Filed 7/17/14 Martinez v. Orozco CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JAMES MARTINEZ et al.,

     Plaintiffs and Respondents,                                       G047381

         v.                                                            (Super. Ct. No. 30-2010-00333764)

OSVALDO OROZCO,                                                        ORDER MODIFYING OPINION
                                                                       AND DENYING PETITION FOR
     Defendant and Appellant;                                          REHEARING
                                                                       [NO CHANGE IN JUDGMENT]
DEPARTMENT OF TRANSPORATION,

     Defendant and Respondent.



                   The opinion filed in this case on June 17, 2014, is ordered modified as
follows:
                   1. On page 16, the following is added after the last sentence of the first full
paragraph:
                   We therefore remand the matter for further proceedings not inconsistent
with this opinion.
             This modification does not change the judgment. The petition for rehearing
is DENIED.




                                              MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




                                          2
Filed 6/17/14 (unmodified version)




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JAMES MARTINEZ et al.,

     Plaintiffs and Respondents,                                       G047381

         v.                                                            (Super. Ct. No. 30-2010-00333764)

OSVALDO OROZCO,                                                        OPINION

     Defendant and Appellant;

DEPARTMENT OF TRANSPORATION,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, B. Tam
Nomoto Schumann, Judge. Affirmed in part, reversed in part and remanded.
              Veatch Carlson, Bruce Schecter, Steven C. Robinson, Peter H. Crossin;
Greines, Martin, Stein & Richland, Robert A. Olson and Jeffrey E. Raskin for Defendant
and Appellant.
              Ronald W. Beals, Chief Counsel, Jeffrey R. Benowitz, Deputy Chief
Counsel, Glenn B. Mueller, John Frederick Smith, Assistants Chief Counsel and Heidi A.
Wierman, Deputy Attorney for Defendant and Respondent.
              No appearances for Plaintiffs and Respondents.
                                *             *             *
              Defendant Osvaldo Orozco drove southbound on State Route 57 freeway
(SR 57) with three passengers in his 1972 Chevrolet Nova. He had been drinking and
lost control of the car. It went off the freeway, down an embankment, and stopped only
after hitting two trees and catching fire. Orozco and his front passenger were apparently
thrown from the car and injured, but the two rear seat passengers died. The surviving
passenger and the estates of the two decedents sued Orozco for negligence and the
California Department of Transportation (Department) for maintaining a dangerous
condition. Orozco cross-complained against the Department. The jury found Orozco
liable. In its special verdict, the jury found the state’s property was in a dangerous
condition, but the “kind of injury” suffered was not reasonably foreseeable. Orozco
appealed and contends the jury verdicts in connection with the issue of the Department’s
liability are inconsistent and require a new trial. The Department argues the verdicts are
not inconsistent and, if they are, Orozco forfeited his claim by not raising the issue in the
trial court. We find Orozco did not forfeit the issue and the verdicts are inconsistent. We
remand the matter for a new trial against the Department only.




                                              2
                                              I
                                          FACTS
A. The Lawsuits
              Luis Mendez and the parents of Jesus Colin filed suit against Orozco and
the Department, alleging Colin and Mendez were passengers in a vehicle driven by
Orozco on SR 57 on January 11, 2009. The complaint alleged Orozco lost control of the
automobile, drove across all traffic lanes, left the highway, and went down an
embankment where it hit two eucalyptus trees and burst into flames. It further alleged
Mendez was found 500 feet away from the car and Colin was found dead inside the
vehicle. The complaint also alleged the Department created a dangerous condition at the
location of the accident by having an unprotected, steep dirt embankment immediately
adjacent to SR 57, and placing eucalyptus trees on the slope. Additionally, it was alleged
a guardrail or other protective device should have been in place where Orozco’s vehicle
left the highway.
              Andrew Martinez’s parents also filed suit against Orozco and the
Department, alleging Martinez died in the crash. Orozco subsequently filed a cross-
complaint against the Department for apportionment of fault, indemnification, and
declaratory relief. All matters were consolidated for trial.


B. The Evidence at Trial
              1. The Accident
              About 4:00 a.m. on January 11, 2009, Orozco drove his 1972 Chevrolet
Nova southbound on SR 57. Luis Mendez was the right front passenger. Andrew
Martinez and Jesus Colin were the backseat passengers. The car had no seat belts. The
group had been celebrating a birthday. According to Orozco, he had three or four beers
earlier that night, but stopped drinking by midnight.



                                              3
              Esther Carroll, who was driving southbound in the number two lane of SR
57, saw an old Chevrolet Nova in her rear mirror. It passed her on her left in the number
one lane, immediately adjacent to the carpool lane, at a normal speed for the
circumstances. A couple of seconds after the Nova passed Carroll, “it just disappeared.”
The next thing Carroll remembered seeing was a “fiery mushroom” from the explosion.
Carroll said there were no other cars heading southbound at that time. She pulled over to
the side of the road and called 911.
              Orozco stipulated he had been negligent. He said he was not sure what
caused him to lose control. He remembered a vehicle close to the driver’s side of the
Nova and he felt something on the back of his head, as if he had been hit in the head. In a
letter apparently written to the judge who was to sentence him on the criminal charges
arising out of the incident, Orozco claimed the rear passengers had been playing with a
Club, a steering wheel locking device, apparently implying he was hit in the head by the
Club.
              Although Orozco does not remember going off the freeway or down the
embankment, he remembers waking up to a burning sensation on his face and right
forearm. He found Mendez on the ground. Mendez’s jacket was charred and hot to the
touch. Still, Orozco tried to pull Mendez away from the burning car.
              Mendez, who had been drinking too, said he “must have fallen asleep”
before he felt the car go out of control. He regained consciousness on the ground when
revived by Orozco. He remembered feeling heat, smelling smoke, and feeling pain all
over. Orozco helped him to his feet, but Mendez had trouble walking and fell. The next
thing he remembered was waking up in a hospital emergency room. The highway patrol
officer who responded to the scene said Mendez clearly had a broken arm.
              According to one accident reconstructionist, the Nova was travelling
between 72 and 74 miles an hour at the time of the incident. Another estimated the Nova
hit the curb/asphalt dike at the end of the road’s shoulder at roughly 75 to 80 miles an

                                             4
hour. Based on Orozco’s speed and the results of his alcohol tests, it was opined Orozco
had not been driving in a safe manner.
              The Nova went off the road at almost a 90-degree angle, crossed the 10-
foot shoulder to the highway, hit the assault curb/dike, went over the embankment next to
the shoulder, and down the steep slope, stopping only after it hit two eucalyptus trees
Caltrans had planted on the slope, and burst into flames. An expert testified the contact
with the second tree ruptured the fuel tank and the vehicle caught fire when leaked
gasoline was ignited by an electrical spark, or after the leaked gasoline came in contact
with a hot surface on the car. Once firefighters put out the fire, a highway patrol officer
saw the two deceased passengers, Martinez and Colin, in the front left portion of the
passenger compartment “kind of piled on top of each other” and fully burned.
              2. The Roadway
              SR 57 opened for traffic in 1970. It has five southbound lanes (including a
carpool lane), a 10-foot shoulder, a three-foot-flat dirt area adjacent to the shoulder, and a
steep downhill slope after the flat dirt area. In the 10 years prior to the present incident,
there were six other accidents in which cars ran off the road in the same area. Two
vehicles went down the embankment and struck trees.
              3. The Slope
              There was evidence produced that the slope next to SR 57 where the
incident occurred, is “too severe.” It is a 13 to 15 foot “rather steep down slope.” It has a
two-to-one ratio, meaning it drops off one foot in elevation for every two feet horizontal.
A two-to-one slope is considered not only nonrecoverable— a vehicle on the slope
cannot be controlled— but also nontraversable, meaning a car is likely to roll over on the
slope if it “get[s] sideways a little bit.” In 2006, the Department’s Traffic and Design
Manual found two-to-one slopes to be too severe and modified the standards to require
slopes no greater than four-to-one (one-half the steepness of the slope in this matter). If



                                              5
the slope on SR 57 were to be built today, it would be engineered to a four-to-one or six-
to-one ratio due to safety issues.
              The embankment contained 15-inch wide eucalyptus trees 12 feet down the
slope. The trees were added between 1997 and 2001. An automobile hitting a six-inch
wide tree will usually break the tree, but 15-inch wide trees do not break. Instead, a
vehicle colliding with such a tree will sustain indentations, which on occasion will result
in fire due to the suddenness of the impact or the fracturing of the gas tank. As of 2002,
large trees on such a steep slope were no longer standard. The addition of trees to a too
severe slope exacerbates the safety problem, given cars suffer massive structural damage
when they strike a large tree. According to a traffic engineer, it was foreseeable for a car
to go off the highway and down the slope.
              In March 1999, there was an accident in the same area. A vehicle swerved
to miss a tire tread in the road. The driver lost control and the vehicle went off the
shoulder, struck the asphalt dike, and overturned on the shoulder. In December of that
year there was another accident in the same area. A vehicle was travelling southbound at
about 90 to 100 miles per hour, swerving in and out of traffic, cutting off another vehicle.
The driver of the second vehicle lost control, went off the roadway, and over the
embankment. It overturned and hit a tree near the eucalyptus trees involved in the
present incident. In May 2000, a car went over the embankment and hit a fence.
              In July 2002, a car in the southbound number four lane swerved, lost
control, and went over the embankment, hitting a tree. Another accident in the same area
occurred in February 2004. On that occasion, a vehicle in the number one lane cut off a
vehicle in the number two lane, causing that latter driver to lose control and leave the
roadway, stopping only when the vehicle hit a fence and a tree. In July 2004, the driver
of a vehicle in the number one lane claimed to have been cut off, lost control of the
vehicle, went off the road, hit the dike at the end of the roadway and went over the
embankment into a shrub/tree.

                                              6
              In December 2005, a vehicle in the number four lane was side-swiped. The
driver lost control, hit the dike at the end of the shoulder, and overturned on the
embankment.
              4. Guardrail Installation
              A traffic engineer testified there should have been a guardrail in place at the
scene of the accident. If a guardrail had been installed, the Nova would not have gone
over the embankment. It would have struck the guardrail and bounced back into the
traffic lanes. The expert said he would not have expected fatalities had a guardrail been
in place. Neither would the fuel tank have ruptured.
              The Department has criteria to determine whether a guardrail should be
installed at a given location. The equal severity curve is a chart used to determine
whether an accident would be less, equal, or more severe if a guardrail were in place at a
given location. The degree of the slope is listed on the vertical (y) axis and the height of
the embankment is listed on the horizontal (x) axis. According to the equal severity
curve, an accident in which a vehicle leaves the roadway and goes off an embankment of
slightly more than 10 feet with a two-to-one slope would be more severe than if the
vehicle had hit a guardrail instead.
              There was evidence the equal severity curve was met in this case. The
Department’s expert testified the Department is not required to install a guardrail at every
location where the equal severity curve is met. The reason is financial: A study in the
1970’s showed it would cost $300 million to install guardrails in every location in
California where the equal severity curve has been met. Consequently, guardrails are
economically feasible only when installed “at potentially high frequency ran-off-road
accident location; i.e., on the outside of horizontal curves on higher volume roadways.”
              The Department’s expert testified that in the 10 years preceding this
incident, 442 million vehicles passed by the scene and there were five accidents in which
vehicles went over embankments in the area and only two occurred where the equal

                                              7
severity curve had been met. As a result, he opined one accident for every 88 million
vehicles does not establish a high probability of a vehicle leaving the highway at that
location. He concluded such a probability weighs against installing a guardrail even if
the equal severity curve was met.


C. The Verdicts and Posttrial Proceedings
              The court provided the jury with special verdict forms. The jury found
Orozco’s negligence was a substantial factor in causing Mendez’s injuries and the deaths
of Colin and Martinez. It further found state property was in a dangerous condition at the
time of the incident, but the dangerous condition did not “create a reasonably foreseeable
risk” that the kind of injury suffered by Mendez, Colin, or Martinez would occur. The
jury awarded the parents of Colin and Martinez, respectively, $35,000 in economic loss
and $1,000,000 in noneconomic loss, and awarded Mendez $179,000 in economic and
noneconomic loss.
              The Colins family filed a motion for judgment notwithstanding the verdict
in favor of the Department, or a new trial. The Martinezes also sought a new trial.
Orozco joined in the motions for new trial. The court denied the motions. Martinez and
Orozco appealed from the judgment. We consolidated the appeals. We subsequently
granted Martinezes’ motion to dismiss their appeal. None of the plaintiffs filed a
respondent’s brief in the present matter.
                                             II
                                      DISCUSSION
A. Forfeiture
              Orozco claims the verdicts are inconsistent and require reversal. The
Department argues Orozco forfeited this claim, either because the inconsistency was
apparent based on the special verdict forms submitted to the jury or because he failed to
object to the inconsistency before the jury was excused. On the issue of forfeiture, the

                                             8
Department relies on Greenwich S.F. LLC v. Wong (2004) 190 Cal.App.4th 739.
Greenwich is inapposite. There, the court held a buyer waived her claim against an
escrow company for return of her deposit by agreeing to an escrow cancellation
instruction releasing the escrow company from “‘any and all liability in connection with
this escrow.’” (Id. at p. 767.) Greenwich did not consider the issue of inconsistent
verdicts.
               The Department argues the appellants in each case cited by Orozco had
“presevered [their] appellate rights either during the trial or through . . . posttrial
motions.” (See Kurtin v. Elieff (2013) 215 Cal.App.4th 455, 463 [issue raised in new trial
motion]; Singh v. Southland Stone U.S.A., Inc. (2010) 186 Cal.App.4th 338, 350-351
[same]; Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 707 [request in trial
court for judgment to be entered in its favor]; City of San Diego v. D.R. Horton San
Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 676 [issue of inconsistent verdicts
raised in motion for new trial]; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336,
1344;1 Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 299 [issue was whether
trial court erred in instructing the jury it had returned inconsistent verdicts].) The
question of whether the appellants in those cases forfeited the right to complain of
inconsistent verdicts was not at issue, and “‘it is axiomatic that cases are not authority for
propositions not considered.’ [Citation.]” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57
Cal.4th 1109, 1160.) More troubling is the Department’s failure to respond to Orozco’s
citation to Zagami Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083 (Zagami) on


               1 In Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th 1336, neither side
sought reversal on the ground of inconsistent verdicts. Rather, Hughes argued the verdict
against it for breach of the implied covenant of good faith should be set aside because the
jury found no breach of contract. Shaw on the other hand argued the award should be
sustained as damages on another cause of action, wrongful discharge in violation of
public policy. The court found both were wrong and the issue was one of inconsistent
verdicts, which are “‘against the law’” in California. (Id. at p. 1344.)

                                                9
this issue, especially in light of the Department’s citation to Zagami for another
proposition.
               The Department’s forfeiture argument is in direct contradiction to the
decision in Zagami. There, the plaintiff rented a skiploader tractor to the defendant. The
skiploader subsequently disappeared from the jobsite. The jury awarded the plaintiff
$15,500 on a breach of contract cause of action, but valued the skiploader at $30,000 for
purposes of the open book account cause of action. On appeal, the defendant claimed the
judgment should have been for no more than $15,500 and the plaintiff argued it was
entitled to judgment for $30,000. (Zamagi, supra, 160 Cal.App.4th at pp. 1086-1087.)
The appellate court found the jury’s special verdicts were “hopelessly ambiguous,” and
consequently the trial court erred in awarding the plaintiff $30,000. (Ibid.) The court
noted the inconsistent findings in the special verdicts were “apparent on the face of the
verdict” and neither party objected prior to the discharge of the jury. (Id. at p. 1093.)
The court, however, reiterated that “inconsistent jury findings in a special verdict are not
subject to waiver by a party [citation] . . . .” (Ibid., fn. 6.) Orozco’s failure to object to
the special verdicts rendered by the jury does not waive or forfeit his right to litigate
whether the special verdicts are inconsistent. (Ibid.; Lambert v. General Motors (1998)
67 Cal.App.4th 1179, 1182 [forfeiting issue by failing to object before discharge of the
jury is “not the law in California”].)
               Neither did Orozco forfeit the issue by failing to object to the special
verdict form. There was nothing inherently wrong with the form. Relevant to our
discussion, the form (CACI VF-1100)2 first asked the jury: “Was the property of
defendant State of California in a dangerous condition at the time of the accident?” If the
jury responded to that question affirmatively, it was next asked: “Did the dangerous


               2
             The form is based on CACI No. 1100, which in turn is based on based on
Government Code section 835, the statutory provision pertaining to dangerous public
property.

                                               10
condition create a reasonably foreseeable risk that this kind of injury would occur?”
              The form does not itself call for inconsistent verdicts. For example, if a
plaintiff drove off the freeway and went over the embankment in the same location,
stopping only once the car hits the trees planted on the slope, at which point the plaintiff
got out of his vehicle and stepped into a patch of poison ivy, it is quite possible a jury
would find a dangerous condition existed—an unguarded, unsafe slope—but the
dangerous condition did not create a reasonably foreseeable risk of the kind of injury
suffered by that plaintiff, i.e., being infected with poison ivy.
              The problem here was not the form, but the answers to the two questions
considered in light of the evidence presented at trial. Accordingly, Orzoco did not forfeit
the issue of inconsistent verdicts by failing to object to the special verdict form.


B. Inconsistent Verdicts
              As fact finder, a jury is not permitted to make inconsistent factual
determinations based on the same evidence. (City of San Diego v. D.R. Horton San
Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.) “Inconsistent verdicts are
‘“against the law,”’ and the proper remedy is a new trial. [Citation.]” (Shaw v. Hughes
Aircraft Co., supra, 83 Cal.App.4th at p. 1344; Code Civ. Proc., § 657, subd. (6).)
              We review de novo whether special verdicts are inconsistent. (Singh v.
Southland Stone, U.S.A., Inc, supra, 186 Cal.App.4th at p. 358; Zagami, supra, 160
Cal.App.4th at p. 1092.) In making that decision, we review the answers in the special
verdict form in the context of the record, including the pleadings, the evidence, and
counsel’s arguments. (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 718-
720 [evidence, instructions, and argument]; Zagami, supra, 160 Cal.App.4th at p. 1092
[pleading, evidence, and instructions].) We do not infer findings in support of different
verdicts. (Singh v. Southland Stone, U.S.A., Inc., supra, 186 Cal.App.4th at p. 358.) “An
inconsistent verdict may arise from an inconsistency between or among answers within a

                                              11
special verdict [citation] or irreconcilable findings. [Citation.] Where there is an
inconsistency between or among answers within a special verdict, both or all the
questions are equally against the law. [Citation.] The appellate court is not permitted to
choose between answers. [Citations.]” (City of San Diego v. D.R. Horton San Diego
Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.)
              The state’s liability for maintaining a dangerous condition on its property is
set forth in Government Code section 835: “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 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.”
              Here, the jury found the state’s property—the steep embankment adjacent
to the southbound lanes of SR 57—was in a dangerous condition at the time of the
accident. Inconsistent with that determination was the jury’s finding the dangerous
condition did not “create a reasonably foreseeable risk that this kind of injury would
occur.” Two people died and two people were injured in the accident, as happens in car
crashes at high speeds. The slope adjacent to the highway was too steep to permit a
driver whose vehicle has left the road to recover control of the vehicle until it reaches the
bottom of the slope. Aggravating the danger was the existence of large trees on the
untraversable slope. If a vehicle hits a large tree at a high rate of speed or rolls over,
injury or death is likely. As Jai Singh, an accident reconstructionist testified, “Cars
generally don’t do well when they hit objects such as trees and poles because . . . it

                                              12
causes some rather massive structural compromise of the vehicle.” In this case, Singh
described the Nova as “really kind of mangled.” For the jury to find the state’s property
at issue—the slope with its large trees—was in a dangerous condition and the injuries
suffered in this case were not reasonably foreseeable is internally inconsistent.
              In Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, the City of
Santa Monica and a hotel maintained a dangerously designed curb. A consultant found
the ramp for disabled access was dangerous due to the “variable face curb” which
presented a tripping hazard and the mixing of pedestrians with vehicular traffic. (Id. at p.
1064.) Mizel sued after he tripped over the variable face curb and “smashed” into a
vehicle. (Id. at p. 1065.) In its special verdicts, the jury found the hotel was negligent,
the ramp and the variable face curb were dangerous conditions, the dangerous condition
did not create the foreseeable risk of the kind of injury suffered by Mizel, and
apportioned the fault of the hotel and the City of Santa Monica. (Id. at pp. 1068-1069.)
The appellate court concluded the trial court did not err in providing additional
instructions and having the jury deliberate further following the return of the inconsistent
verdicts. (Id. at p. 1071.) Like the situation presented in Mizel, the jury in the present
case found a dangerous condition existed, but the kind of injuries suffered were not
reasonably foreseeable.
              “A special verdict is inconsistent if there is no possibility of reconciling its
findings with each other. [Citation.]” (Singh v. Southland Stone U.S.A., Inc., supra, 186
Cal.App.4th at p. 357.) This determination requires consideration of the evidence
admitted at trial. Here, the danger posed by the steep slope adjacent to the highway and
the positioning of large trees on the slope is that a vehicle leaving the roadway will
overturn on the embankment and/or hit the large eucalyptus trees on the slope. When a
slope immediately adjacent to a highway has large trees on it and the slope is too severe
to permit a driver whose vehicle has left the highway to recover control, and when the
danger posed by the slope is that a vehicle leaving the highway will roll over and/or hit

                                              13
the large trees, an occupant’s injury or death is reasonably foreseeable.
              In support for its argument that the dangerous condition did not create a
reasonably foreseeable risk of the kind of injures present in this case, the Department
asserts the potential of future accidents is measured by determining whether there was a
high risk of a vehicle running off the road and in the 10 years preceding the present
incident, the rate of accidents in the same general location was one for every 88 million
vehicles driving past the crash site. The argument is misplaced. The number of accidents
in this area may very well be determinative of whether the Department acted reasonably
in failing to protect against the risk of such injuries, but not whether the kind of injuries
suffered in this case were reasonably foreseeable.
              A very small likelihood of an accident weighed against the cost of
preventing such an incident through the installation of a guardrail goes to the
reasonableness of the Department’s action or inaction. However, where the evidence
shows run-off-the-road incidents where cars have either rolled over on the steep slope or
hit large trees, a finding the Department has maintained the property in a dangerous
condition is inconsistent with a finding the kind of injuries suffered in an automobile
crash are not reasonably foreseeable. Given the danger posed by a severe slope and large
trees thereon, an answer to the question of whether the kind of injuries suffered were
reasonably foreseeable does not turn on the number of accidents occurring in the same
area.
              Indeed, the jury could not find the Department’s property was in a
dangerous condition unless it found the condition of the property created a “substantial
(as distinguished from minor, trivial or insignificant) risk of injury.” (Gov. Code, § 830,
subd. (a).) The “substantial . . . risk of injury” present in this case is the kind of injury
one finds when a vehicle rolls over or hits large trees at a high rate of speed. The injuries
and deaths sustained in this case are of the kind experience teaches result from
automobile accidents.

                                               14
              As noted above, the verdicts in this case would not have been inconsistent
had the passengers suffered cases of poison ivy as a result of the vehicle leaving the
roadway and going down the embankment. Neither would the verdicts be inconsistent if
the injuries suffered by the passengers as the result of the accident were being stung by a
bee or bitten by a loose dog while walking away from the accident. But where the
dangerous condition could result in vehicular accidents and the injuries are the type
suffered in a vehicle collision, as was the case here, special verdicts finding a dangerous
condition, but the injuries were not reasonably foreseeable, are inconsistent. As the
Legislative Committee comment to Government Code section 835 observed: “This
section requires the plaintiff to show that the injury was of a kind that was reasonably
foreseeable. Thus, a person landing an airplane on a public road might not be able to
recover for an injury resulting from striking a chuckhole, whereas a motorist might be
able to recover for the injury resulting from striking the same hazard; for it is reasonably
foreseeable that motorist will be injured by such a defect, but it is highly unlikely
airplanes will encounter the hazard. (Legis. Com. com., 32 West’s Ann. Gov. Code
(2012) foll. § 835, p. 99.) A fortiorari, injuries of the kind present in a vehicle roll over
or in a collision with a large tree at a high rate of speed, are more reasonably foreseeable
than physical injuries resulting from a vehicle hitting a chuckhole.
              This is not to say the jury could not have ultimately found in favor of the
Department in this matter. As the special verdict form makes evident, even after finding
a dangerous condition existed and the injuries were reasonably foreseeable, the
Department would still not be liable unless the jury also found (1) the Department knew
or should have known of the dangerous condition long enough to have protected against
it, (2) the Department acted unreasonably in failing to take sufficient steps to prevent
against the risk of injury, and (3) the dangerous condition was a substantial factor in
causing the deaths of Colin and Martinez, and the injury to Mendez. (See Gov. Code, §
835 [conditions of liability for dangerous property].) Unfortunately, the jury did not

                                              15
address these issues because it determined the injuries were not reasonably foreseeable, a
decision that was—given the facts of this case—inconsistent with its finding a dangerous
condition existed.
              The special verdicts are inconsistent. A new trial is required, albeit a
limited one. Orozco’s culpability was determined by the jury. The error in rendering
inconsistent verdicts in connection with the issue of the Department’s liability does not
affect the determination of Orozco’s culpability.
                                             III
                                      DISPOSITION
              The judgment in favor of the Department is reversed. The matter is
remanded for retrial against the Department. In all other respects, the judgment is
affirmed. Orozco shall recover his costs on appeal.




                                                    MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



THOMPSON, J.




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