Filed 1/23/14 Donnelly v. Dept. of Transportation CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


AMBER DONNELLY,
         Plaintiff and Appellant,
                                                                     A135449
v.
DEPARTMENT OF                                                        (San Mateo County
TRANSPORTATION,                                                      Super. Ct. No. CIV 485120)
         Defendant and Respondent.


                                              I. INTRODUCTION
         At around 10:50 p.m. on the night of October 2, 2007, appellant was seriously
injured when the car driven by her companion, Christopher Garcia, crossed the dividing
lines on eastbound Highway 92 in San Mateo County and crashed into a westbound
pickup truck. She sued the Department of Transportation (hereafter Caltrans) under
Government Code section 835,1 alleging that the accident site was dangerous for several
reasons. A trial commenced, but after evidence had been submitted by both sides, the
trial court granted respondent Caltrans’s motion for nonsuit on the ground that appellant
had presented no evidence that, as required by section 835, Caltrans had notice of any
dangerous condition at that portion of the highway. We agree with the trial court and
hence affirm the judgment.




         1
             All further undesignated statutory references are to the Government Code.


                                                             1
                II. FACTUAL AND PROCEDURAL BACKGROUND
       On the afternoon of October 2, 2007, appellant and her friend, Christopher Garcia,
both then 20 years old, drove from their homes in San Jose to San Gregorio State Beach,
a park located just south of Half Moon Bay in San Mateo County. While there, they
made a fire, drank wine, and watched the sunset, after which they fell asleep, not waking
up until it was dark. They then started driving home with Garcia as the driver. He later
pled no contest to a charge of driving under the influence of alcohol. Also, one headlight
on the car being driven by Garcia was covered with a yellow film that “dimmed the lights
a little bit.” Finally, Garcia was also wearing no shoes while driving.
       Shortly before the accident occurred, Garcia was driving uphill on eastbound State
Highway 92, before its intersection with State Highway 35 (also known as Skyline
Boulevard). His intention was to continue eastward on Highway 92 until it joined with
Interstate 280, a north-south highway linking San Francisco, San Mateo and Santa Clara
Counties. Shortly before its intersection with Highway 35, Highway 92 has a slight
uphill incline and, also, a horizontal curve going to the driver’s right. Shortly before the
crest of the hill, Highway 92 becomes almost level and then Highway 35 creates a “T”
style intersection with it. There is then a fork in the highway, with the right lane
connecting south to Highway 35 and the left lane continuing easterly on Highway 92
toward Interstate 280.
       Garcia admitted that he did not see any of the signs or arrows alerting drivers
regarding that upcoming intersection, signs that were, from the exhibits presented to the
court, apparently visible at nighttime and located within a quarter of a mile of that
intersection. Those signs advised drivers of their option to continue east on Highway 92
or turn right and head south on Highway 35.2

       2
          At the time of the accident multiple guide signs to advise drivers of the
upcoming intersection were present. The first read: “Skyline Blvd. right turn one quarter
mile.” The second read: “Highway 35 junction.” The third read: “San Mateo San
Francisco straight. Big Basin to the right and Vista Point to the right.” The last sign,
closest to the intersection, read: “ Highway 92 straight, Highway 35 to the right.” Garcia
testified that he saw none of these signs.


                                              2
       Garcia also conceded that he did not notice any of the other markers on Highway
92, markers designed to help drivers negotiate the intersection, i.e., a large white arrow, a
double yellow line, a raised pavement marker, etc. Indeed, he specifically stated that he
did not see the double yellow line in the middle of Highway 92 at that point.
       When he reached the crest of the hill on Highway 92 and its intersection with
Highway 35, there were no cars in front of them. Garcia testified that he “looked over for
a second” at appellant Donnelly and, when he looked back, “I couldn’t see the road. I
didn’t see nothing. I felt like I was going to drive off a mountain, so I jerked my wheel to
the left and then came up to a stop, and when we came to a stop we got hit.” That hit
came from a Ford pickup truck travelling westbound on Highway 92, at about 10:50 p.m.
But, apparently, before Garcia swerved into the westbound lane, he had also driven his
vehicle into a graveled area off on the right side of the roadway, because he remembered
he had “hit some gravel,” and the only gravel in the area was in two triangular areas on
the south side of the intersection.
       Appellant Donnelly testified that she had no recollection of the accident. She was
severely injured as a result of the collision, including injuries to her head, brain, ribs,
pelvis, right femur, right foot and lung.
       After the accident, Garcia exited the car and told people that “this is my fault.” He
had a “strong” odor of alcohol on his breath and his eyes were “red, watery,” and his
speech was “slow,” per a CHP report. Garcia was then given a series of field sobriety
tests, which he failed. His blood alcohol concentration was then measured, by two tests,
at .077 and .072 and could well have been as high as .08 at the time of the accident.
       Garcia was subsequently arrested and charged with driving under the influence of
alcohol and causing injury to another person in violation of Vehicle Code section 23153,
subdivision (a), a charge to which he later pleaded no contest.
       Appellant filed an action against Caltrans alleging a dangerous condition of public
property in violation of section 835. Her complaint alleged that the site of the accident
was dangerous for several reasons, e.g., limited sight distance and the visibility of the
striping, signs, and the intersection from the crest of the Highway 92 hill, the curvatures


                                               3
in that highway, and inadequate warning signs in the area advising drivers to slow to 35
miles per hour.
          A jury trial began on January 9, 2012.3 After an opening statement by counsel for
appellant, counsel for Caltrans moved for a nonsuit because that statement omitted any
mention of how and when Caltrans had any notice of a dangerous condition. The trial
court (the Honorable Leland Davis III) denied that motion on the basis that all appellant’s
counsel’s opening statement needed to include was a mention that there had been such
notice.
          During the ensuing presentation of appellant’s case, her counsel presented one
expert witness, George Parker Bell, who testified as to the claim of a dangerous condition
on the highway. His essential conclusions were that the relevant part of Highway 92 was
unsafe because of several factors, including curves in the road that have inadequate sight
and stopping distances, a horizontal curve that was combined with an uphill grade,
insufficient channelization for both the intersection and its dirt and gravel islands, and
lack of adequate warning signs.
          At the close of appellant’s case, Caltrans moved for a nonsuit on two bases: (1)
appellant could not establish that the subject location was in a dangerous condition as a
matter of law and (2) even if it was, there was no evidence that Caltrans had notice
thereof, as required by section 835, subdivision (b).
          Although the trial court noted that Caltrans had raised “good points” in its motion,
and specifically noted that there had been “no evidence of any notice of any . . . alleged
dangerous condition,” it concluded that it would have Caltrans present its defense case,
and thus give it more time to review all the evidence.
          At the close of Caltrans’s defense case, the trial court granted its motion for
nonsuit. Because of the testimony of Bell, appellant’s expert witness, that the location
was “unsafe,” the court declined to grant the nonsuit on the basis that the relevant area
was not dangerous. Instead, the court ruled that appellant had not presented any evidence

          3
              All further dates noted are in 2012.


                                                     4
that Caltrans knew or should have known of any allegedly dangerous condition at the
relevant location on Highway 92, especially in view of the fact that, as argued by
Caltrans to the court, before the accident in question here, over 46 million vehicles had
driven through that same area without a similar accident occurring.
       On January 31, the court’s order granting Caltrans’s motion for nonsuit was
entered. A judgment in favor of Caltrans was entered on February 27. Appellant filed a
timely notice of appeal on May 16.
                                     III. DISCUSSION
A.     Our Standard of Review and the Pertinent Statute.
       The parties agree that we review a judgment based on the grant of a motion for a
nonsuit de novo, and they are correct. (See Thrifty Payless, Inc. v. Mariners Mile
Gateway, LLC. (2010) 185 Cal.App.4th 1050, 1060.)
       Our Supreme Court has stated the law applicable to a review of such a judgment
thusly: “A defendant is entitled to a nonsuit if the trial court determines that, as a matter
of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his
favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court
may not weigh the evidence or consider the credibility of witnesses. Instead, the
evidence most favorable to plaintiff must be accepted as true and conflicting evidence
must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to
which it is legally entitled, . . . indulging every legitimate inference which may be drawn
from the evidence in plaintiff[’s] favor.” [Citation.] A mere ‘scintilla of evidence’ does
not create a conflict for the jury’s resolution; ‘there must be substantial evidence to create
the necessary conflict.’ (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 410, p. 413.)”
(Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291; see also Saunders v.
Taylor (1996) 42 Cal.App.4th 1538, 1541-1542.)
       The operative statute at issue in this appeal is section 835, which reads:
       “Except as provided by statute, 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


                                               5
the dangerous condition, that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred, and that either:
       “(a) A negligent or wrongful act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition; or
       “(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.”
B.     The Dangerous Condition Requirement
       As reflected above, liability under section 835 requires proof of a “dangerous
condition.” This term is defined in section 830, subdivision (a) which states:
“ ‘Dangerous condition’ means 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.”
       At trial, appellant attempted to establish that the intersection where she was
injured was a dangerous condition through the testimony of her traffic engineer expert,
George Parker Bell. On appeal, the parties disagree about whether Bell’s testimony was
sufficient evidence to warrant a jury determination as to whether a dangerous condition
existed. Indeed, Caltrans asks us to affirm the judgment of nonsuit on the basis that
appellant “had not presented sufficient evidence to show that the location was dangerous
as a matter of law.” Under the circumstances, it is not necessary to decide this issue,
which was not the basis upon which the nonsuit was granted.4
       Nevertheless, we summarize Bell’s opinion here because it is relevant to the trial
court’s determination that there was insufficient evidence that Caltrans had notice of an


       4
        We note for the record that a trial court may direct a judgment in an alleged
“dangerous condition” lawsuit brought against a public entity notwithstanding an expert’s
testimony that there was such a condition. (See Antenor v. City of Los Angeles (1985)
174 Cal.App.3d 477, 484 and McKray v. State of California (1977) 74 Cal.App.3d 59,
62-63.)


                                             6
allegedly dangerous condition at the intersection of Highways 92 and 35. Bell, a New
Mexico-based licensed professional engineer, described himself as a “self-employed
expert dealing with various fields of engineering involving highway and transportation
design maintenance and operational issues regarding highways.” Bell never testified that
Highway 92, the road Garcia was driving on all the way, was dangerous; he did,
however, testify that he believed its intersection with Highway 35 was “unsafe.”
       Bell’s opinion was based on several factors including (1) the combination of
vertical and horizontal curves at the intersection unaccompanied by safe stopping and
sight distances; (2) “insufficient channelization at the approach of this intersection on the
date of the accident;” (3) improper dirt or gravel areas at the junction of the highways;
and (4) inadequate and or improper signage on eastbound Highway 92.5
C.     The Notice Requirement
       Section 835.2 defines actual and constructive notice:
       “(a) A public entity had actual notice of a dangerous condition within the meaning
of subdivision (b) of Section 835 if it had actual knowledge of the existence of the
condition and knew or should have known of its dangerous character.
       “(b) A public entity had constructive notice of a dangerous condition within the
meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the
condition had existed for such a period of time and was of such an obvious nature that the
public entity, in the exercise of due care, should have discovered the condition and its
dangerous character. On the issue of due care, admissible evidence includes but is not
limited to evidence as to:
       “(1) Whether the existence of the condition and its dangerous character would
have been discovered by an inspection system that was reasonably adequate (considering

       5
         The evidence introduced by the parties showed that, approaching the T-shaped
intersection with Highway 35, eastbound Highway 92 increased its height, i.e., had a
vertical curve of 7 percent when it was 300-400 feet west of that intersection, an amount
that was reduced to 4.2 percent about 200 feet away, and to 1.3 percent just before the
intersection. Also, at about 300 feet west of the intersection, was a sign advising that
Highway 92 continued straight ahead, while Highway 35 required a right turn.


                                              7
the practicability and cost of inspection weighed against the likelihood and magnitude of
the potential danger to which failure to inspect would give rise) to inform the public
entity whether the property was safe for the use or uses for which the public entity used
or intended others to use the public property and for uses that the public entity actually
knew others were making of the public property or adjacent property.
        “(2) Whether the public entity maintained and operated such an inspection system
with due care and did not discover the condition.”
        The plaintiff has the burden of proving that the defendant public entity had actual
or constructive notice of the dangerous condition and, indeed, had such in sufficient time
to act to correct it. (Briggs v. State of California (1971) 14 Cal.App.3d 489, 494-495.)
However, “[c]onstructive notice may be imputed if it can be shown that an obvious
danger existed for a sufficient period of time before the accident to have permitted state
employees, in the exercise of due care, to discover and remedy the situation.” (Id. at p.
495; see also Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298,
303.)
        Here, appellant contends that she produced sufficient evidence to establish
Caltrans had actual notice of the allegedly dangerous condition at the site where she was
injured. To support this argument, she relies on (1) Bell’s testimony, which we have
summarized above; and (2) the plans and specifications for the relevant portion of the
roadway, which date back to 1934 when the roadway was built (the “As-Built Plans”).
According to appellant, the crucial plan document, which was admitted into evidence as
Exhibit 20, pertains to an October 1991 modification project that Caltrans performed at
the intersection where her accident occurred.
        Appellant reasons that the As Built Plans establish that Caltrans has always been
aware of the condition of the roadway that it built and maintained, and that Exhibit 20 is
substantial evidence that Caltrans also knew the condition at the intersection was
dangerous because “[t]his very portion of the roadway was specifically studied for safety
improvements” as part of the 1991 project. In other words, appellant contends that
evidence that Caltrans designed and implemented the standards for the curves and other


                                              8
characteristics of this portion of the roadway is evidence that it had actual knowledge that
the condition was dangerous in the ways outlined by Bell at trial.
       Alternatively, appellant contends that essentially this same evidence establishes
that Caltrans had constructive notice of the allegedly dangerous condition. She reasons:
“The State inspected this specific area of the roadway in 1991 when it reviewed and
applied the design standards for the curves in that section of the roadway. If the State had
exercised due care at this time and evaluated the design standards for all of the curves in
the project section, it would have easily seen that the roadway at the curve approaching
the intersection failed to meet minimum stopping and decision sight distances, as well as
other channelization problems with the roadway that Mr. Bell describes as the bases for
his opinion that the roadway is unsafe and dangerous.”6 (Bolding in original.)
       The trial court specifically addressed Exhibit 20 in its verbal ruling granting the
motion for a nonsuit. It said: “I’ve reviewed Exhibit 20, and I reviewed several times the
discussions with Mr. Bell regarding Exhibit 20. . . . I could find nothing in Exhibit 20 that
referred to, mentioned, acknowledged, or in any other way supported an inference that
the State was aware of any alleged dangerous condition at the site of this accident.”
(Italics supplied.) We have also reviewed Exhibit 20, and we agree with the trial court
that this evidence does not support a finding of actual or constructive notice even when
considered in conjunction with Bell’s expert opinion.
       Exhibit 20 is a 1991 Caltrans “Fact Sheet” for its work that year on Highway 92.
It describes the “proposed project” as impacting 1.9 miles of Highway 92 west of “the
intersection with Route 35.” It then states: “The scope of the project is widening to
provide a continuous uphill slow vehicle lane and to upgrade the existing nonstandard
lane and shoulder widths.” Exhibit 20 contains a section specifically entitled “Safety
Improvements,” which reads: “Lane widths, presently at 11 feet, will be increased to




       6
         As noted above, Bell never used the term dangerous to describe the road, but he
did use the term “unsafe.”


                                             9
standard 12-foot lanes. Shoulder widths, presently at 4 feet, will be increased to an 8-foot
standard shoulder adjacent to the downhill lane.”
       Exhibit 20 also includes two key sections entitled “Standards for which
Exceptions are Requested” and “Reasons for Requesting Exceptions.” In these sections,
Caltrans requested—and clearly received—permission to (1) reduce the “design speed”
on certain portions of the 1.9 mile segment from the standard speed of 40-50 mph to 35
mph, (2) reduce the curvature allowed at a “1400-foot long ‘horseshoe’ curve” from a
550-foot radius to a 360 foot radius, but also reduce the speed there from the “design
speed” of 40 mph to 35 mph, and (3) reduce the horizontal clearance on the affected
portions from the standard horizontal clearance of 10 feet on a two-lane highway to
“minimum clearances” of four to eight feet.
       The document then explains why these exceptions were important to this widening
and improving of the Highway 92 project; it says: “The project is located in an
environmentally sensitive area in steep mountainous terrain. To lessen the impact to the
environment and enable the project to be delivered within currently programmed STIP
funds and schedules, it is proposed to widen the existing alignment. . . . [¶] Providing 40
or 50 MPH standards to the next segment easterly of Route 35 (PM 5.2 to R7.3) requires
entirely new alignments to maintain a maximum 7 percent gradient. [¶] Recent traffic
studies show an urgent need to provide uphill slow vehicle lanes in long, steep sustained
grades. To accomplish this needed safety improvement, it is necessary to maintain the
existing alignment, provide safety improvements and avoid delays due to the right of way
acquisition and impacts on surrounding sensitive areas.”
       Finally, in another potentially relevant section titled “Accident Data,” Exhibit 20
states that, between 1988 and 1991, “there was a total of 58 accidents, of which 20 were
injury and 3 were fatality accidents. . . . The majority of accidents were of the ‘Rear End’
or ‘Hit Object’ variety.”
       We conclude that Exhibit 20 and Bell’s interpretation of it are insufficient
evidence to establish that Caltrans had actual or constructive notice of the dangerous
condition alleged by appellant in this case for at least two reasons.


                                              10
       First, the safety measures and design standards for the curves in this section of the
highway that Caltrans adopted in 1991 had nothing to do with the allegedly dangerous
condition that Bell testified about in this case. Rather, as Bell confirmed, the
improvements added to Highway 92 in 1991 and described in Exhibit 20 related entirely
to the “ ‘continuous uphill slow vehicle lane’ ” part of that highway, and not to the crest
of the hill, i.e., where Highways 92 and 35 meet. More specifically, as Bell testified, the
1991 improvements were “designed to remedy the hill climbing section” of Highway 92.
Put another way, and as Caltrans contends in its brief to us, “the 1991 Project thus
involved widening the ‘continuous uphill slow vehicle lane and to upgrade the existing
non-standard lane and shoulder widths’ and did not involve the characteristics of the
roadway alleged as dangerous in this case. Nowhere in the document did it discuss
visibility or sight distance at the crest of the hill or the approach to the intersection
between Highways 92 and 35.”
       This point is, indeed, substantially confirmed by several of the exhibits introduced
into evidence which showed that, 300 feet (i.e., one football field) from the intersection
where the crash occurred, there was practically no curvature remaining in Highway 92,
and only about a 7 percent upward slope, which reduced to 1.3 percent at the intersection.
       Second, as appellant acknowledges, Bell specifically relied on the accident data
information set forth in Exhibit 20 to support his opinions in this case. “As a general
rule, ‘[w]here the circumstances are similar, and the happenings are not too remote in
time, other accidents may be proved to show a defective or dangerous condition,
knowledge or notice thereof, or to establish the cause of an accident. [Citations.]’
[Citations.] ‘The evidence must relate to accidents which are similar and which occur
under substantially the same circumstances. [Citations.]’ [Citation.]” (Genrich v. State
of California (1988) 202 Cal.App.3d 221, 227-228.)
       Here, however, the accidents described in Exhibit 20 occurred more than 16 years
before appellant was injured and the majority of them were “of the ‘Rear End’ or ‘Hit
Object’ variety.” More fundamentally than that, they all occurred prior to the 1991
roadway project which widened the uphill portion of the highway below the crest where


                                               11
the accident occurred. Thus, these prior accidents are not similar to the accident at issue
in this case, and they do not constitute evidence of actual or constructive notice of the
allegedly dangerous condition that appellant claims was the cause of her accident.
       On the other hand, appellant erroneously discounts the significance of evidence
produced by Caltrans regarding the absence of similar accidents at the intersection where
appellant was injured. Bell himself conceded at trial that, in the five years prior to the
2007 accident involving Garcia’s car, over 46 million vehicles had passed through the
segment of Highway 92, 23 million of them going, as Garcia was, in an eastbound
direction. None of them were involved in any sort of accident where a driver lost control
of his car at or near the intersection of that highway and Highway 35.
       This evidence regarding the absence of similar accidents is clearly relevant and it
reinforces the trial court’s finding that the trial evidence was legally insufficient to
support a verdict or judgment against this public entity. (See, e.g., Sambrano v. City of
San Diego (2001) 94 Cal.App.4th 225, 243 [undisputed evidence that there had not been
any reports of similar injuries]; Clarke v. Michals (1970) 4 Cal.App.3d 364, 372
[uncontradicted evidence that no prior claim or complaint about allegedly dangerous
condition had been received by the defendant city]; see also Meyer v. City of San Rafael
(1937) 22 Cal.App.2d 46, 49-51.)7
       As the trial court found, nothing in Exhibit 20 indicates that Caltrans had, or
should have had, any notice of any dangerous condition at the intersection where
appellant was injured. Nor was any other clearly pertinent evidence of Caltrans’s either
actual or constructive notice adduced by appellant. Indeed, the evidence pertinent to this
issue was that Caltrans had never received a similar complaint about the condition that




       7
          Indeed, Bell also conceded that this fact was relevant in this case. When asked
“[I]sn’t the fact that we’ve had at least . . . 23 million vehicles going through this
intersection with no prior accidents an indication that the public in general using this
roadway with due care is not having a problem safely negotiating that intersection?,” he
answered: “Yes.”


                                              12
appellant alleges was dangerous in this case. Therefore, we reject appellant’s claim that
she presented sufficient evidence to defeat Caltrans’s motion for a nonsuit.
                                   IV. DISPOSITION
       The judgment of the Superior Court is affirmed.




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                                 _________________________
                                 Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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