Ducey v. Argo Sales Co.

CLARK, J., Concurring and Dissenting.

It is obvious to anyone driving our streets, roads and freeways that absent an impenetrable barrier against oncoming traffic, constant risk exists that another vehicle will cross the median line by reason of mechanical defect or careless driving. Designing and building freeways, roads and streets, governmental agencies can, should and do take precautions against risk of injury caused both by negligently built or maintained vehicles and by speeding, drunk and other negligent drivers: However, failure of government to take precautions against such vehicles or drivers does not furnish a basis for monetary recovery from the general fund.

The statutory definition of dangerous condition of property is clear, limiting dangerous conditions to those involving substantial risk when the property is used with due care in a reasonably foreseeable manner. (Gov. Code, § 830.) 1 While it is readily foreseeable that vehicles will go out of control, crossing the median line and colliding with oncoming traffic on all freeways, roads and streets, foreseeability is not the sole statutory test. Government cannot guarantee that roadways will not be used by defective cars or careless drivers. Liability is imposed only when substantial danger exists despite careful usage. Applying the statutory standard, evidence in the instant case is insufficient to establish a dangerous condition of property.

Facts

In February 1972 Dolores Glass lost control of her car and crossed the freeway median of State Route 17, colliding with plaintiffs’ vehicle. She was killed and plaintiffs were seriously injured.

In the area of the accident State Route 17 comprised two lanes each way when the accident occurred. Traffic was separated by a 46-foot median area containing oleander plants, and no physical median barrier existed. Absence of a barrier is the sole basis for plaintiffs’ claim the state is responsible for the accident. Barriers eliminate all or almost all *725 cross-median accidents, but because they reduce the area in which a driver entering the median area may regain control of his car, barriers increase the number of injury accidents. Cross-median accidents ordinarily involve greater injury than accidents resulting from striking of the barrier and bouncing back into traffic.

From 1964 to mid-1967, approximately 50 million vehicles travelled an 8-mile section of State Route 17 including the accident area; there were 423 accidents; and in eight of them a vehicle crossed the median and collided with oncoming traffic resulting in two fatalities. 2 Based on accident statistics covering a 16-mile stretch of the highway including the accident area and traffic volume projections, district state highway engineers in November 1967 recommended a cable-type barrier for a 16-mile area including the accident area. 3

In July 1968 the California Highway Commission allocated funds for construction of a median barrier for 16 miles including the accident site, and in November a contract was awarded to U. S. Steel to construct a cable barrier.

The state maintained a general policy of refusing to build barriers if reconstruction would cause removal of cable barriers within three years or of beam barriers within five years. A $27.3 million construction budget increase permitted widening an 8-mile stretch of the highway including the accident area, and a few days after the contract for the barrier was awarded, U. S. Steel was advised by the resident engineer that the 8-mile stretch was to be deleted from the contract. In February 1969 the district head of construction ordered the eight-mile stretch deleted because the new widening project called for a beam barrier. In April 1972 two months after the accident, the state embarked upon the widening project, adding one lane of traffic in each direction, reducing the median area to twenty-two feet and adding a beam barrier.

*726 “Section 815 of the Government Code declares; (a) a public entity is not liable for any injuries except as provided by statute; and (b) any statutorily established liability is subject to both statutory immunities and the defenses that would be available to the public entity were it a private person.... [¶] To impose liability for a dangerous condition of property under section 835, a plaintiff must establish ‘that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,...’” (Hayes v. State of California (1974) 11 Cal.3d 469, 471 [ 113 Cal.Rptr. 599 , 521 P.2d 855 ], fn. omitted.)

As defined by section 830, a dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Italics added.)

A number of cases have recognized that it is not the care or lack of care of the plaintiff or a third party in the particular case that is decisive but rather the due care requirement means that the condition must be dangerous when used with due care by the public generally. (E.g., Murrell v. State of California ex rel. Dept. Pub. Works (1975) 47 Cal.App.3d 264, 267 [ 120 Cal.Rptr. 812 ]; Sykes v. County of Marin (1974) 43 Cal.App.3d 158 , 161 et seq. [ 117 Cal.Rptr. 466 ]; Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748, 750-751 [ 208 P.2d 51 ].)

The section 830 condition that property be dangerous when used with due care means the state does not guarantee accidents will not occur upon its property. Further, the state does not guarantee its property will not be used by criminal or negligent persons, and when substantial danger of injury arises solely from criminal or negligent users, section 830 precludes liability. Thus the state is not required to build fail-safe highways. The best constructed highways are dangerous when used by speeders, drunk drivers and defective vehicles. The state is not required to respond in damages to negligent drivers or operators of defective vehicles under Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], or to innocent persons harmed by them when the highway—used with due care—is safe.

*727 “‘The “dangerous condition” of the property should be defined in terms of the manner in which it is foreseeable the property will be used by persons exercising due care in recognition that any property can be dangerous if used in a sufficiently abnormal manner. [Italics added.] Thus, a public entity should not be liable for injuries resulting from use of a highway—safe for use at 65—at 90 miles an hour even though it may be foreseeable that persons will drive that fast. The public entity should only be required to provide a highway that is safe for reasonably foreseeable careful use.’ (4 Cal. Law Revision Com. Rep. (1963) p. 822.)” (Fuller v. State of California (1975) 51 Cal.App.3d 926, 939-940 [ 125 Cal.Rptr. 586 ].)

In Hayes v. State of California, supra, 11 Cal.3d 469 the plaintiffs contended that the governmental entity aware that undesirable persons frequented its beach, committing dangerous crimes there, had a duty to warn of a dangerous condition. Rejecting the contention, we stated: “Liability for injury caused by a dangerous condition of property has been imposed when an unreasonable risk of harm is created by a combination of defect in the property and acts of third parties. (E.g., Baldwin v.. State of California (1972) 6 Cal.3d 424 [ 99 Cal.Rptr. 145 , 491 P.2d 1121 ]; Quelvog v. City of Long Beach (1970) 6 Cal.App.3d 584, 591-592 [ 86 Cal.Rptr. 127 ].) However, courts have consistently refused to characterize harmful third party conduct as a dangerous condition— absent some concurrent contributing defect in the property itself. (See, e.g., Jones v. Czapkay (1960) 182 Cal.App.2d 192, 203 [ 6 Cal.Rptr. 182 ] (presence of tuberculosis carrier on street does not constitute dangerous condition of property); Seybert v. County of Imperial (1958) 162 Cal.App.2d 209, 212, 214 [ 327 P.2d 560 ] (if lake itself not dangerous, no liability for waterskiing accident caused by third person’s negligence); Campbell v. City of Santa Monica (1942) 51 Cal.App.2d 626, 629 [ 125 P.2d 561 ] (no liability for failure to warn pedestrians of foreseeably negligent use of streets by motorists).) 2 In support of this characterization are the sections following section 830 (§§ 830.2 through 831.8) limiting liability for dangerous conditions. All are based on some physical feature of the property. 3 ” ( 11 Cal.3d at p. 472 .)

*728 As we drive the freeways, roads and streets of California, we must recognize there is a risk vehicles will cross the median line. Evidence in the instant case fails to show that the condition of the highway in any way increased such risk or caused Glass or anyone else to cross the median. There is no evidence any person using due care had ever crossed the median area and collided with oncoming traffic, and the evidence is insufficient to establish the highway created substantial danger when due care was used.

The fact the state decided to build a cable barrier and then abandoned its plan does not demonstrate the roadway was defective. Obviously the state, like any private individual, may take precautions for the careless as well as the careful person.

Nor does an engineer’s conclusion that the rate of cross-median injuries was “unusually high” establish that the road was dangerous when used by persons exercising due care. It is unlawful to drive across the median line of a divided highway (Veh. Code, § 21651), and a driver who crosses the median is presumptively negligent. (See Alarid v. Vanier (1958) 50 Cal.2d 617, 622 [ 327 P.2d 897 ]; Altomare v. Hunt (1950) 101 Cal.App.2d 10, 13 [ 224 P.2d 904 ].) Moreover, when a driver permits his vehicle to leave the road, the doctrine of res ipsa loquitur is applicable. (Faulk v. Soberanes (1961) 56 Cal.2d 466, 470 [ 14 Cal.Rptr. 545 , 363 P.2d 593 ].) Because all such accidents are presumptively the product of negligence, unusually high incidence of accidents suggests only unusually high incidence of negligent drivers; it does not suggest that any accident occurred without fault of one of the drivers.

Attempting to meet the statutory requirement of danger when due care is used, the majority rely on testimony of a highway engineer that “it is not uncommon to have the violating vehicle be an innocent party,” on expert witness testimony of hypothetical situations of cross-median accidents occurring without the negligence of anyone, and on jurors’ own driving experience assertedly permitting inferences that cross-median accident may occur without the negligence of any party.

Such general hypothetical testimony—indicating a possibility of non-negligence—could be presented in any case of a cross-median accident. The evidence has no more relation to highway conditions in the instant case than in any other case. Similarly, the jury experience would always *729 be available. 4 Because the factors relied upon by the majority are available in every cross-median accident case, the effect of today’s decision is that the juries are free to make the state an insurer in all cross-median accidents. In any event, mere possibility that a cross-median accident could occur without faulty driving or defective vehicle does not show that any such accident ever occurred on the highway in this case or any other specific highway.

No evidence exists to show the highway was dangerous when the public exercised due care using it. Therefore, the state was required to do nothing in prevention of plaintiffs’ injuries.

The judgment should be reversed.

Richardson J., and Manuel, J., concurred.

The petition of the respondent State of California for a rehearing was denied January 17, 1980. Clark, J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.

All statutory references are' to the Government Code.

Apparently there were 10 additional accidents not involving oncoming traffic where a vehicle crossed the median.

The state used a system of “warrants” to dfetermine whether barriers should be installed. The “warrant” system was a guideline and not followed rigorously. The warrant system was not directly applicable to the accident site in 1967. It applied only where the median area was less than 46 feet. There is a conflict in the evidence whether the warrant system applied under the 1968 revisions of the system. Although the published manual did not state the 46-foot limitation, the state engineers who prepared the revisions stated that a cover letter sent with the manual explained that it applied to median areas less than 46 feet. However, one of plaintiffs’ engineers testified that the revisions were applicable and called for a barrier. According to the state witnesses, it was not until 1971 that the median width factor was increased to 50 feet.

“Although the above cited cases were decided under the Public Liability Act of 1923, the superseding statutes are substantially similar to that act in relevant respects. (See former § 53051 and Legislative Com. comment to present § 835, West’s Ann. Gov. Code (1966 ed.) p. 185.)”

“Similarly, a private landowner’s liability is ordinarily based on a defect of the property or on his active conduct (Rowland v. Christian (1968) 69 Cal.2d 108 , 112 et seq. [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ]); and in the absence of a special relationship, he is under no duty to protect against the wrongful conduct of third parties. (See Rest.2d Torts, §§ 315, 344.)”

Because of the rarity of cross-median accidents, it is doubtful whether many jurors have had any experience with them.