Filed 9/4/14 Davis v. State of California CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


NIKKI DAVIS,

     Plaintiff and Appellant,                                          G049805

         v.                                                            (Super. Ct. No. CIVMS800662)

STATE OF CALIFORNIA,                                                   OPINION

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
Rodney A. Cortez, Judge. Affirmed.
                   Walter Clark Legal Group, Walter T. Clark; Law Office of Daniel J. Koes
and Daniel J. Koes, for Plaintiff and Appellant.
                   Ronald W. Beals, Chief Counsel for the State of California, Department of
Transportation, Carol Quan, Deputy Chief Counsel, Daniel Mansueto and Matthew S.
Lipinski, Deputy Attorneys for Defendant and Respondent.
              Nikki Davis appeals from the judgment in favor of the State of California
(the State) in this personal injury action. Davis was injured when her car was rear-ended
by another car as she was stopped on a four-lane state highway waiting to make a
left turn onto a dirt road. She contended the lack of a dedicated left turn lane at the
intersection constituted a dangerous condition of public property. (Gov. Code, § 835.)1
Following a bench trial, the trial court agreed the absence of a left turn lane at the
intersection was a dangerous condition, but it found the dangerous condition was not a
proximate cause of Davis’s injuries and the sole cause of Davis’s harm was the
negligence and inattention of the driver of the car that hit Davis’s car. On appeal, Davis
contends that as a matter of law, if the lack of a left turn lane was a dangerous condition,
then it was a proximate cause of the accident; the trial court applied incorrect legal
standards; and there is insufficient evidence to support its finding the driver who hit her
car was negligent. We reject her contentions and affirm the judgment.
                                 FACTS & PROCEDURE
Accident Location: State Route 62 Joshua Tree
              The accident occurred at the intersection of State Route 62 (SR-62) and
Juniper Road near the town of Joshua Tree. SR-62 is an east-west highway;
Juniper Road is a north-south dirt road that crosses SR-62. Davis was traveling east on
SR-62 and had stopped to make a left turn onto Juniper Road, when her car was struck
from behind by a car driven by Amber Delote.
              Although originally SR-62 was a two-lane highway, by 1970 it was
widened to a four-lane highway with two 12-foot wide lanes going each direction with a
two-foot paved outside shoulder on each side. Over the years, the average daily traffic
volume increased significantly, from 5,700 vehicles in 1970, to 18,000 vehicles in 2007.


1            All further statutory references are to the Government Code, unless
otherwise indicated.

                                              2
In 1996, when the federal speed limit was abolished, the posted speed limit on SR-62
went from 55 to 65 miles per hour (MPH), although just east of Juniper Road it drops to
55 MPH and then to 45 MPH as the road continues east into Joshua Tree. When the
accident occurred in 2007, the east and west bound lanes of SR-62 at the Juniper Road
intersection were separated by double solid yellow lines and there was no dedicated left
turn lane. Sunny Vista Road intersects with SR-62 about 670 feet (1/8 mile) west of
Juniper Road. In the vicinity of the accident, SR-62 is a completely straight road and
descends very slightly from the west going east towards Juniper Road and onward.
              In 1998, complaints were made to the California Department of
Transportation (Caltrans) and the California Highway Patrol (CHP) about the dangers
posed by the lack of a left turn lane on SR-62 in the vicinity of Juniper Road. A CHP
officer who was stationed in the area wrote a memorandum to the CHP explaining the
stretch of SR-62 encompassing the Juniper Road intersection was “in dire need of a
two-way left turn lane” (capitalization omitted), due to the increase in the speed limit on
the highway and the numerous rear-end collisions that had occurred in that area. Two
citizens who worked at businesses in the vicinity wrote to the CHP about accidents they
witnessed, or had been in, involving cars attempting to make left turns from SR-62 in the
area, and requested installation of a two-way left turn lane. A memorandum from the
commander of the area CHP station to Caltrans, advised “a two-way left turn lane is
badly needed” and suggested interim measures until a left turn lane could be constructed.
Caltrans’s 1998 response to the CHP acknowledged the increase in accidents due to
increased traffic volumes, and advised it was initiating an expedited project to widen
SR-62 to install a continuous two-way left turn lane on an approximately three-quarter
mile stretch of SR-62 from Sunny Vista Road (west of Juniper Road) to Hallee Road
(east of Juniper Road). Apparently, although the project was initiated it was not funded.
There was evidence Caltrans requested in 2005 that the project be installed and evidence
of the project going out for bid in 2006. By the time of Davis’s accident, Sunny Vista

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Road, and the next two intersections to the west, had left turn lanes but there were not
left turn lanes at Juniper Road or the next two intersections east of Juniper Road.
The Accident
               The accident occurred on October 31, 2007, at about 3 p.m. Davis was
driving east on SR-62, intending to making a left turn onto Juniper Road where she lived.
Davis testified it was a clear day and the eastbound traffic was light. Davis was in the
inside number one lane, which she considered the fast lane. She turned on her left blinker
at Sunny Vista Road and began slowing down right after Sunny Vista Road. Her blinkers
and brake lights were in good working order. As she approached the Juniper Road
intersection, Davis saw there were two vehicles behind her—one in each lane. The
vehicle in the number one lane, changed lanes and both vehicles passed her. Davis came
to a full stop in the number one lane to make her left turn once there was a clearing in the
oncoming westbound traffic. At trial, she testified that before being struck from behind
by Delote, she had been waiting to make her turn for “forty-five, fifty seconds[,] [m]aybe
a minute,” was checking her rearview mirror for approaching traffic, and did not see any
other cars pass her while she waited. She did not see Delote’s car approach her from
behind. Delote crashed into the back of Davis’s car, pushing Davis’s car into the
westbound lane where she was struck by another car. Davis suffered injuries and was
hospitalized for a week. By the time of trial in 2011, she continued to experience pain
from her injuries.
Expert Testimony
               Dale Dunlap was a traffic engineer called by Davis as an expert witness.
He opined the intersection was dangerous and the lane configuration (lack of left turn
lane), the increased speed limit and high traffic volume were the reasons for the number
of rear-end collisions in that area. He explained that at the posted 65 MPH speed limit, a
driver had limited time to decide what to do (i.e., slow down or change lanes) once he or
she saw a car stopped in the road. He testified that a driver going between 60 MPH and

                                             4
70 MPH would need a “decision sight distance”—what it would take to look around, and
make changes to speed and/or change lanes without sudden erratic maneuvers—of
1,100 feet. Nonetheless, he agreed Delote’s vehicle had completely unobstructed sight
distance of “well over” 2,000 feet as it approached Davis’s car. He also testified the
stopping distance for a car traveling at 65 MPH was 660 feet for wet pavement the
approximate distance from the Sunny Vista Road intersection to the Juniper Road
intersection, and less if the pavement was dry, which in this case it was. Dunlap agreed
the stopping sight distance and decision sight distance fully satisfied design criteria.
Dunlap assumed that if a reasonable driver saw a vehicle stopped waiting to make a left
turn, he or she would “slow down” and “do something instead of run into the vehicle”
such as moving over to the number two lane and driving around the stopped vehicle if
possible.
              Neil Clark, an accident reconstruction expert, was also called by Davis. He
agreed with Dunlap that an eastbound driver could see the Juniper Road intersection from
well west of Sunny Vista Road and there were no line of sight issues—the sight distance
was “virtually unlimited.” He opined the stopping distance for a car on dry pavement
going 65 MPH was 165 feet.
              Clark testified the skid marks showed Delote did not begin hard braking
until she was approximately 33 to 36 feet behind Davis’s car. Based on skid marks and
the damage to the vehicles, he opined Delote’s pre-impact braking speed was 49 MPH;
her impact speed was 42.7 MPH. The skid marks indicated Delote was driving in a
straight line and did not attempt any kind of steering before the wheels locked up.
              Clark reviewed Delote’s and Davis’s depositions as part of his review of
the case. In her deposition, Delote gave no indication she had any “line-of-sight” issues.
She became aware a vehicle was braking in front of her. Although Davis testified it was
her habit and practice to turn on her blinker, Delote could not remember if Davis’s turn
signals were on. Delote testified in her deposition that she saw brake lights ahead of her,

                                              5
and may have begun braking earlier, but became distracted, possibly due to sneezing.
Clark testified the “panic breaking, plus her indication that she, for some period of time,
lost visual contact with the vehicle ahead of her and didn’t have a continuous
understanding of what was happening with the car ahead of her would represent some
level of inattention.” Clark testified Delote could have made a very safe lane change with
very minimal rightward steering if she had been observing the entire time from as far
back as Sunny Vista Road, until up to two thirds of the way from Sunny Vista Road to
the Juniper Road intersection. There were no other road conditions, or other vehicles that
would have prevented Delote from seeing Davis or taking evasive action.
              Timothy Reust was the State’s accident reconstruction expert. He opined
that Delote’s inattention was the cause of the accident. In preparing his opinions, he
reviewed Davis’s, Delote’s, and Clark’s depositions. He agreed there were no line of
sight issues. The road was a completely straight road, slightly declining so an eastbound
driver was looking down slightly, which improved visibility. There was good contrast
between the road, Davis’s car, and area vegetation and buildings, all of which enhanced
the visibility of Davis’s car. Delote had indicated in her deposition she was familiar with
the area and drove the road three or four times a week. Davis testified she had her foot
on the brake, so her tail lights and the center mounted brake light in the rear window
would all have been illuminated, and would have been visible for at least 800 feet. Ruest
opined Delote began braking at 64.5 MPH and impact was at 54.8 MPH. Ruest testified
a car going 65 MPH would need 326.8 feet in which to perceive, react, brake, and stop.
Davis’s stopped car would have been plainly visible from at least 1,500 feet away. Reust
testified that Delote began perceiving Davis’s at about 193.3 feet from the car but did not
react or try to stop until she was extremely close.
              CHP Officer R.G. Luck was one of the officers who responded to the
accident. She determined Delote was at fault for the accident and cited her for violating
Vehicle Code section 22350—the basic speed law. Luck had been involved in over

                                              6
800 accident investigations. When asked if she had an opinion as to whether roadway
conditions contributed to or caused the accident, she replied, “I believe . . . Delote caused
the collision. And the roadway, although at the time it didn’t have a turn lane, ultimately,
she was responsible to pay attention while she was driving and be able to react to vehicles
stopping ahead of her making a left turn.”
Statement of Decision
              Following the bench trial, the court issued a tentative statement of decision
that eventually became its final statement of decision (with only one alteration we
describe below). The court identified the issues before it as whether the intersection
constituted a dangerous condition of public property within the meaning of
sections 830 and 835 for vehicles making left turns from SR-62 onto Juniper Road
without a separate left turn lane; and if so, was the State immune from liability under
section 835.4 [reasonableness of act or omission], or section 830.6 [design immunity].
The court set forth the basic background facts, and observed that although Delote was not
called as a witness at trial, portions of her deposition testimony were presented through
expert opinion testimony.
              In addressing the first issue, the court set forth the requisite elements Davis
had to prove to establish public entity liability for a dangerous condition of public
property: (1) The intersection was in a dangerous condition on the date of Davis’s
accident; (2) Davis’s injury was caused by the dangerous condition; (3) the dangerous
condition created a reasonably foreseeable risk of the kind of injury which was incurred;
and (4) the State had actual or constructive notice of the dangerous condition.
              As to the first element, the court found the SR-62/Juniper Road intersection
constituted a dangerous condition based on the following factual findings. The posted
speed limit going through the SR-62/Juniper Road intersection was 65 MPH. There was
no center left turn lane, or other traffic controls at the intersection, but there were left turn
lanes at the two immediate intersections to the west. Sunny Vista Road was 670 feet

                                               7
west of Juniper Road. The “[d]ecision sight distance, or the amount of roadway needed
to see an object and bring a vehicle safely to a stop, while traveling at 65 miles an hour, is
1,100 feet.” There was evidence going back nine years of complaints made to Caltrans of
an increase in rear-end collisions due to the increased speed, increased traffic volume,
and the lack of left turn lanes. Davis’s traffic engineer opined, “drivers trying to turn left
onto Juniper [Road] faced unnecessary hazards whenever they stopped because of the
high speed traffic approaching them from behind without any traffic signal, without any
safe haven like a left turn lane, and as a matter of driver safety, the intersection should
have had a two way left turn lane. All this evidence compels this court to conclude that
depending upon factors, including traffic conditions throughout the day, the intersection
created a substantial risk of injury when the road was used with due care and in a manner
in which it is reasonably foreseeable that it will be used.” (Italics added.)
              The court went on to address element number 2—causation. It concluded
Davis “failed to establish that the injury was proximately caused by the dangerous
condition.” “[T]he alleged dangerous condition was NOT a substantial factor in causing
[Davis’s] injuries. Based on the evidence presented at trial, including the light traffic
conditions at the time of the injury . . . the negligence and inattention of . . . Delote was
the sole cause of [Davis’s] harm.” The court made factual findings based on Davis’s
testimony it was daylight, clear and dry, the eastbound traffic was light, and there were
no issues of visibility for eastbound traffic. Davis had her turn signal on, brakes pressed,
and brake lights illuminated. While she waited for about 30 seconds, only two other
vehicles approached her car and both were able to see Davis, and easily go around her—
underscoring the traffic was light. “What was of importance to this court in reaching its
decision as to whether the . . . dangerous condition caused [Davis’s] injury, was the
testimony that eastbound and westbound traffic was light at the time of the collision.”
              The court explained Reust and Clark both testified from their review of
Delote’s deposition that she was familiar with the accident location and drove the road

                                               8
several times a week and there was no evidence there were any other cars around her that
“would have obscured her vision of traffic ahead of her or prevented her from moving
into the number two lane to easily steer around [Davis].” Reust testified based on the
geometrics of the roadway, and Davis’s flashing brake lights and turn signals, there were
“sufficient indicators to any reasonable due care driver that they were approaching
slowing or stopped traffic and would need to lower their own speed or steer around the
vehicle ahead of them.” The court found based on the testimony of Clark and Reust, at a
speed of 64.5 MPH, Delote could have safely brought her car to a stop within 326 feet
(“[A] normal driver, traveling 64.5 [MPH] on this type of pavement, should have been
able to see and perceive an object in the roadway ahead of them and safely brake their
vehicle to a stop within their lane of travel within 326 feet.”) The evidence showed she
did not have any perception until she was 193 feet away from Davis’s vehicle. The skid
marks were evidence of panic braking and inattention.
              The trial court concluded, “Based on . . . Delote’s familiarity with the
roadway, the weather and environmental conditions at the time of the accident, the light
traffic conditions, [Davis’s] brake light and turn signal indicators and the geometrics of
the roadway, specifically the extensive and unobstructed available sight distance, there
was no reason [Delote] should not have been able to see [Davis] stopped at the
intersection and safely avoid this accident. The court finds . . . Delote was not acting
with due care. The court finds [her] negligence was the sole cause of the . . . accident.
[¶] In conclusion, [Davis] failed to meet her burden of establishing the dangerous
condition of public property at the [SR-62/Juniper Road intersection] caused her
injuries.” The court did not address the remaining elements or the State’s immunity
defenses.
              Davis filed objections to the tentative statement of decision. In sum, she
objected there was no evidence to support the court’s finding the traffic conditions were
light or the light traffic conditions alleviated the risk. She objected there was no basis for

                                              9
the court’s conclusion Delote was inattentive because she did not testify at trial and the
expert’s testimony concerning Delote’s deposition testimony to that effect could not be
relied upon by the court because of its “hearsay nature.” Additionally, Davis objected
there was no requirement Davis prove the dangerous condition somehow caused Delote
to be negligent, and in any event, there was “no evidence only speculation, that Delote”
was negligent. And she argued the court’s assumption an attentive driver could have
avoided hitting Davis was inconsistent with its finding the intersection constituted a
dangerous condition.
              The trial court rejected Davis’s objections and issued a final statement of
decision identical to its tentative statement of decision with one exception. The final
sentence of its analysis of element 1—dangerous condition—read, “All this evidence
compels this court to conclude that the intersection created a substantial risk of injury
when the road was used with due care and in a manner in which it is reasonable
foreseeable that it will be used[,]” and omitted that the risk “depend[ed] upon factors,
including traffic conditions throughout the day . . . .”
              Judgment was entered for the State. Davis filed a timely notice of appeal.
                                       DISCUSSION
              The gist of Davis’s argument on appeal is the trial court in this bench trial
erred as a matter of law by finding the lack of a left turn lane on SR-62 at Juniper Road
constituted a dangerous condition because of the increased risk of rear-end collisions, yet
it was not a proximate cause of this particular accident. We reject Davis’s contentions.
The trier of fact could reasonably find that because the circumstances that made the lack
of a left turn lane a dangerous condition (i.e., the impact increased speed and traffic
volume on the highway had on a driver’s decision sight distance or stopping distance)
were not present in this case, the sole cause of this accident was Delote’s inattention.
And because that conclusion is supported by substantial evidence, we must affirm the
judgment.

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 1. General Principles of Liability for Dangerous Condition of Public Property
              We begin with general legal principles. A public entity is not liable for an
injury arising out of the alleged act or omission of the entity except as provided by
statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a
public entity based on the condition of public property. (Brown v. Poway Unified School
Dist. (1993) 4 Cal.4th 820, 829.)
              Under section 835, a public entity may be liable if it creates an
injury-producing dangerous condition on its property or if it fails to remedy a dangerous
condition despite having notice and sufficient time to protect against it. (Grenier v.
City of Irwindale (1997) 57 Cal.App.4th 931, 939.) Section 830 defines a “‘[d]angerous
condition’” as “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.”
To constitute a dangerous condition, an injured plaintiff need not prove the public
“‘property was actually being used with due care at the time of the injury, either by
himself or by a third party . . . .’” (Alexander v. State of California ex rel. Dept. of
Transportation (1984) 159 Cal.App.3d 890, 899 (Alexander); see also Bonanno v.
Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 153, fn. 5 (Bonanno);
Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718-719 (Ducey).)
              With regard to third party conduct, a public entity may be liable for a
dangerous condition of public property even where the immediate cause of a plaintiff’s
injury is a third party’s negligent or illegal act if some physical characteristic of the
property exposes its users to increased or intensified risk of injury from third party
negligence or criminality. (Bonanno, supra, 30 Cal.4th at p. 152.)
              To recover in an action against a public entity under section 835, a plaintiff
must prove: “(1) a dangerous condition existed on the public property at the time of the
injury; (2) the condition proximately caused the injury; (3) the condition created a

                                              11
reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had
actual or constructive notice of the dangerous condition of the property in sufficient time
to have taken measures to protect against it.” (Brenner v. City of El Cajon (2003)
113 Cal.App.4th 434, 439; § 835.)
              It is well established “the existence of a dangerous condition is ordinarily a
question of fact.” (Bonanno, supra, 30 Cal.4th at p. 148.) It is similarly well established
that whether a dangerous condition is a proximate cause of a plaintiff’s injury is generally
a question of fact. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508,
520; Lawson v. Safeway Inc. (2010) 191 Cal.App.4th 400, 418.) “To establish causation,
a plaintiff must prove that the defendant’s conduct was a ‘substantial factor’ in bringing
about his or her harm. [Citations.] Stated differently, evidence of causation ‘must rise to
the level of a reasonable probability based upon competent testimony. [Citations.] “A
possible cause only becomes ‘probable’ when, in the absence of other reasonable causal
explanations, it becomes more likely than not that the injury was a result of its action.”
[Citation.] [A party’s] conduct is not the cause in fact of harm “‘where the evidence
indicates that there is less than a probability, i.e., a 50-50 possibility or a mere chance,’”
that the harm would have ensued.’ [Citation.]” (Bowman v. Wyatt (2010)
186 Cal.App.4th 286, 312.)
              In this case, the trial court found the absence of a left turn lane constituted a
dangerous condition, and the State does not challenge that conclusion. It also found the
dangerous condition was not a proximate cause of this accident—this accident was
caused solely by Delote’s negligence.
              “A judgment or order of a lower court is presumed to be correct on appeal,
and all intendments and presumptions are indulged in favor of its correctness.
[Citations.]” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).)
Specifically, “[u]nder the doctrine of implied findings, the reviewing court must infer,
following a bench trial, that the trial court impliedly made every factual finding necessary

                                              12
to support its decision.” (Fladeboe v. American Isuzu Motors, Inc. (2007)
150 Cal.App.4th 42, 48 (Fladeboe).)
              To avoid such implied findings, a party must follow the two-step process
provided by Code of Civil Procedure sections 632 and 634. (Arceneaux, supra, 51 Cal.3d
at pp. 1133-1134.) “[F]irst, a party must request a statement of decision as to specific
issues to obtain an explanation of the trial court’s tentative decision [citation]; second, if
the court issues such a statement, a party claiming deficiencies therein must bring such
defects to the trial court’s attention to avoid implied findings on appeal favorable to the
judgment [citation].” (Id. at p. 1134.) If a party fails to bring omissions or ambiguities in
the statement of decision to the trial court’s attention, “that party waives the right to claim
on appeal that the statement was deficient in these regards,” and the reviewing court will
infer the trial court made implied factual findings to support the judgment, even on issues
not addressed in the statement of decision. (Ibid.; see Fladeboe, supra, 150 Cal.App.4th
at pp. 48, 59-60.)
              We review both express and implied findings of fact in a statement of
decision for substantial evidence. (SFPP v. Burlington Northern & Santa Fe Ry. Co.
(2004) 121 Cal.App.4th 452, 462 (SFPP).) In applying the substantial evidence standard,
we “view the evidence in the light most favorable to the prevailing party, giving it the
benefit of every reasonable inference and resolving all conflicts in its favor. . . . ” (Jessup
Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) We independently review questions of
law. (SFPP, supra, 121 Cal.App.4th at p. 461.) “[A] party does not waive objections to
legal errors appearing on the face of a statement of decision by failing to respond to it.”
(Fladeboe, supra, 150 Cal.App.4th at p. 59.)
2. Substantial Evidence Supports Statement of Decision’s Express and Implied Findings
              We conclude substantial evidence supports the trier of fact’s conclusion the
lack of a left turn lane on SR-62 at Juniper Road was not the proximate cause of Davis’s
injury. The question whether a dangerous condition was a substantial factor in causing a

                                              13
specific accident must be considered in light of the particular circumstances that
constitute the dangerous condition. In this case, in its statement of decision, the
trial court gave a factual explanation of the circumstances that made the SR-62/Juniper
Road intersection dangerous specifically referring to the increased speed limit of 65
MPH, the increased volume of traffic of the highway, and the required “[d]ecision sight
distance, or the amount of roadway needed to see an object and bring a vehicle safely to a
stop, while traveling at 65 [MPH]” of 1,100 feet. The court impliedly found the
intersection was dangerous because a driver needed an amount of stopping distance to
respond to a stopped car that could be unavailable because fast speed and heavy traffic
volume on the highway could impede visibility and the ability to safely stop. But the trial
court concluded those circumstances were not present in this case. There were no
visibility issues. Delote had unlimited distance in which she could or should have seen
Davis stopped and signaling her turn. Nor was there any traffic that could have prevented
Delote from timely seeing Davis’s car, or from steering around her car. Thus, the
circumstances that made the condition dangerous were not present to have caused this
particular accident.
              We recognize that in its tentative statement of decision, the trial court
qualified its dangerous condition finding when it stated “depending upon factors,
including traffic conditions throughout the day, the intersection created a substantial risk
of injury when the road was used with due care . . . .” (Italics added.) Although none of
Davis’s objections to the tentative statement of decision implicated that limitation, the
italicized language was omitted from the court’s final statement of decision. But
“dangerous condition” and causation can intertwine (Constance B. v. State of California
(1986) 178 Cal.App.3d 200, 208), and we must read the statement of decision as a whole.
The alteration does not suggest the trial court concluded traffic conditions were
irrelevant. When the entire statement of decision is considered, that single modification
connotes only that the trial court decided the particular road and traffic conditions that

                                             14
could affect a specific driver’s ability to see and safely stop for a left turning car should
be factored into the causation analysis rather than the dangerous condition analysis. That
modification is consistent with the rule that “due care” as referred to in section 830’s
definition of a dangerous condition (i.e., to find a dangerous condition there must be
“substantial . . . 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”) refers to
due care used by the public in general, not by the parties involved in the specific accident.
(Alexander, supra, 159 Cal.App.3d at p. 899 [to constitute a dangerous condition, an
injured plaintiff need not prove the public “‘property was actually being used with due
care at the time of the injury, either by himself or by a third party’”].) In other words, the
court was merely recognizing that varying conditions of the road at any given time, and
how they impacted a third party’s driving, were relevant to causation. (See also Swaner
v. City of Santa Monica (1984) 150 Cal.App.3d 789, 804 [third party’s negligence affects
proximate causation, not the dangerous condition].)
              The trial court found that because high speed and high traffic volume on
SR-62 impacted a driver’s ability to stop (presumably because they increased the required
stopping distance), the lack of a left turn lane created a foreseeable risk of injury to a
driver stopped in the road to make a left turn. However, it found that in this particular
case, the dangerous condition was not a substantial factor in causing Davis’s injuries. Its
conclusion is supported by substantial evidence. The court referred to evidence
concerning the road conditions (it was daylight, clear, and dry), the absence of eastbound
traffic, the geometrics of the road itself (straight and slightly declining thereby increasing
visibility), that Davis’s turn signal was on and her brake lights illuminated, and that the
only two other eastbound vehicles that approached Davis easily maneuvered around her.
The court referred to evidence about the decision sight distance while traveling at
65 MPH of 1,100 feet, and found Delote had “extensive and unobstructed available sight
distance,” which was consistent with the expert witnesses who testified Delote’s vision

                                              15
distance was anywhere from 1,500 feet, to over 2,000 feet, to “virtually unlimited.” The
court referred to the distance Delote needed to perceive Davis’s presence and to safely
stop her car—326 feet—that Delote did not have any perception until she was 193 feet
away from Davis’s vehicle, and the skid marks evidenced panic braking and inattention.
              Davis contends there is no evidence in the record to support the trial court’s
factual finding Delote was negligent, inattentive, or the cause of the accident. Nonsense.
The undisputed evidence was that Delote had completely unobstructed visibility of the
SR-62/Juniper Road intersection for at least 1,500 feet, there was no traffic to impede her
ability to steer clear of Davis’s car, Davis’s brake lights and turn signals were on, Delote
did not commence to react to Davis’s car until she was 193 feet away, and Delote did not
commence hard braking until she was about 36 feet away from Davis’s car. The only
reasonable inference was that Delote was not paying attention to the road.
              Davis’s complaint is largely about the court’s factual finding Delote was
familiar with the road because she drove it several times a week. Delote did not testify at
trial, and that information came from testimony from expert witnesses (including her
own) who testified as to Delote’s deposition testimony. Davis contends Delote’s
deposition testimony was inadmissible hearsay. “Although experts may properly rely on
hearsay in forming their opinions, they may not relate the out-of-court statements of
another as independent proof of the fact. [Citations.]” (Korsak v. Atlas Hotels, Inc.
(1992) 2 Cal.App.4th 1516, 1524-1525.)
              Davis has waived any complaints about the experts’ testimony concerning
Delote’s deposition testimony because she failed to raise any objections during trial.
(Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611 [“It is
hornbook law that a timely and specific objection is required to prevent the consideration
of certain evidence; the failure to object at all waives any claim of error”].) Davis claims
her “continuing [hearsay] objection” to the testimony of CHP Officer Randy O’Brien
about statements Delote made at the accident scene sufficed. We disagree. That

                                             16
objection was clearly directed at the officer’s testimony about Delote’s admissions at the
scene of the accident, as demonstrated by the fact that at the conclusion of trial, the court
specifically referred to that objection and specifically ruled the officer’s statements about
Delote’s statements made at the scene and during the accident investigation to be
inadmissible. Davis’s failure to raise any objections to the experts’ testimony waives her
complaint on appeal.
              Moreover, even were we to disregard the statements concerning Delote’s
familiarity with the road, we would find no prejudice in view of the strength of the other
evidence concerning her negligence all of which came from Davis herself (e.g., the light
traffic, clear dry weather conditions, her turn signal was on, her brakes depressed, and all
her lights were in good working order), or from the various expert witnesses based on
their own observations about the geometrics of the road way (straight road, slight incline
from Sunny Vista so driver looking down, color contrast between road, cars, buildings
and vegetation, and lack of any visual obstructions), the requisite distance for bringing a
vehicle to a stop, and what the skid marks showed about Delote’s lack of braking and
lack of steering. In sum, we conclude there is substantial evidence supporting the trial
court’s findings.
3. No Errors of Law
              To avoid application of the substantial evidence test that governs appellate
review of the trier of fact’s express and implied findings, Davis has couched her
argument in terms of complaints the trial court necessarily applied incorrect legal
standards to reach its factual conclusions concerning causation. She raises several such
errors of law. None of her contentions have merit.
              First, Davis contends that as a matter of law the lack of a left turn lane was
a proximate cause of her injury because the court found it to be a dangerous condition
that increased the risk of the very type of accident that occurred. In making this
argument, Davis relies on a series of cases concerning the effect of third party negligence

                                             17
that are inapt either because they did not concern causation (but rather whether there was
a dangerous condition), or are distinguishable because none arose in a context in which a
reviewing court held there was causation as a matter of law.
              For example, in Ducey, supra, 25 Cal.3d 707, a jury returned a verdict
against the State in favor of plaintiffs who were injured when another driver crossed the
freeway median strip, which lacked any sort of barrier, and collided head on with their
car. The Supreme Court affirmed the jury’s verdict rejecting the State’s argument the
issue of dangerous condition should never have been submitted to the jury. First, the
State asserted it could be liable only if the physical aberration or defect actually caused
the accident, and not for the mere absence of a protective barrier. (Id. at p. 715.) The
Supreme Court rejected this argument concluding that “when, as in this case, the [S]tate
has actual or constructive notice of a ‘dangerous condition’ on a public highway, the
[S]tate bears an affirmative obligation to take reasonable steps to protect the public
against the danger. If the [S]tate fails to take such reasonable protective measures and its
failure proximately causes plaintiff’s injuries, the [S]tate may be held liable for the
resulting damages.” (Ibid., italics added.) The State also argued a cross-median accident
usually occurs as the result of the victim or a third party’s negligence and therefore the
jury could not find the highway dangerous when being used with due care. The Supreme
Court rejected this contention finding there was substantial evidence from which a jury
could find “the lack of a median barrier created a substantial risk of injury even in the
absence of negligent conduct[,]” such as when the accident resulted “from mechanical
failure, sudden illness, or animals in the road.” (Id. at p. 719.)
              In Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, a wrongful death
action was filed alleging a dangerous condition of public property after a woman was
shot and killed by her ex-husband at a courthouse. The Supreme Court affirmed the
judgment dismissing the complaint after the county’s demurrer was sustained, finding as



                                              18
a matter of law there was no dangerous condition and there was no causal connection
between the alleged dangerous condition and the shooting. (Id. at pp. 1140-1141.)
              Neither Ducey nor Zelig compel finding causation as a matter of law. The
other cases upon which Davis relies are similarly unavailing. In Bauman v.
San Francisco (1940) 42 Cal.App.2d 144, 153, a jury verdict for plaintiff was affirmed
because its factual findings of dangerous condition and proximate cause were supported
by substantial evidence. Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1352,
affirmed the trial court’s grant of summary judgment agreeing that as a matter of law the
city crosswalk was not a dangerous condition. In Swaner, supra, 150 Cal.App.3d at page
803, the judgment that followed an order sustaining the city’s demurrer was reversed
because plaintiffs adequately alleged a dangerous condition and whether the dangerous
condition proximately caused their injuries was a question of fact. In Schonfeldt v. State
of California (1998) 61 Cal.App.4th 1462, 1486, a judgment of dismissal after granting
motion for judgment on the pleadings was affirmed because as a matter of law there was
no dangerous condition. And in Mathews v. State of California ex rel. Dept. of
Transportation (1978) 82 Cal.App.3d 116, 121, a judgment following an order sustaining
the State’s demurrer was reversed because the third party’s negligence did not negate the
dangerous condition as a matter of law.
              None of these cases support Davis’s contention that a finding of a
dangerous condition compels a finding of proximate causation as a matter of law.2

2               We observe that Baldwin v. State of California (1972) 6 Cal.3d 424, 427-
428 (Baldwin), involved the same basic fact pattern presented in this case. Plaintiff was
rear-ended while he was stopped on a state highway to make a left hand turn. He
contended the lack of a left turn lane was a dangerous condition in view of the heavy
traffic and high speeds on the highway. The trial court granted summary judgment
applying the design immunity of section 830.6. The Supreme Court reversed holding
there were triable issues of fact as to whether the design immunity applied. (Baldwin,
supra, 6 Cal.3d at p. 439.) In a footnote, the Court observed the State could not avoid
liability just because the immediate cause of the accident was the other driver’s
negligence, if the alleged dangerous condition of the highway (the lack of left turn lane)

                                            19
And notably Bonanno, supra, 30 Cal.4th 139, underscores that a finding of dangerous
condition does not compel a finding of causation. In Bonanno, plaintiff was in a marked
crosswalk on a busy road at an uncontrolled intersection walking to the bus stop. A
driver had stopped for plaintiff, but an inattentive second driver rear-ended the stopped
car pushing it into the crosswalk and hitting plaintiff. (Id. at p. 145.) Plaintiff sued the
transit agency for a dangerous condition of public property. (Id. at p. 146.) The Supreme
Court affirmed a jury verdict for plaintiff addressing only the issue of whether the bus
stop could be found to be a dangerous condition because users had to cross at a dangerous
crosswalk. (Id. at p. 147.) The Supreme Court concluded a jury could find bus stop
dangerous because a condition on the adjacent property (i.e., the crosswalk at an
uncontrolled intersection) exposed users of the bus stop to a substantial risk of injury.
That the injury occurred on adjacent county property and that a third party was the
immediate cause of the injury did not preclude a finding of dangerous condition. (Id. at
pp. 152-153.) In so holding, the Supreme Court emphasized it was only addressing the
dangerous condition element of liability, and a plaintiff who established a dangerous
condition still had to prove the other elements for liability under section 835, including
that the dangerous condition proximately caused the injury. (Id. at pp. 154-155.)
              Davis next contends the trial court made a legal error by failing to properly
apply the law concerning intervening or superseding causes. This claimed legal error was
not the subject of any objection to the statement of decision and is not an error appearing

was also a cause of the injury: “‘If an injury is produced by the concurrent effect of two
separate wrongful acts, each is a proximate cause of the injury, and neither can operate as
an efficient intervening cause with regard to the other. [Citations.] The fact that neither
party could reasonably anticipate the occurrence of the other concurrent cause will not
shield him from liability so long as his own negligence was one of the causes of the
injury. [Citations.]’ [Citation.] This principle has been applied even when one of the
negligent parties is a governmental entity. [Citations.]” (Id. at p. 428, fn. 3.) But that
observation presupposes a finding the dangerous condition was a cause of the injury, and
nothing in Baldwin, purports to compel finding causation as a matter of law follows from
the finding of a dangerous condition.

                                              20
on the fact of the statement of decision. Davis relies upon the rule that under traditional
causation principles a defendant whose conduct is a substantial factor in bringing about a
plaintiff’s injury cannot escape liability based on the conduct of a third party unless the
third party’s conduct operates as a superseding cause that breaks the chain of legal
causation between the defendant’s conduct and the plaintiff’s injury. (Landeros v. Flood
(1976) 17 Cal.3d 399, 411.) To constitute a superseding cause, the third party’s conduct
must be an independent event that intervenes in the chain of causation to produce harm of
a kind and degree so far beyond the risk the defendant should have foreseen the law
deems it unfair to hold the defendant responsible for the harm. (In re Ethan C. (2012)
54 Cal.4th 610, 641; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 725.)
Davis argues that because rear-end collisions are a foreseeable risk of the lack of a left
turn lane, Delote’s negligent driving was not the kind of independent event that breaks
the chain of causation between the dangerous condition and the injury. But here the
trial court found the dangerous condition was not a substantial factor in causing this
accident. There is no causal chain to break, and thus there was no reason for the trial
court to apply rules concerning superseding or intervening causation.
              Davis also contends the trial court impermissibly shifted the burden of
proof as to Delote’s negligence. She argues the State bore the burden of proving Delote
was negligent. (Evid. Code, § 521 [“[t]he party claiming that a person did not exercise a
requisite degree of care has the burden of proof on that issue”]; Alexander, supra,
159 Cal.App.3d at p. 900 [speeding “‘is not negligence as a matter of law, and the burden
is on the party asserting negligence’”].] By concluding Delote’s negligence was the sole
cause of the accident, and finding Davis had failed to prove causation, Davis argues the
trial court improperly allocated the burden of proof regarding Delote’s negligence to her.
We find nothing in the statement of decision suggesting the trial court misallocated the
burden of proof.



                                             21
              Moreover, even if the court did misallocate the burden of proof of Delote’s
negligence, this was a bench trial and “‘misallocation of the burden of proof is not
“reversible error per se,” [and] does not vitiate the substantial evidence rule . . . .’
[Citation.]” (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 679.) As we have already
explained, substantial evidence supports the trial court’s findings Delote’s negligence
was the sole cause of the accident.
              Finally, Davis suggests the trial court committed legal error by requiring
she prove a causal link between the dangerous condition and Delote’s negligence. The
argument is a red herring. There is language in some cases to the effect that “the defect
in the physical condition of the property must have some causal relationship to the third
party conduct that actually injures the plaintiff. [Citation.]” (Zelig, supra, 27 Cal.4th at
p. 1136, citing Constance B., supra, 178 Cal.App.3d at pp. 210-212.) And other cases
have clarified the issue is not that the dangerous condition caused the third party to be
negligent, but whether the dangerous condition was a substantial factor is causing the
plaintiff’s injury. For example, Lane v. City of Sacramento (2010) 183 Cal.App.4th
1337, 1348, rejected “[T]he city[’s] assert[ion] plaintiffs could not establish the requisite
causal connection because ‘[t]he center divider did not cause [the third party] to swerve
or move to the left.’ [The] argument . . . misapprehends the nature of the required causal
connection. Under the governing statute, the pertinent question is not whether the divider
caused [the third party] to swerve or move to the left; rather, the pertinent question is
whether plaintiffs’ ‘injury was proximately caused by the dangerous condition.’
(§ 835.)” We note the issue is pending review in Cardova (Antonio) v. City of
Los Angeles (March 20, 2013, S208130) [“The issue to be briefed and argued is limited
to the following: May a government entity be liable where it is alleged that a dangerous
condition of public property existed and caused the injury plaintiffs suffered in an
accident, but did not cause the third party conduct that led to the accident?”].



                                               22
              Here, there is nothing in the trial court’s statement of decision suggesting it
believed causation could be proven only if Davis demonstrated the lack of a left turn lane
caused Delote to drive inattentively. Although Davis’s objections to the tentative
statement of decision raised this argument by objecting that the State’s “argument that the
dangerous condition must facilitate or cause the third party negligence is simply not the
law[,]” there was nothing in the tentative decision suggesting the court was applying such
a rule, and nothing in the record suggesting the State ever made such an argument.
4. Interim Measures
              Finally, Davis argues that even the immunities asserted by the State (design
immunity/reasonable act or omission immunity) applied, the State was nonetheless liable
for failing to take reasonable interim measures to protect against the dangerous condition
(e.g. restriping as a double double yellow line to prohibit left turns, posting warning
signs, or reducing the speed limit before the intersection). Because we have concluded
substantial evidence supports the trial court’s factual finding the dangerous condition was
not the proximate cause of the accident, we need not address this contention further.
                                      DISPOSITION
              The judgment is affirmed. Respondent is awarded its costs on appeal.




                                                  O’LEARY, P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.



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