Bonanno v. Central Contra Costa Transit Authority

*160 BROWN, J., Dissenting.

Reading the majority opinion is painful, like watching a traffic accident in slow motion, because the majority’s misguided effort to compensate the victim of this accident will, quite foreseeably, victimize everyone else who is dependent on public transit.

The California Tort Claims Act “provides that a public entity is not liable for an injury ‘[ejxcept as otherwise provided by statute . . . .’ (Gov. Code, § 815.) Certain statutes do provide expressly for public entity liability in circumstances that are somewhat parallel to the potential liability of private individuals and entities but, as past cases have explained, ‘ “[T]he intent of the [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 ....’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 [ 15 Cal.Rptr.2d 679 , 843 P.2d 624 ].)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127-1128 [ 119 Cal.Rptr.2d 709 , 45 P.3d 1171 ] (Zelig).)

In California, then, governmental immunity is the rule, and liability is the exception. (Trinkle v. California State Lottery (1999) 71 Cal.App.4th 1198, 1202 [ 84 Cal.Rptr.2d 496 ]; Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1213 [ 34 Cal.Rptr.2d 319 ]; Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 63 [ 22 Cal.Rptr.2d 344 ].) The dangerous condition of public property exception to the general rule of governmental immunity is set forth in Government Code section 835. That section provides in pertinent part that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that ... [t] ... [1] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Ibid.)

Zelig, supra, 27 Cal.4th 1112 , demonstrates just how rigidly Government Code section 835 delineates the circumstances that confine a public entity’s liability for a dangerous condition of its property. In Zelig, the plaintiffs were the minor children of a woman who was shot to death by her former husband in a Los Angeles County courthouse where she was awaiting a hearing regarding spousal and child support. On several occasions prior to the killing, the decedent had informed a bailiff that she was afraid her former husband might attack or kill her in the courthouse, and she had also *161 previously provided the bailiff and a judge in the family court with copies of letters in which he threatened to kill her. (Zelig, at p. 1119.) The plaintiffs sued the county on the ground, among others, that it maintained the courthouse in a dangerous condition because it did not have metal detectors or other safety measures to prevent the introduction of firearms. (Id. at p. 1121.) We reversed the judgment of the Court Appeal and remandéd the matter to that court with directions to affirm the judgment entered by the trial court in favor of the defendants. (Id. at p. 1150.)

In Zelig, we emphasized that “liability is imposed only when there is some defect in the property itself and a causal connection is established between the defect and the injury. In many cases, courts have rejected the claim that an injury caused by the criminal activity of a third person was attributable to a dangerous condition of the property within the meaning of Government Code section 835, because the claims lacked an adequate showing that the property itself was in a defective condition.” (Zelig, supra, 27 Cal.4th at p. 1135 .) In Zelig, we concluded, “the risk of injury was not increased or intensified by the condition of the property, and the necessary causal connection between the condition of the property and [the] crime was not present. Indeed, the risk of injury to [the victim] at the hands of her ex-husband was at least as great outside the courthouse.” (Id. at p. 1137.) In any event, we noted, “plaintiffs are unable to point to any defective aspect of the purely physical condition of the property.” (Id. at p. 1139.)

In this case, plaintiffs dangerous condition of public property claim suffers from the same defects that defeated the claim in Zelig. That is, plaintiff is unable to point to any defective aspect of the “purely physical condition” of the bus stop. (Zelig, supra, 27 Cal.4th at p. 1139 .) Moreover, “the risk of injury was not increased or intensified by the condition” of the bus stop, and the “necessary causal connection between the condition” of the bus stop and the negligent driver’s failure to stop at the crosswalk was not shown. (Id. at p. 1137.)

Contra Costa County (County) painted the crosswalk for the safety of pedestrians crossing the street in order to reach the bus stop. On this tragic occasion, the crosswalk actually functioned as it was intended to, that is, cars coming from both directions stopped for plaintiff. (Maj. opn., ante, at p. 145.) 1 Plaintiff was injured, not because of any defective aspect of the purely physical condition of public property owned or controlled by the County (the *162 street) or Central Contra Costa Transit Authority (CCCTA) (the bus stop), but because another motorist rear-ended one of the stopped cars, causing it to lurch forward and hit plaintiff. The accident occurred because the driver “was having difficulty seeing out of his frost-covered windshield with the bright morning sun ahead.” (Ibid.) Just as the “risk of injury to the [victim in Zelig] at the hands of her ex-husband was at least as great outside the courthouse” (Zelig, supra, 27 Cal.4th at p. 1137 ), the tragic accident in this case might, so far as the evidence shows, just as well have happened at any other crosswalk along that stretch of road, or even at the stop-lighted intersection a block farther along. Indeed, the fact that the accident occurred at a crosswalk, rather than a stoplight, was itself quite accidental. As the majority observes, “[mjoming commute traffic on Pacheco was heavy, drivers were relatively inattentive, and the speed limit was often disregarded.” (Maj. opn., ante, at p. 144.) Much the same could be said of most suburban arterials. Moving the bus stop one block to the stop-lighted intersection would not have changed those conditions. Then why should the bus company be held responsible for the negligence of the driver? “Government cannot guarantee that roadways will not be used by defective cars or careless drivers.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 724 [ 159 Cal.Rptr. 835 , 602 P.2d 755 ] (conc. & dis. opn. of Clark, J.).)

In the course of holding that the location of a bus stop may constitute a dangerous condition of public property within the meaning of Government Code section 835, the majority asserts “[t]hat the location of a public improvement or, more broadly, its relationship to its surroundings, may create dangers to users is by no means a novel idea.” (Maj. opn., ante, at p. 149.) In support of this assertion, the majority cites a single decision of this court—Warden v. City of Los Angeles (1975) 13 Cal.3d 297 [ 118 Cal.Rptr. 487 , 530 P.2d 175 ] (Warden). (Maj. opn., ante, atp. 149.) Warden, however, is easily distinguished.

In Warden, a plaintiff who suffered personal injuries and property damage resulting from a collision of his sailboat with a submerged sewer pipe in Santa Monica Bay sued the City of Los Angeles for maintaining the pipe in a dangerous condition. The sewer pipe was one of four constructed and maintained in the bay by the city as outfalls for the city’s Hyperion Sewage Treatment Plant. Three of the pipes were buried under the seabed, but the pipe involved in the accident protruded into bay waters and was only 2.2 feet below the surface at low tide. Long after this pipe was constructed, but well before the accident, small boat traffic in the vicinity increased significantly *163 because a nearby marina began operations. Nevertheless, and despite the fact that three small boats had struck this pipe several years earlier, it was marked only by two unlighted buoys and it had no sounding device. The city did not deny the pipe posed a hazard or that it was aware of the danger created thereby. (Warden, supra, 13 Cal.3d at p. 300 .) However, the city contended it had met its responsibilities when “it merely ‘asked’ a representative [of the Coast Guard] as to ‘current Coast Guard thinking’ on the marking of the pipe and ‘the advisability’ of adding lights or whistles to the existing buoys.” (Id. at p. 301, fh. omitted.) This court rejected that argument, holding the city was at fault for having failed to make any affirmative request to the Coast Guard for authorization to place lights or audible signals on the buoys marking the pipe. (Ibid.)

Warden is simply inapposite. It might be apposite if, for example, plaintiff had injured herself by striking her head on a low CCCTA bus sign while walking on a city sidewalk. However, that is not what happened here.

Even assuming arguendo that the location of a bus stop may constitute a dangerous condition of public property within the meaning of Government Code section 835, the location of this bus stop may have increased the number of persons using the crosswalk, but it did not increase or intensify the risk that pedestrians using the crosswalk would be hit by negligent drivers. As the amici curiae brief filed by the San Mateo County Transit District and more than 200 other public entities observed, “Nothing about the bus stop made it dangerous to use the crosswalk. Rather, the crosswalk was equally safe or dangerous no matter where the bus stop was located. . . . Moving the bus stop, of course, would do nothing to remedy any danger in using the crosswalk .... In sum, the bus stop merely presented a reason to use the crosswalk; it did not create or increase any danger there.”

Moreover, as the San Mateo County Transit District amici curiae brief observed, “whether an injured person can sue for damages for injuries allegedly caused by a dangerous condition of public property does not and should not depend on his or her destination. Conversely, whether a public entity’s property was an injured person’s destination should not determine its liability. Recovery for injuries sustained by persons otherwise similarly situated—exposed to the identical danger—should not turn on where they are going next.”

The reason trial lawyers seek to expand the tort liability of public agencies is clear: Taxpayers will foot the bill, and taxpayers are assumed to have deep pockets. This case is a perfect example. Although CCCTA was found to be *164 only 1 percent at fault for this accident, under the doctrine of joint and several liability, judgment was entered against CCCTA for over $1.5 million in economic damages. (Maj. opn., ante, at p. 146.) However, the pockets of taxpayers are not bottomless. They never were, and they certainly are not now. The $1,606,130 awarded to plaintiff as damages for an accident for which CCCTA was not at fault, CCCTA, inevitably, must make up by cutting service or raising fares.

The majority’s indifference to this, to the real world consequences of its expansive doctrine of public tort liability, is all the more inexcusable now because transit agencies, like other state and local agencies, are in crisis. California, as anyone who has glanced at a newspaper recently knows, faces a budget deficit that may be as high as $35 billion. (See, e.g., Martinez, The Programmed Disintegration of the Golden Era in the Golden State, N.Y. Times (Feb. 9, 2003) p. 14.) Even using the Legislative Analyst’s more conservative estimate of $26.1 billion, that is $745 each for every man, woman and child in California. Put another way, it is more than a third of the $75 billion the state will spend on all general fund programs—public schools, community colleges, prisons, courts, parks, healthcare for kids and the elderly poor and all the rest. (Editorial, Counting to $26.1 Billion: The Stakes Behind an Unimaginable Number, Sacramento Bee (Jan. 19, 2003) p. E4.)

This crisis, of course, affects public transit agencies as well. Take the Bay Area transit agencies, for example: “BART has already had to slash its budget—and raise fares and introduce parking charges—to make up a $60 million budget deficit for the current fiscal year, which ends June 30. And while financial analysts see ridership and sales tax rebounding in the coming fiscal year, the recovery will be slow and BART will still face big budget deficits—estimated at $40 million next year and $734 million over the next 10 years.” (Cabanatuan, BART Dip in Ridership May Force Higher Fares, S.F. Chronicle (Feb. 14, 2003) p. A23.) “Faced with a $52 million budget shortfall, the San Francisco Municipal Transportation Agency Commission voted Wednesday to increase most [Muni] fares . . . .” (Gordon, Muni Fare to Increase—To $1.25: No Change for Seniors, Disabled, S.F. Chronicle (Feb. 27, 2003) p. A17.) “[A]t least 25 percent of Golden Gate Transit bus service will likely be slashed by September as the bridge district attempts to bail itself out of a $202 million deficit over the next five years.” (Prado, Local Officials Reconsidering Transit Tax, Marin Independent J. (Feb. 20, 2003) p. Al.)

One of the hardest hit agencies is the Santa Clara Valley Transportation Authority (VTA). “The recession, higher operating costs with an expanded *165 transit system and a drop in ridership have combined to put the VTA in a precarious position. Revenue from sales taxes that makes up nearly 80 percent of the agency’s revenue dropped 21 percent last year and continues to slide . . . .” (Richards, VTA to Slash Service 9%: Buses Will Take a Huge Hit, S.J. Mercury News (Feb. 7, 2003) p. 1B.) “Last year, the VTA slashed $164 million in spending, cut service, and eliminated more than 300 jobs, 11 percent of its workforce.” (Ibid.) On top of that, VTA’s budget is expected to be cut by 9 percent in April of this year, which will reduce service on 62 of its 72 bus routes, and “[t]he cuts are just a precursor of what’s ahead .... [The VTA General Manager said] that fares would almost certainly be increased in July and that perhaps even deeper cuts could take place in October or January.” (Ibid.)

Plaintiff blithely assures this court that moving a bus stop takes only a few hours and costs $4,000. However, plaintiff ignores the fact that there are, according to amicus curiae San Mateo County Transit District, 1,660 other CCCTA bus stops, and that CCCTA will likely feel compelled to conduct a traffic safety analysis of each one of them in order to avoid the liability created by the majority. And CCCTA, of course, will not be uniquely impacted. The beleaguered Santa Clara VTA, for example, has 4,645 bus stops, while the Alameda-Contra Costa Transit District has 8,000!

Moreover, the toll exacted by the majority opinion likely will not be confined to public transit agencies, for the rationale of the decision extends to the location of all public facilities.

It is one thing to impose liability where there is fault; quite another to impose costs by making public utilities guarantors of the safety of everyone who uses public facilities. The logic of this kind of expansive liability in the private sector—that costs can be passed on to consumers and that more efficient and safer producers will prevail in the market—simply cannot be translated to subsidized public services where there is only one provider.

The majority responds that “our proposed holding [does not] subject public entities to broad liability for the placement of entrances to public facilities or any other aspects of their design that might affect the safety of the facilities’ users.” (Maj. opn., ante, at p. 155.) The response misses the larger point. The concern is not so much that public entities will be held liable for the placement of the entrances to their public facilities, but that they will be held liable for the placement of the public facilities themselves. Today bus companies are being held liable for the location of their bus stops, tomorrow it will be their bus yards and headquarters buildings. The day after that it will be the location of the courthouse.

*166 Where, you stand can depend on where you sit, and, let us be frank, Supreme Court justices don’t sit on buses very often. Therefore, the majority would do well to consider the plight of those dependent on WestCAT, the transit agency serving northwestern Contra Costa County. WestCAT, “facing a budget gap of as much as $1.9 million next year, could be forced to raise fares by as much as 75 cents a ride and cut service hours by as much as 36 percent . . . .” (Lochner, WestCAT Riders Likely Face Fare Hikes, Service Cuts, West County Times (Mar. 14, 2003) p. A05.) Speaking at a public hearing, WestCAT riders said that higher fares would be difficult for them, but that service cuts would be even worse. (Ibid.) “ ‘Your public transportation, WestCAT, that’s my car,’ said Barbara Hill, a resident of the county-owned Bayo Vista low-income housing project in Rodeo, [^f] T ride it four times a day,’ said Hill, an epileptic with spinal problems who uses paratransit to get to the county hospital in Martinez, her doctor in San Pablo, water therapy at the Hilltop YMCA and grocery shopping in Pinole.” (Ibid.)

Regarding the possibility of service cuts, the majority contents itself with an observation made by the California Law Revision Commission: “ ‘Government cannot “go out of the business” of governing.’ [Citation.]” (Maj. opn., ante, at p. 156.)

Tell that to Ms. Hill.

Admittedly, plaintiff had to wait awhile before pedestrian-friendly motorists honored the crosswalk, creating a traffic break for her, but, sadly, that seems to be true of most crosswalks in this imperfect world. Indeed, pedestrians who cross on the green at stop-lighted intersec *162 tions without first making sure that approaching cars are going to actually stop are proceeding at considerable peril. That is not the way things should be, but it is the way things are.