Bonanno v. Central Contra Costa Transit Authority

BAXTER, J., Dissenting.

majority opinion affirms a judgment in favor of plaintiff Darlene Bonanno, who was injured while using a marked crosswalk on a busy street to get to a bus stop maintained by defendant Central Contra Costa Transit Authority (CCCTA). CCCTA neither owned nor controlled the street or the crosswalk where the injury occurred. Nonetheless, the majority concludes that CCCTA was properly found liable *157 because its bus stop’s location constituted a dangerous condition of property that caused bus patrons to be at risk from the immediately adjacent street and crosswalk.

I dissent because the majority’s holding disregards firmly established law that a property owner is not liable for injuries caused when a person is hit by a vehicle while crossing an adjacent public street to go to or from the property when the owner has no right of control over the street or the vehicles thereon. (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481 [ 2 Cal.Rptr.2d 405 ] [private hotel owner not liable for the death of a hotel patron who was struck on an adjacent highway while using a marked pedestrian crosswalk that had been installed at the hotel’s request]; Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799 [ 87 Cal.Rptr. 50 ] [private store owner not liable for injuries suffered by a child who was struck by a car as he ran from the store’s parking lot carnival, which had featured a merry-go-round and free ice cream, to his home across the street]; Avey v. County of Santa Clara (1968) 257 Cal.App.2d 708 [ 65 Cal.Rptr. 181 ] [even where city and county defendants had notice that children waiting at a school bus stop would sometimes run over an adjacent state-owned highway, as well as defendants’ own parallel street next to the highway, to go to and from a store across from the bus stop for treats, defendants were not liable when a child engaging in such activity was hit and killed on the state-owned highway].)

The authorities the majority relies on for its extraordinary “location as a dangerous condition” theory of liability are inapposite. None of them involved property deemed to be defective or in a dangerous condition because of adjacency to a busy public street. (E.g., Warden v. City of Los Angeles (1975) 13 Cal.3d 297 [ 118 Cal.Rptr. 487 , 530 P.2d 175 ] [city’s sewer pipe constituted a dangerous condition because of its location just under water’s surface]; Jordan v. City of Long Beach (1971) 17 Cal.App.3d 878 [ 95 Cal.Rptr. 246 ] [city sidewalk could be a dangerous condition because of adjacent defective pavement on private property with protruding water pipe]; Holmes v. City of Oakland (1968) 260 Cal.App.2d 378 [ 67 Cal.Rptr. 197 ] [dangerous condition of city property could be found where exposed and unguarded railroad tracks located on a city street were in close proximity to a school]; Branzel v. City of Concord (1966) 247 Cal.App.2d 68 [ 55 Cal.Rptr. 167 ] [city’s model airplane field presented a dangerous condition because of its adjacency to power lines]; Dudum v. City of San Mateo (1959) 167 Cal.App.2d 593 [ 334 P.2d 968 ] [stop sign obscured by tree on adjacent private property could be a dangerous condition]; Marsh v. City of Sacramento (1954) 127 Cal.App.2d 721 [ 274 P.2d 434 ] [sidewalk properly found dangerous due to eight-foot drop-off at its edge caused by demolition of *158 adjacent building]; Bauman v. San Francisco (1940) 42 Cal.App.2d 144 [ 108 P.2d 989 ] [playground was dangerous due to its proximity to baseball field].) Those decisions had no occasion to consider the principle that the public entity liability statutes were “not enacted for the purpose of protecting those who come upon city streets, but only those who sustain injuries by reason of a ‘dangerous or defective’ condition.” (Perry v. City of Santa Monica (1955) 130 Cal.App.2d 370, 372 [ 279 P.2d 92 ] [decided in the context of the Public Liability Act of 1923].)

Moreover, the majority’s holding results in an anomaly that is obvious and troubling. Section 830.4 of the Government Code 1 provides that “[a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code . . . .” Therefore, even though crosswalks lacking traffic control signals or stop signs could not be deemed dangerous conditions for purposes of the California Tort Claims Act, the majority finds that the properties adjacent to those crosswalks may be considered dangerous or defective where persons are injured while using those crosswalks to get to and from the properties.

I disagree. If a plaintiff injured while using a crosswalk on a busy street is unable, as a matter of law, to pursue a direct theory of recovery against the public entity that maintained control over that particular street and crosswalk, it follows that the plaintiff should not be permitted to pursue and prevail on an indirect theory of recovery against the adjacent landowner whose property merely served as the plaintiff’s destination. In my view, owners and occupiers of property should not be made to ensure the safety of all persons who encounter nearby traffic-related hazards in reaching their property. 2

The majority purports to limit its unsupported expansion of the dangerous condition concept by suggesting that liability of a defendant would depend upon the feasibility of moving or removing its service or business elsewhere from the dangerous location. I find such reasoning illogical and prone to results that are inconsistent and unfair as between similarly situated plaintiffs and defendants.

Consider the following hypothetical. A public entity owns a building, with two spaces for rent, located directly adjacent to a crosswalk on a busy street. *159 One of the building’s renters is subject to a two-year lease; the other rents on a month-to-month basis. Like the situation here, there are no traffic lights or stop signs at the crosswalk, and the building’s location therefore presents a dangerous condition. Three persons—A, B, and C—simultaneously step into the crosswalk to get to the building: A seeks to visit the two-year lessee; B seeks to visit the other renter, and C has a meeting with the building owner on the premises. Although cars stop to allow A, B, and C to cross the street, an inattentive driver crashes into one of the stopped cars and causes injuries to A, B, and C. Under the majority’s rule, the public entity owner would escape liability because it could not feasibly have moved its building. The month-to-month renter likely would be subject to liability because terminating the tenancy and relocating appears to have been feasible. The two-year lessee might or might not be subject to liability, depending upon a jury’s assessment of feasibility. Thus, even though all three defendants appear equally at fault in terms of attracting visitors to the same “dangerous condition”—i.e., their location—they will not be held similarly accountable for their conduct; nor will the three plaintiffs be similarly situated when pursuing recovery for their injuries.

Finally, the majority suggests that the ramifications of its holding are further limited because public entity liability under section 835 is not coextensive with private liability for maintaining property in an unsafe condition. (See maj. opn., ante, at p. 152.) I am not so sure. Because the intent of the Califoria Tort Claims Act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances (see generally 35 pt. 2 Cal.Jur.3d (1988) Government Tort Liability, § 3, p. 16; Caldwell v. Montoya (1995) 10 Cal.4th 972, 985 [ 42 Cal.Rptr.2d 842 , 897 P.2d 1320 ]), the majority’s holding would appear to enlarge private liability for dangerous conditions as well.

Today’s decision significantly broadens the concept of what may properly constitute a dangerous condition of public property giving rise to liability under section 835. Like Justice Brown, I am deeply concerned that the majority’s rule will deplete the already scarce resources of public entities and their taxpayers, for, as was the situation here, a public entity remains on the hook for 100 percent of a plaintiff’s economic damages even though it is adjudged to be only 1 percent at fault. And though the majority purports to suggest otherwise, its rule may well directly subject owners and occupiers of private property, especially smaller businesses that rent but cannot afford to own, to uncertain and disproportional liability as well. For all of the foregoing reasons, I dissent.

A11 further statutory references are to the Government Code unless otherwise indicated.

Nonowner occupiers and possessors of property also may be subject to liability for defective or dangerous property conditions. (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108 [ 70 Cal.Rptr. 97 , 443 P.2d 561 , 32 A.L.R.3d 496 ].)