allegations relating

to the Murillo and Barton matters involve two separate and distinct causes of action

regardless of how pled in the complaint.” (Lilienthal, supra, 12 Cal.App.4th at p. 1854.)

The court also concluded that the policy behind summary adjudication motions,

“to ‘promote and protect the administration of justice, and to expedite litigation by the

elimination of needless trials,’ ” was not effectively served by denying summary

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adjudication. (Id. at p. 1854.) “ ‘[The] statement and the wording of subdivision (f)

show clearly that the Legislature wished to narrow summary adjudication from its

[former] broad focus on ‘issues’ (sometimes interpreted to mean only asserted “facts”) to

a more limited focus on causes of action, affirmative defenses, claims for punitive

damages and claims that defendants did not owe plaintiffs a duty.’ ” (Lilienthal, at

p. 1854.) Although in Lilienthal each claim was joined with the other claim within each

cause of action, the claims were in fact separate and distinct causes of action, having no

relationship to each other. Thus, the Lilienthal court held, section 437c, subdivision (f)

could properly be utilized to challenge each separate and distinct matter. (Lilienthal, at

pp. 1854-1855.)

Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110 (Fineman) is

also instructive. In that case, the plaintiff sued Bank of America for honoring 83

company checks signed by only one of two required signatories. Bank of America

moved for summary adjudication on the ground that claims as to 23 of the 83 checks

were time-barred. The trial court granted the motion, and the appellate court concluded

that summary adjudication was proper, holding that, for purposes of section 437c,

subdivision (f), payment of each of the checks constituted a “separate and distinct

wrongful act” under Lilienthal. (Fineman, at p. 1118.)

In Catalano, supra, 82 Cal.App.4th at pages 93-94—which Plaintiff cites—the

plaintiffs alleged fraudulent breach of fiduciary duty and intentional misrepresentation

against their former attorneys, and they sought punitive damages. The defendant moved

for summary adjudication of the punitive damages claim based on five different factual

allegations. The trial court granted summary adjudication on four of the five grounds

asserted, but denied the motion as to the fifth ground. The appellate court concluded that

“[s]uch piecemeal adjudication of factual allegations supporting a claim for punitive

damages is prohibited by . . . section 437c, subdivision (f)(1) unless the entire claim for

punitive damages can be eliminated. Unlike the claims in Lilienthal, which were

19

completely separate and distinct, having nothing to do with one another, the claim for

punitive damages here is based on an interrelated set of facts and circumstances. If any

one or more of the facts would support a claim for punitive damages, then summary

adjudication is not available to eliminate from trial other facts relating to the claim for

punitive damages.” (Id. at pp. 97-98; see also Nazir v. United Airlines, Inc. (2009)

178 Cal.App.4th 243, 251 [separate acts that are part of a pattern of workplace

discrimination cannot be summarily adjudicated].)

In both Lilienthal and Fineman the allegations of the complaint could be divided

into separate and distinct wrongful acts, some of which were barred by the statute of

limitations. As we have noted, in its motion, VTA divided the negligence cause of action

into three separate theories, and the trial court adopted that same structure in its order.

But Plaintiff actually alleged negligence on more than three grounds. What we have

called the “negligent maintenance” theory actually alleged five separate wrongful acts,

and the “negligent training” theory alleged three different wrongful acts. As we shall

explain, even if we were to conclude that VTA’s three theories of negligence liability

were sufficiently separate and distinct that they could be summarily adjudicated

separately, there are grounds for reversal under each theory.

IV. Negligence Cause of Action

The elements of a cause of action for negligence are: (1) a legal duty to use due

care; (2) a breach of that duty; (3) proximate or legal cause; and (4) resulting injury.

(Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) In its motion, VTA focused

on the second element and argued it had not breached any duty of care to Plaintiff.

To determine the propriety of granting summary adjudication of the negligence

cause of action, we must examine each of the different theories of liability alleged in the

complaint. For ease of reference, we shall divide our discussion into the same three

categories the parties and the trial court used below.

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A. Negligent Maintenance of Train

Plaintiff alleged VTA negligently “managed, maintained, . . . , repaired,

manufactured and designed” the light rail train involved in the accident. VTA argued in

its motion that “[t]he general allegation that the train was negligently manufactured

and/or designed is without meaning since plaintiff has not named the designer or

manufacturer . . . and[,] since no employee of defendant had anything to do with the

design or manufacturing of the train[,] no liability can be imposed on VTA.” This is all

VTA’s points and authorities had to say regarding these theories of liability. And VTA’s

separate statement did not contain an undisputed material fact (UMF) that addressed

these allegations. In his opposition, Plaintiff did not bring any of these failings to the trial

court’s attention. Nor did he submit any argument or new facts to support these

allegations.

In its order granting summary adjudication on this theory, the trial court

(1) addressed only the allegations of negligent manufacture and design, (2) held the

complaint did not contain sufficient facts to state a cause of action for negligent

manufacture or design, and (3) stated, “Plaintiff seemingly concedes there is no evidence

in support of negligent manufacture/design of the train.” The court did not mention the

negligent management, maintenance, or repair of the train allegations.

As the party moving for summary judgment, VTA had the burden to show it was

entitled to judgment with respect to all theories of liability asserted by Plaintiff. (Lopez v.

Superior Court (1996) 45 Cal.App.4th 705, 707.) Thus, VTA bore the initial burden of

production to make a prima facie showing there were no triable issues of material fact

with regard to the claim that VTA negligently “managed, maintained, . . . , repaired,

manufactured and designed” the train. (Aguilar, supra, 25 Cal.4th at p. 850.) To

accomplish this, VTA was required to present either (1) affirmative evidence negating, as

a matter of law, an essential element of Plaintiff’s claim; or (2) evidence that Plaintiff

21

“does not possess, and cannot reasonably obtain, needed evidence.” (Guz, supra,

24 Cal.4th at p. 334; Aguilar, at p. 854.) Since VTA did not meet its initial burden of

production, the burden never shifted to Plaintiff to show that a triable issue of material

fact existed. (§ 437c, subd. (p)(1), (2); Y.K.A. Industries, Inc. v. Redevelopment Agency

of City of San Jose (2009) 174 Cal.App.4th 339, 353.) VTA’s motion for summary

adjudication must therefore be denied with regard to this theory. (Consumer Cause, Inc.

v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

B. Negligent Hiring, Training, and Supervision

Plaintiff’s complaint also alleged VTA “negligently hired, trained, and/or

supervised” its agents and employees “in such a fashion as to cause and/or contribute to”

the accident.

As to negligent hiring, “an employer can be held liable for negligent hiring if he

[or she] knows the employee is unfit, or has reason to believe the employee is unfit or

fails to use reasonable care to discover the employee’s unfitness before hiring him [or

her]. [Citations.]” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th

828, 843 (Evan F.).) In support of its motion, VTA presented evidence that during the

hiring process, it conducted criminal background and DMV checks on Luna and had him

fingerprinted, and that Luna “successfully cleared the entire process.” VTA also

presented evidence that Luna successfully completed his training and had no rule

violations or operational deficiencies to suggest he was unfit to operate a light rail train.

VTA thus met its initial burden to make a prima facie showing to shift the burden to

Plaintiff to produce evidence that created a triable issue on the negligent hiring theory.

Plaintiff did not dispute any of VTA’s facts relating to negligent hiring and did not

submit any new facts to demonstrate VTA knew, had reason to believe, or failed to use

reasonable care to discover that Luna was unfit to operate a light rail train before hiring

him.

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As for negligent training, VTA presented evidence that Luna (1) completed two or

three months of training as a light rail operator when assigned those duties in 2001;

(2) completed a one-month refresher course when he returned to train operation in 2005;

(3) completed two days of recertification training each year; (4) was tested on safety

procedures in 2009; and (5) was trained on defensive driving techniques and audible

warning protocols. VTA also presented evidence that Luna met all testing and training

requirements, did not have any safety violations, and was never required to undergo

retraining because of operational deficiencies or rules violations. This was sufficient for

VTA to meet its initial burden to make a prima facie showing to shift the burden to

Plaintiff to produce evidence that created a triable issue on the negligent training theory.

In opposition to the motion, Plaintiff presented excerpts from Luna’s deposition in

which he testified that (1) prior to the accident, he had seen pedestrians use the Crossing

to cross over the northbound light rail tracks at the Fruitdale station, and (2) he did not

receive any training on specific precautions to be taken when approaching the Fruitdale

station because of the presence of the Crossing. Luna also testified there are four other

stations on the Mountain View-Winchester line that have this type of pedestrian crossing.

We conclude the evidence that Luna had not received any training on how to approach

the Crossing was sufficient to create a triable issue on the negligent training claim and

preclude summary adjudication of the negligence cause of action based on this theory.

As for alleged negligent supervision, VTA presented evidence that: (1) VTA light

rail operators are supervised by dispatchers, rail control supervisors via radio, and field

supervisors; (2) VTA’s supervisory staff completed 37 unannounced ride checks on

Luna’s trains (more than 4 per year) that did not uncover any operational deficiencies or

require retraining; and (3) VTA supervisors issued memoranda regarding the proper use

of warning devices. Luna had also driven a light rail train for approximately five years

and had not had any prior collisions while operating a train. This was sufficient for VTA

to meet its initial burden to make a prima facie showing to shift the burden to Plaintiff to

23

produce evidence that created a triable issue relating to negligent supervision. Plaintiff

did not dispute any of VTA’s facts relating to negligent supervision and did not submit

any new facts to support his claim. Therefore, the trial court properly granted summary

adjudication on this theory.

In summary, with regard to the allegation that VTA negligently “hired, trained,

and/or supervised” its agents and employees, we conclude that while VTA met its burden

of making a prima facie showing of the nonexistence of any triable issue of fact with

regard to these theories of liability, Plaintiff met his burden of producing evidence that

created a triable issue of fact on the question of negligent training, which precludes

summary adjudication.

C. Negligent Operation of Train

Although VTA’s motion was directed to the breach element, on appeal, the parties

dispute whether the ordinary duty of care or the heightened duty of a common carrier

applies in this case.

The duty of a train operator toward persons using a railroad crossing is “ ‘to

exercise ordinary care to discover any such persons on or near the crossing and to

exercise ordinary care to avoid injuring such persons after their presence on or near the

track [is] discovered.’ ” (Essick v. Union Pacific Railway Co. (1960) 182

Cal.App.2d 456, 461; original italics.) In Essick, which involved a collision between a

train and a car, the court stated: “Obviously, the railroad may not be required to

guarantee the safety of those crossing its tracks. It is not required to anticipate that at

every crossing, an automobile will be driven in the path of the train. It is only required to

use ordinary care to discover such automobiles and to thereafter exercise care to avoid a

collision.” (Id. at p. 463.) In Herrera v. Southern Pacific Co. (1957) 155 Cal.App.2d

781, 785, the court explained: “The train crew cannot assume that a highway crossing in

the middle of a city will be clear and they must keep a reasonable lookout for the

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presence of intersecting traffic. [Citations.] This implies as a corollary the further

obligation to have the train under such control as may be reasonably necessary to deal

with situations which an ordinarily prudent operator would anticipate.”

As for the duty of a common carrier, “[t]he special relationship of common carrier

and passenger gives rise to the highest duty of care.” (McGettigan v. Bay Area Rapid

Transit Dist. (1997) 57 Cal.App.4th 1011, 1017 (McGettigan).) “Civil Code section

2100 provides: ‘A carrier of persons for reward must use the utmost care and diligence

for their safe carriage, must provide everything necessary for that purpose, and must

exercise to that end a reasonable degree of skill.’ The duty imposed by [Civil Code]

section 2100 applies to public carriers as well as private carriers and requires them to do

all that human care, vigilance, and foresight reasonably can do under the circumstances.

[Citation.] Common carriers are not, however, insurers of their passengers’ safety.

Rather, the degree of care and diligence which they must exercise is only such as can

reasonably be exercised consistent with the character and mode of conveyance adopted

and the practical operation of the business of the carrier. [Citations.]” (Lopez v. Southern

Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785.)

The court in McGettigan noted that “this heightened degree of care is owed only

while ‘passengers are in transitu, and until they have safely departed the carrier’s

vehicle.’ [Citation.] . . . ‘ “[t]he passenger while in actual progress upon his journey is

exposed to countless hazards, gives himself wholly in charge of the carrier. . . . But . . . a

passenger’s entrance to the carrier’s station is characterized by none of the hazards

incident to the journey itself” ’ ” and after the passenger has exited the carrier’s vehicle,

the carrier is bound to exercise only a reasonable degree of care for the protection of its

passengers. (McGettigan, supra, 57 Cal.App.4th at pp. 1017-1018, italics in original.)

The plaintiff in McGettigan alleged that before being injured, he was ordered off of a Bay

Area Rapid Transit (BART) train and left standing on the platform. Due to his extreme

inebriation, he could not recall how he was injured. The court concluded that “[o]nce he

25

had safely exited the train, the relationship of carrier and passenger terminated. He was

in a place of relative safety” and the heightened duty of care owed by a common carrier

to its passengers did not apply. (Ibid.)

Plaintiff argues that the heightened duty of care of a common carrier applies

because Plaintiff had not reached “a place outside the sphere of any activity of the carrier

which might reasonably constitute a mobile or animated hazard to the passenger” and that

McGettigan is distinguishable. We need not determine whether the duty of ordinary care

of a train operator at a crossing or the heightened duty of a common carrier applies, since

we conclude there are triable issues of fact that preclude summary adjudication even

under the lower standard of care. As we shall explain, there are disputed factual issues

regarding the speed of the train as it approached the Crossing and the speed limit at the

Crossing that preclude summary adjudication of the claim based on alleged negligent

operation of the train.

1. Disputed Facts Regarding Speed of Train

Luna’s testimony was inconsistent with respect to when he moved his controller

into the B3 brake setting, which in turn impacted the train’s speed. He testified that he

generally moves the controller into the B3 position when he is 100 feet from the station.

He stated that on the day of the accident, he moved the controller into the B3 position

when the train was 40 feet from the platform. Later, he testified that he moved the

controller into the B3 position when he was an eighth of a mile (approximately 660 feet)

from the station.

Luna estimated that he first saw Plaintiff on the platform, walking toward the

Crossing, when the train was an eighth of a mile from the platform. At that point, the

controller was in the B3 position and his speed was 25 miles per hour. Luna also testified

that the train was traveling 15 miles per hour when he saw Plaintiff swing the gate open

26

about four seconds prior to impact and that the train was traveling less than 15 miles per

hour at the time of impact.

Stephen Werner (VTA’s accident reconstruction expert) determined that the train

was “traveling no more than 30 miles per hour” when Luna applied maximum braking.

Based upon his review of the “train video,” David Rondinone (Plaintiff’s accident

reconstruction expert) opined that: (1) 15 seconds before impact, the train was traveling

approximately 45 miles per hour; (2) when Plaintiff opened the gate at the Crossing (four

seconds before impact), the train was traveling 30 miles per hour; (3) Luna took more

than one second to react and apply maximum braking; (4) at the time of impact, the train

was traveling 20 miles per hour.

In summary, the parties agree that Plaintiff opened the gate four seconds before

impact. Luna testified that his speed at that point was 15 miles per hour; Rondinone

opined that it was 30 miles per hour. Werner opined that one second later, Luna’s speed

was less than 30 miles per hour. Luna testified that his speed at the time of the impact

was less than 15 miles per hour and Rondinone opined that it was 20 miles per hour.

Thus, there are disputed factual issues regarding how fast the train was going as it

approached the Crossing and when it hit Plaintiff.

2. Disputed Facts Regarding Speed Limit at Crossing

Luna testified that if the operator intends to stop at the Fruitdale station—as he did

at the time of the accident—the speed limit is 15 miles per hour when the front of the

train enters any portion of the station. Luna also testified that because the Fruitdale

station is a “no-horn” area, he generally enters the station at 15 miles per hour. In

addition to this testimony, the parties submitted evidence regarding CPUC regulations

governing speed limits on light rail transit lines.

The CPUC is charged with adopting rules and regulations regarding the

procedures for all rail transit systems in California. (Pub. Util. Code, § 778.) VTA is

27

“subject to the regulations of the [CPUC] relating to safety appliances and procedures.”

(Pub. Util. Code, § 100168.) To that end, the CPUC has adopted General Order 143-B,

which sets forth safety rules and regulations for light rail transit systems. “The purpose

of these rules and regulations is to establish safety requirements governing the design,

construction, operation, and maintenance of light-rail transit systems in the State of

California.” (General Order 143-B, § 1.03.)

Part 7 of General Order 143-B contains rules regarding “operating speed and train

protection requirements.” Part 7 begins with section 7.01, the “Basic Speed Rule,” which

provides: “The other provisions of this part notwithstanding, the operator of [a light rail

vehicle] shall at all times operate at a safe speed that is consistent with weather, visibility,

track conditions, traffic, traffic signal indications, and the indications of [automatic train

protection] systems where used.” (General Order 143-B, §§ 7.01, 2.02, 2.09.)

Section 7.03 of the order provides that the “maximum speeds permitted on [light

rail transit] shall be established in accordance with the requirements presented in Table

1.” (General Order 143-B at §§ 7.03, 2.08.) Table 1 of General Order 143-B (hereafter

Table 1) sets forth “maximum permitted speeds” for light rail systems that range from

20 miles per hour to 55 miles per hour, depending on the location’s (1) alignment

classification (“exclusive,” “semi-exclusive,” or “non-exclusive” as defined in section

9.04); (2) crossing or intersection controls; and (3) the type of “train protection” in place.

Section 7.05 of General Order 143-B, which is entitled “Speed Permitted On

Pedestrian Malls,” provides: “Maximum [light rail vehicle] speed permitted on a

promenade, pedestrian walk, concourse, mall, or plaza, which is closed to motor vehicles

but where pedestrian movement across the tracks is authorized, is 20 miles per hour

unless otherwise restricted (see Table 1 . . .).” (General Order 143-B, §§ 7.05, 2.09.)

This speed limit is the same as that stated for alignment classification 9.04(c)(2) on Table

1. Table 1 also provides that “lower speeds”—speeds less than 20 miles per hour—“may

be required for malls paved flush with the tracks.”

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The parties disagree as to which General Order 143-B alignment classification

applies to the Crossing for the purpose of determining the maximum speed permitted at

the Crossing under the order. Plaintiff asserts that the Crossing falls under alignment

classification 9.04 (c)(1), which applies to a “pedestrian mall” and is subject to a 20 mile-

per-hour speed limit. Plaintiff argues that under General Order 143-B, section 7.05, a

“pedestrian mall” is defined as “a promenade, pedestrian walk, concourse, mall or plaza,

which is closed to motor vehicles but where pedestrian movement across the tracks is

authorized.” Plaintiff contends the Crossing meets this definition because it was a

pedestrian walkway that permitted movement across the northbound tracks and was

closed to vehicular traffic. Indeed, the photographs in evidence support that assertion.

Plaintiff contends the trial court erred when it concluded that section 7.05 and its 20-

mile-per-hour speed limit do not apply because the Crossing is not a pedestrian mall.

VTA contends the Crossing falls under alignment classification 9.04(b)(1), for

“semi-exclusive” alignments, which are defined as a “[f]ully exclusive right-of-way with

at-grade crossings, protected between crossings by a fence or substantial barrier, if

appropriate to the location.” The photographs in evidence also support that assertion.

VTA argues that according to Table 1, the maximum permitted speed for the Crossing is

55 miles per hour since the Crossing was protected by flashing lights, bells, gates and

automatic block signal (ABS) protection. (VTA did not submit any evidence that

explains ABS protection or that the Crossing affords ABS protection.)

According to Table 1, the speed limit at semi-exclusive crossings is 35, 45, or 55

miles per hour or “no limit,” depending on the type of “crossing or intersection control”

at the location. The parties characterize this as a legal question that requires us to

interpret General Order 143-B, section 7.05. But in our view, the applicability of section

7.05 and the selection of the proper “maximum permitted speed” from Table 1 is

primarily a factual question, since the maximum permitted speed is based on the

existence of a number of facts, including: the alignment classification, crossing or

29

intersection controls; and the type of “train protection.” The “Notes” on Table 1 suggest

that “stopping sight distance” and whether the location is a “mall paved flush with the

tracks” also affect the maximum permitted speed. The evidence submitted both in

support of and in opposition to the motion for summary judgment is insufficient to make

that determination.

In summary, Luna testified that the speed limit as he entered the Fruitdale station

was 15 miles per hour. The record does not reveal whether Luna’s testimony was based

on General Order 143-B, some other CPUC rule, a VTA rule, or some other fact. The

parties dispute whether the maximum permitted speed at the Crossing under General

Order 143-B is 25 miles per hour or 55 miles per hour. That the parties dispute the

application of section 7.05 of General Order 143-B and the broader question of what is

the maximum permitted speed at the Crossing reinforces our conclusion that there are

triable issues of fact regarding the speed limit at the crossing. Finally, the operation of

the train was also subject to the Basic Speed Rule, which requires the operator to operate

the light rail train “at a safe speed that is consistent with weather, visibility, track

conditions, traffic, traffic signal indications, and the indications of [automatic train

protection] systems where used.” A maximum speed limit is not a license, or

requirement, to travel at that maximum speed under all circumstances. (Walters v. Du

Four (1933) 132 Cal.App. 72, 83.) Negligence may occur because a train operator drives

too fast under the circumstances, even though not exceeding the maximum speed limit.

Where conditions and circumstances and the safety of persons and property require a

speed less than the maximum speed limit, it is the duty of the train operator to slow the

speed of the train. (See Dam v. Bond (1926) 80 Cal.App. 342, 350.) A trier of fact could

conclude, under all of the circumstances, that a speed less than 15 miles per hour was

required under the Basic Speed Rule and that, even if the train was traveling 15 miles per

hour as it entered the station, Luna breached his duty of ordinary care.

30

We conclude that disputed factual issues regarding the speed limit at the Crossing

also preclude summary adjudication of the negligent train operation claim.

3. Plaintiff’s Comparative Negligence

VTA acknowledges this case is subject to a comparative negligence analysis. (Li

v. Yellow Cab (1975) 13 Cal.3d 804.) But VTA argues the accident was due to Plaintiff’s

sole negligence as a matter of law. Based upon video images in the record, VTA has

made a showing that the accident was due primarily, if not entirely, to Plaintiff’s

negligence. But given the disputed factual issues regarding the train’s speed as it

approached the station, the applicable speed limit, and the question whether Luna

violated the duty of ordinary care, we cannot say as a matter of law that a jury would not

assign even a small portion of responsibility for the accident to Luna and VTA. As we

have explained, VTA is not required to guarantee the safety of those crossing its tracks or

to anticipate that a pedestrian will step into the path of a train at every crossing. “It is

only required to use ordinary care to discover such [persons] and to thereafter exercise

care to avoid a collision.” (Essick, supra, 182 Cal.App.2d at p. 463.) But the factual

disputes regarding the speed limit and the train’s speed preclude a determination that the

accident was based on Plaintiff’s sole negligence as a matter of law.

On appeal, the parties dispute whether Vehicle Code section 22451, subdivision

(a) applies in this case. That code section provides, in relevant part, that a “pedestrian

approaching a . . . rail transit grade crossing shall stop not less than 15 feet from the

nearest rail and shall not proceed until he or she can do so safely, whenever the following

conditions exist: [¶] (1) A clearly visible electric or mechanical signal device . . . gives

warning of the approach or passage of a train . . . . [¶] (2) An approaching train . . . is

plainly visible or is emitting an audible signal and, by reason of its speed or nearness, is

an immediate hazard.” In light of our conclusions, we need not reach the legal question

whether Vehicle Code section 22451, subdivision (a) applies here.

31

D. Conclusion

Regarding the allegations that VTA negligently “managed, maintained, . . . ,

repaired, manufactured and designed” the subject train, we conclude that VTA did not

meet its initial burden of production to state a prima facie case and the burden therefore

never shifted to Plaintiff to show that a triable issue of material fact existed. As for

allegations that VTA “negligently hired, trained, and/or supervised” its agents and

employees, although VTA met its initial burden on the motion, Plaintiff met his burden of

producing evidence that created a triable issue of fact on the question of negligent

training, which precludes summary adjudication on this theory. Finally, disputed factual

issues regarding the speed limit at the Crossing and the train’s speed as it approached the

Crossing preclude summary adjudication of the negligent train operation claim. For these

reasons, we conclude the court erred when it granted summary adjudication of the

negligence cause of action.

V. Dangerous Condition of Public Property Claim and Design Immunity

The cause of action for dangerous condition of public property against VTA “is

defined by statute, specifically the portion of the Government Claims Act entitled

Liability of Public Entities and Public Employees. (Gov. Code, §§ 814-895.8, added by

Stats. 1963, ch. 1681, § 1, pp. 3266-3284; see City of Stockton v. Superior Court (2007)

42 Cal.4th 730, 741-742 . . . .) These statutes declare a general rule of immunity (Gov.

Code, § 815) and then set out exceptions to that rule. Plaintiff invokes the exception for a

dangerous condition of public property, as set out in Government Code section 835 . . . .”

(Cole, supra, 205 Cal.App.4th at p. 757.)

As set forth in Government Code section 835, the cause of action for dangerous

condition of public property consists of the following elements: “(1) a dangerous

condition of public property; (2) a foreseeable risk, arising from the dangerous condition,

32

of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the

condition, i.e., either negligence on the part of a public employee in creating it, or failure

by the entity to correct it after notice of its existence and dangerousness; (4) a causal

relationship between the dangerous condition and the plaintiff’s injuries; and

(5) compensable damage sustained by the plaintiff.” (Cole, at p. 758.)

VTA is entitled to summary adjudication of the dangerous condition claim if it

demonstrated either that (1) Plaintiff was unable to establish one of the elements of his

claim or (2) VTA possessed a complete defense to Plaintiff’s cause of action. (Cole,

supra, 205 Cal.App.4th at p. 758, citing § 437c, subds. (p)(2), (n).) VTA’s motion for

summary adjudication attacked this cause of action in two ways. First, VTA argued that

Plaintiff could not establish the first element: that there was a dangerous condition at the

Crossing. Second, VTA relied on the design immunity defense (Gov. Code, § 830.6).

The trial court agreed that Plaintiff could not establish that there was a dangerous

condition at the Crossing; consequently, it did not address VTA’s design immunity

defense. We begin our analysis by addressing design immunity.

A. Legal Principles Regarding Design Immunity

Design immunity is an affirmative defense a public entity defendant must plead

and prove. (Cameron v. State (1972) 7 Cal.3d 318, 325 (Cameron).) Government Code

section 830.6, which sets forth the defense, provides in relevant part: “Neither a public

entity nor a public employee is liable . . . for an injury caused by the plan or design of a

construction of, or an improvement to, public property where such plan or design has

been approved in advance of the construction or improvement by the legislative body of

the public entity or by some other body or employee exercising discretionary authority to

give such approval or where such plan or design is prepared in conformity with standards

previously so approved, if the trial or appellate court determines that there is any

substantial evidence upon the basis of which (a) a reasonable public employee could have

33

adopted the plan or design or the standards therefor or (b) a reasonable legislative body or

other body or employee could have approved the plan or design or the standards

therefor.”

A public entity claiming design immunity must establish three elements: “(1) a

causal relationship between the plan or design and the accident; (2) discretionary

approval of the plan or design prior to construction; and (3) substantial evidence

supporting the reasonableness of the plan or design.” (Cornette v. Department of

Transportation (2001) 26 Cal.4th 63, 66, 69 (Cornette).)

Design immunity reflects the Legislature’s intent to insulate discretionary

planning and design decisions by responsible public officials from review in tort

litigation. (Baldwin v. State (1972) 6 Cal.3d 424, 434, superseded by statute on another

ground as stated in Cornette, supra, 26 Cal.4th at pp. 70-71.) The purpose of design

immunity “is to prevent a jury from second-guessing the decision of a public entity by

reviewing the identical questions of risk that had previously been considered by the

government officers who adopted or approved the plan or design. [Citation.]” (Cornette,

supra, 26 Cal.4th at p. 69.) “[T]o permit reexamination in tort litigation of particular

discretionary decisions where reasonable [people] may differ as to how the discretion

should be exercised would create too great a danger of impolitic interference with the

freedom of decision-making by those public officials in whom the function of making

such decisions has been vested.” (Ibid., internal quotation marks and citations omitted.)

To obtain summary adjudication on its affirmative defense of design immunity,

VTA had the initial burden to “show” a “complete defense.” (§ 437c, subd. (p)(2).) To

meet that burden, VTA was required to present admissible evidence on each element of

the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad

Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Lack of substantial evidence on any

one element bars relief, “even if the plaintiff failed to introduce a scintilla of evidence

challenging that element.” (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 831.)

34

B. Evidence Relating to Design Immunity Defense

VTA’s evidence in support of its design immunity defense included the

declaration of Mark Robinson, VTA’s Chief Engineering and Construction Officer.

Robinson was the “Vasona Project Manager” and oversaw the design and approval of the

Vasona Light Rail Project (VLRP), including the construction of the Crossing. Robinson

declared that design engineers hired by VTA prepared the design of the Crossing, but he

did not identify those engineers by name. Robinson further declared that: (1) the CPUC

is charged with approval of all California rail projects; (2) he presented the design of the

Crossing to the CPUC for approval in May 2001; (3) the CPUC approved the design in

November 2001; (4) VTA “adopted” the CPUC’s “design plan approval”; and (5) “[a]ll

pedestrian warning devices were installed as approved.”

The CPUC has “safety jurisdiction over VTA’s light rail transit crossings” under

Public Utilities Code sections 99152, 778, and 100168. (Santa Clara Valley

Transportation Authority v. Public Utilities Com. (2004) 124 Cal.App.4th 346, 354, 365.)

Robinson attached a copy of the CPUC Decision to his declaration. In that decision, the

CPUC approved the construction of three crossing on the VLRP, including the subject

Crossing. According to the CPUC Decision, VTA approved the project on May 4, 2000,

almost a year before it sought CPUC approval.

VTA submitted its application to the CPUC in May 2001. The CPUC’s Rail

Safety and Carrier’s Division–Railroad Crossings Engineering Section staff inspected the

site of and examined the need to construct the proposed crossings and recommended that

VTA’s application be approved. The CPUC ordered that “[p]rotection at the crossings

shall be as indicated by text, plans attached to [VTA’s] application and as further

described by Appendices A and B of this order.” The CPUC approved the construction

of the three crossings on November 29, 2001.

35

The CPUC order approved the placement of the Crossing at the southern end of

the station platform. It ordered that: “Pedestrian warning signs ‘LOOK BOTH WAYS’

will be placed at the crossing. Two sets of pedestrian ADA tactile warning strips, (with a

swing gate outside of the freight tracks), will be placed at the crossing, two at the ends of

the platform and also at the fenced boundaries of the station area. Three sets of

pedestrian flashers will be located to warn pedestrians crossing the tracks. One two-way

set will be situated at the end of the platform and one set with a direction flasher at the

fenced boundary of the station area.” VTA also presented evidence that there were no

prior reported accidents at the Crossing in the more than four and one half years between

the time the station opened and the accident.

In opposition to the motion, Plaintiff argued there was no admissible evidence the

CPUC “approved the plan details of [the Crossing] as it was built” or that the CPUC

considered or approved the design features at issue: the absence of a locking gate and the

placement of the walkway. (In fact, Robinson had declared that all pedestrian warnings

were installed as approved by the CPUC.)

Plaintiff’s evidence in opposition to the motion included the declarations of

mechanical engineering expert David Rondinone and civil engineering expert John

Glennon. Rondinone opined that the “presence of an automatic pedestrian gate or one-

way gate interlock would have prevented [Plaintiff] from entering the [Crossing] while

the subject train was approaching the station.” Rondinone stated it would require “very

little additional work” to install such a gate since the “electronics, sensors and controls”

for such a gate were already present. He also stated that such an automatic gate was

installed at the pedestrian crossing at the northern end of the station. Among other

things, Glennon opined that the signs and other devices at the Crossing did not comply

with the requirements and standards of the Manual on Traffic Control devices published

by the Federal Highway Administration (MUTCD).

36

In its reply, VTA submitted: (1) a copy of its application to the CPUC, which

included engineering plans and drawings for the Crossing prepared by Korve Engineering

and approved by the “Vasona General Design Consultant, Parsons, Brinckerhoff, Quade

& Douglas, Inc. in association with MK Centennial and Korve Engineering” (Design

Consultant); and (2) nine pages of as-built plans for the Crossing. According to VTA’s

CPUC application, the crossings were reviewed by the “Field Diagnostic Team Process”

for the VLRP, which included representatives from the CPUC, VTA, the City of San

José, Caltrans, and the Union Pacific Railroad. “[C]omments from all parties were

incorporated into the design of [the Crossing].”

Plaintiff objected to this “newly presented evidence” on the ground it deprived

him of his due process. He argued he had not been given an opportunity to respond, the

evidence was not referenced in VTA’s moving papers, and VTA’s counsel lacked

sufficient personal knowledge to authenticate the additional documents. Because

Plaintiff does not renew these objections on appeal, we conclude the objections have been

forfeited and we shall consider the evidence VTA submitted with its reply.

C. Analysis

The first element to establish design immunity (a causal relationship between the

plan or design and the accident) requires proof that the alleged design defect, as opposed

to some other cause, was responsible for the accident. (Grenier v. City of Irwindale

(1997) 57 Cal.App.4th 931, 940, citing Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d

565, 570, 575 [causation negated by evidence showing poor maintenance and clogging of

drainage system, not merely system’s design].) On summary adjudication, the defendant

may rely on the allegations of the complaint to establish this element, as VTA did in this

case. (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550, citing Fuller v.

Department of Transportation (2001) 89 Cal.App.4th 1109, 1114.)

37

“The second element, discretionary approval prior to construction, ‘simply means

approval in advance of construction by the legislative body or officer exercising

discretionary authority.’ [Citation.] A detailed plan, drawn up by a competent

engineering firm, and approved by a city engineer in the exercise of his or her

discretionary authority, is persuasive evidence of the element of prior approval.

[Citation.]” (Grenier, supra, 57 Cal.App.4th at pp. 940-941, citing (Ramirez v. City of

Redondo Beach (1987) 192 Cal.App.3d 515, 526 (Ramirez).) Design immunity does not

immunize decisions that were not made. “Thus, the injury-producing feature must have

been a part of the plan approved by the governmental entity.” (Grenier, at p. 941.)

In Higgins v. State of California (1997) 54 Cal.App.4th 177 (Higgins), the court

explained that a “[c]ausal relationship is proved by evidence the injury-producing feature

was actually a part of the plan approved by the governmental entity: Design immunity is

intended to immunize only those design choices which have been made. A case in point

is Cameron[, supra,] 7 Cal.3d 318, 326 . . . , where superelevation around a curve

constituted the dangerous condition causing [the] plaintiffs to lose control of their car.

The plans showed many aspects of the roadway, but there was no evidence ‘the

superelevation which was actually constructed on the curve . . . was the result of or

conformed to a design approved by the public entity vested with discretionary authority.’

(Id. at p. 326.) The state thus failed to prove the causation element—that a discretionary

decision was actually made regarding the dangerous condition which caused the

plaintiffs’ accident. (Ibid.)” (Higgins, at pp. 185-186.)

“The third element of design immunity, substantial evidence of reasonableness of

design, requires only substantial evidence. ‘[A]s long as reasonable minds can differ

concerning whether a design should have been approved, then the governmental entity

must be granted immunity. The statute does not require that property be perfectly

designed, only that it be given a design which is reasonable under the circumstances.’

[Citation.] Generally, a civil engineer’s opinion regarding reasonableness is substantial

38

evidence sufficient to satisfy this element. [Citation.] Approval of the plan by competent

professionals can, in and of itself, constitute substantial evidence of reasonableness.

[Citation.]” (Grenier, supra, 57 Cal.App.4th at p. 941.)

The normal rules governing motions for summary judgment, which require that

the motion be denied if the party opposing the motion raises any triable issue of material

fact, do not apply to the third element of the design immunity defense. (Wyckoff v. State

of California (2001) 90 Cal.App.4th 45, 50-51 (Wyckoff).) “ ‘[T]he defendant is not

required to prove to the court that the design or plan was in fact a reasonable one.

Instead, the defendant is merely required to adduce any “substantial evidence” that a

reasonable public employee or legislative body could have approved the plan or design

used . . . .’ ” (Id. at p. 51.) “We are not concerned with whether the evidence of

reasonableness is undisputed; the statute provides immunity when there is substantial

evidence of reasonableness, even if contradicted.” (Grenier, supra, 57 Cal.App.4th at p.

940.) “That a plaintiff’s expert may disagree does not create a triable issue of fact.” (Id.

at p. 941.)

Plaintiff argues that VTA failed to present evidence that the Crossing “was

constructed as approved, that the issue of a locking mechanism was considered by the

approving agency or that [the] approving agency exercised its discretion in approving

signs and other devices that did not comply with the requirements and standards of the

MUTCD.” We shall analyze each alleged dangerous condition separately.

1. Placement of Crossing at Southern End of Platform

VTA presented evidence of multiple layers of design approval for the construction

of the Pedestrian Crossing. The plans were prepared by Korve Engineering and approved

by the Design Consultant engineers. VTA approved the design of the Crossing in May

2000, a year before it sought CPUC approval. As part of the CPUC approval process, the

CPUC’s Railroad Crossing Engineering Section staff inspected the site and recommended

39

approval of the Crossing design to the CPUC. And finally, the five-member CPUC board

approved VTA’s plans for the construction of the Crossing.

Regarding the alleged dangerous condition based on the location of the Crossing,

the plans prepared by Korve Engineering and approved by Design Consultant engineers

showed placement of the Pedestrian Crossing at the southern end of the platform. Thus,

the location of the Crossing was considered by and approved by VTA’s engineers, the

Design Consultant, and VTA’s governing board when it approved the plans. In its

application to the CPUC, VTA specifically sought approval of its plan to construct an at-

grade pedestrian crossing at that location. This satisfies the causation and discretionary

approval elements of the design immunity defense. Plaintiff does not present any

evidence that creates a triable issue on these two elements. The subsequent approval of

the Crossing at that location by the CPUC satisfies the reasonableness element. Although

Plaintiff’s evidence may create a triable issue as to the reasonableness of the location of

the crossing, that evidence does not preclude summary adjudication of the design

immunity defense. (Wyckoff, supra, 90 Cal.App.4th at pp. 50-51.) Thus, VTA was

entitled to design immunity with regard to the location of the Crossing.

Plaintiff contends that the placement of the Crossing at the southern end of the

platform encourages illegal jaywalking. The gate on the street side of the Crossing leads

to a sidewalk that runs along the station side of Southwest Expressway. Across the street

from that gate is a side street that leads to Plaintiff’s apartment complex. Although there

were no crosswalks or signals at the T-intersection between the side street and Southwest

Expressway at the time of Plaintiff’s accident, it would have been legal to cross from the

sidewalk outside the station to one of the corners on the opposite side of the street.

2. Absence of Automatic Locks on the Swing Gates

We next consider whether VTA is entitled to design immunity as to the alleged

dangerous condition created by the absence of automatic locks on the swing gates. The

40

issue on appeal appears to be the causation element: whether the alleged injury-

producing feature (absence of automatic locks on the swing gates) was actually part of

plans VTA approved for the Pedestrian Crossing. (Grenier, supra, 57 Cal.App.4th at pp.

940-941.) VTA did not present any direct evidence that the engineers who prepared the

plans for the Crossing or the Design Consultant or VTA considered the question of

locking gates at the Crossing.

The plaintiffs in Higgins argued that the absence of a median barrier on the

freeway where their automobile accident occurred was not a design choice made by the

approving body. The appellate court disagreed and concluded that the defendant had

presented substantial evidence that the design plans did consider the matter. The state’s

evidence included a declaration from a traffic engineer from Caltrans that median barriers

are not required on medians wider than 45 feet, the median at issue was more than 46 feet

wide, the location at issue was in conformance with design standards for medians, and the

plans approved by the state did not call for the placement of a median barrier. (Higgins,

supra, 54 Cal.App.4th at p. 186; see also Sutton v. Golden Gate Bridge, Highway, and

Transp. District (1998) 68 Cal.App.4th 1149, 1159-1160 [defendant presented evidence

that it commissioned a study by a traffic safety engineer who concluded that a median

barrier should not be installed on the Golden Gate Bridge and that it relied on that study

when it authorized a design that did not include a barrier].)

There was evidence here that the gates at the Crossing conformed to a design

approved by VTA. The plans VTA submitted to the CPUC, which were prepared by

professional engineers retained by VTA that had already been approved by the Design

Consultant and VTA, specifically called for swing gates with ADA tactile strips at the

Crossing, not locking gates. The CPUC Decision specifically approved of the use of

swing gates; it did not require a locking gate. And there was evidence that the as-built

condition of the gates conformed to the approved plans.

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In addition, Plaintiff’s expert David Rondinone noted that an “automatic

pedestrian gate” had been installed at the crossing at the northern end of the station

adjacent to Fruitdale Avenue. This supports the inference that the design engineer

considered but rejected a similar automatic gate at the Crossing at the southern end of the

station. According to Plaintiff’s evidence, section 8C.13 of the MUTCD provides in part:

“The swing gate alerts pedestrians to the LRT tracks that are to be crossed. Swing gates

are designed to open away from the tracks, requiring users to pull that gate open to cross,

but permitting a quick exit from the trackway, and to automatically close.” A swing gate,

as opposed to a locking gate, would permit a pedestrian who was on the Crossing to

return safely to the platform and prevent the person from being trapped in the Crossing as

a train approached.

We conclude that VTA submitted sufficient evidence to support all three elements

of design immunity with regard to the alleged absence of automatic locks on the swing

gates. Plaintiff’s expert evidence that the Crossing would be safer with a locking gate

goes to the reasonableness element. Even if it created a triable issue, it does not preclude

summary adjudication. (Grenier, supra, 57 Cal.App.4th at p. 940.)

3. Failure to Comply with MUTCD Standards Regarding Signs and

Warning Devices

Plaintiff also contends the Crossing is dangerous because the warning signs did

not comply with MUTCD standards. In his declaration, Plaintiff’s expert John Glennon

opined that the design of the Crossing and “the placement of signs and signals combined

synergistically . . . to cause the subject accident . . . .” Glennon identified the following

alleged MUTCD violations: (1) the flashing railroad signal at the end of the platform

was not in the uniform position immediately to the right of the Crossing; (2) the light rail

block signals conflicted with other signals; (3) the “No Train Horn” sign was too small

and was the wrong shape; and (4) a “No Trespassing” sign on the crossing signal post

42

was misplaced. Glennon also opined that (1) the platform should have been 10 to 20 feet

longer to accommodate better placement of the flashing signals; (2) a “049R sign” should

not have been in the pedestrian’s field of view; (3) there were no signs providing

advanced warning of the Crossing; and (4) the “Look Both Ways” and “No Train Horn”

signs were not available for view until pedestrians turned right to face the Crossing.

(Photographs in the record belie some of these criticisms: (1) there is a second flashing

railroad signal immediately to the right of the Crossing; and (2) the “Look Both Ways”

sign, the “No Train Horn” sign, and the Crossing are visible before one reaches the end of

the platform or the gates.)

The plans prepared by VTA’s engineers––which were approved by the Design

Consultant, VTA, and the CPUC––included detailed specifications regarding the style

and placement of warning signs, with references to MUTCD standards. They also

specified the length of the platform. The plans made specific design choices relating to

signage, warning devices, and the length of the platform. This was sufficient to satisfy

the first two elements of the defense. The CPUC Decision specifically approved of the

proposed design and made orders relating to signage and warning devices, thereby

satisfying the reasonableness element.

VTA thus met its burden of presenting evidence that satisfies all three elements of

the design immunity defense with regard to the alleged dangerous condition based on the

signage, warning devices, and length of platform. Plaintiff’s evidence, which criticized

the reasonableness of VTA’s design choices, did not preclude summary adjudication of

the design immunity defense.

For all these reasons, VTA is entitled to design immunity as to each of the

dangerous conditions Plaintiff has alleged.

43

DISPOSITION

The summary judgment is reversed. The trial court is directed to vacate its order

granting summary adjudication of both causes of action, and summary judgment to VTA.

The court is directed to enter a new order (1) denying summary adjudication of the

negligence cause of action; and (2) granting summary adjudication of VTA’s design

immunity defense, which is a complete defense to the dangerous condition of public

property cause of action. Each party shall bear its own costs on appeal.

44

_______________________________

Márquez, J.

WE CONCUR:

_____________________________________

Rushing, P. J.

______________________________________

Elia, J.

Gone v. Santa Clara Valley Transportation Authority

No. H039234