Filed 9/26/13 Zuniga v. State of California 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


RICHARD ZUNIGA, JR.,
         Plaintiff and Appellant,
                                                                     A131971, A133553
v.
STATE OF CALIFORNIA,                                                 (Contra Costa County
                                                                     Super. Ct. No. C07-02078)
         Defendant and Respondent.


                                              I. INTRODUCTION
         While riding in a car driven by Guillermo Najera, 1 appellant Richard Zuniga Jr.
was seriously injured when Najera lost control of the car, drove off Highway 4, hit the
end of a guardrail, and went down an embankment. Appellant brought suit against the
State of California (Caltrans) for a dangerous condition of public property (Gov. Code,
§ 835) and Najera for negligence. After five weeks of trial, the trial judge granted
Caltrans‟ motion for nonsuit/directed verdict on the ground that there was no substantial
evidence of a dangerous condition. Appellant contends the trial court erred in ruling that
there was insufficient evidence of a dangerous condition for the issue to be submitted to
the jury. Appellant also contends that CalTrans was not entitled to nonsuit/directed
verdict on the basis of design immunity because the as-constructed guardrail failed to
conform to design plans and standards. In a separate appeal, appellant contests an order
granting Caltrans expert witness fees. Finding no error, we will affirm.


         1
             Guillermo Najera is not a party to this appeal.


                                                             1
                II. FACTUAL AND PROCEDURAL BACKGROUND
       On September 19, 2007, appellant filed a complaint in Contra Costa County
Superior Court alleging against Caltrans a cause of action for a dangerous condition of
public property pursuant to Government Code sections 830 and 835, and against
Guillermo Najera for negligence.
       Caltrans moved for summary judgment on the ground that the evidence did not
raise a triable issue of fact as to the existence of a dangerous condition. The court denied
the motion.
       A jury trial commenced on January 18, 2011.
       The following evidence was presented at trial:
The Accident
       On October 21, 2006, at around 2:20 a.m., appellant was a passenger in a car
driven by Najera that was involved in a solo crash on eastbound Highway 4, about 0.2
miles east of the McEwen Road underpass.
       Prior to the accident, appellant and Najera had been on Franklin Canyon Road
near the Port Costa/McEwen Road exit off Highway 4 in Martinez where people were
street racing. The police arrived at the scene and the cars scattered. Najera and Zuniga
returned to the same spot on Franklin Canyon Road. Najera raced once; Zuniga was not
in the car at the time. They both got in the car and left; Zuniga was in the passenger seat
wearing his seat belt.
       Najera was driving his black 2005 Mustang GT with a 300-horsepower V8 engine.
On the McEwen Road on-ramp to eastbound Highway 4, Najera dramatically increased
his speed, accelerating fast enough that each time he shifted gears appellant was
“slammed” into the back of the seat. The Mustang did not have its headlights on; only
the fog lights were illuminated.
       Benjamin Hoyles, who was 20 years old at the time, was at the street racing event
with appellant and Najera. Hoyles went up the on-ramp to Highway 4 ahead of Najera
and was traveling about 95 miles per hour in the number two lane. He saw the Mustang
in his driver‟s side mirror, catching up; the Mustang was in the number one lane. Hoyles‟


                                             2
passenger yelled, “Deer,” and Hoyles saw something go past his window. In his side
mirror, he saw the Mustang swerve and then go off the road.
       Appellant also saw the deer on the highway and yelled. Najera hit the brakes,
swerved to the right, crossed the number two lane, and struck the last 20 feet of a stretch
of guardrail, which bent and broke away upon impact as designed.
       The Mustang moved along the guardrail and then left the roadway at a nine-degree
angle, traveling across a flat, sandy dirt plateau adjacent to Highway 4. After smashing
through the guardrail, the Mustang was still traveling at a high rate of speed. The
accident reconstructionist for Caltrans, Ted Kobayashi, testified that, after leaving the
guardrail, the Mustang was traveling between 66 and 88 miles per hour. Appellant‟s
accident reconstructionist, Thomas Shelton, testified that the Mustang left the guardrail
traveling between 59 and 85 miles per hour.
       At the end of the plateau, more than 200 feet from where the Mustang hit the
guardrail, it encountered a slope that descended at a 5.5:1 ratio, meaning that it dropped
one foot in height for every five and a half feet of horizontal distance. At the hinge point,
where the elevation changed from flat to a down slope, the Mustang went airborne. The
Mustang struck the ground and then rolled over at least three times.
       California Highway Patrol (CHP) Officers Brian Elledge and Peter Arpaia
responded to the accident. The Mustang was at the bottom of the slope, approximately
174 feet beyond the hinge point. Neither officer detected any odor of alcohol from either
occupant.
       Appellant had a brief memory of being in the car after the accident, but did not
remember anything else until about two weeks later. On the night of the accident,
appellant told a paramedic that the vehicle was going about 110 miles per hour. He later
told a CHP officer he thought they were going over 100 miles per hour. He
acknowledged that he could not see the speedometer from where he was sitting; he based
his estimate on the fact that they were going fast.




                                              3
The Location
         The accident occurred on Highway 4, east of the McEwen Road on-ramp. The
highway in that area is flat and straight with no curves, and has no sight obstructions.
The highway was dry at the time of the accident. There were two eastbound lanes, each
12 feet wide, and an eight foot asphalt shoulder. The guardrail was immediately adjacent
to the asphalt shoulder. The speed limit was 65 miles per hour.
         The Mustang left the roadway and hit the eastern end of a stretch of guardrail.
That section of guardrail was 888 feet long and began just to the east of the McEwen
Road on-ramp (Location 1). To the east of that section of guardrail, there was a 211-foot
space with no guardrail, i.e., a gap, along the edge of the shoulder before another section
of guardrail, 302 feet long (Location 2), began. The off-road area adjacent to the gap was
flat terrain; the ground sloped away from the plateau in different spots, including a fire
road or trail with loose sandy soil toward the east. It was over this fire road or trail that
the Mustang launched.
         Officer Arpaia was assigned to investigate the accident. He found no skid marks
or other evidence on the roadway. The last 20 feet of Location 1 was bent back and
damaged. There was black paint on the damaged guardrail and the Mustang showed
guardrail markings on the passenger side from front to back. Tire marks in the dirt along
flat terrain adjacent to the gap in the guardrails led generally from the damaged guardrail
to a point where a slope began. At that point, the tire marks stopped. There was a large
gouge in the dirt some distance down the slope; there were no tire marks leading to the
gouge.
         The Mustang was located further down the slope, at the foot of an embankment.
There was evidence the vehicle had rolled over, including damage to the vehicle and
vehicle debris on the slope.
         Shelton, appellant‟s accident reconstructionist, concluded that the Mustang struck
the last 20 feet of the guardrail at Location 1 and left the roadway at a nine-degree angle.
It traversed the dirt plateau until it reached the point where the elevation changed from
relatively flat to a downgrade of about 18 percent. The Mustang went airborne, then


                                               4
struck the ground at the gouge mark, and then rolled over at least three times. Shelton
estimated the Mustang‟s speed when it left the roadway as between 59 and 85 miles per
hour.
Placement of the Guardrail
        The Caltrans Traffic Manual includes standards and design details for traffic
safety systems. The Traffic Manual provides that “[a]n area clear of fixed objects
adjacent to the roadway is desirable to provide a recovery zone for vehicles that have left
the traveled way.” A clear width of at least nine meters (29.5 feet) adjacent to freeways
and high-speed expressways (operating speeds greater than 70 km/h) permits about 80
percent of vehicles that leave the roadway out of control to recover. Such an area is
referred to as a clear recovery zone. A clear recovery zone should be kept free of hazards
such as fixed objects, which would include a guardrail. At the 211-foot gap between
Location 1 and Location 2, there is a clear width of up to 57.5 feet (17.5 meters).
Caltrans intended that this plateau with dirt and vegetation adjacent to the highway
function as a clear recovery zone.
        The Traffic Manual also addresses guardrail, a traffic safety system installed in
certain circumstances “to reduce the severity of run-off-road accidents . . . by redirecting
a vehicle away from embankment slopes or fixed objects and dissipating the energy of
the errant vehicle. However, guardrail will reduce accident severity only for those
conditions where striking the guardrail is less severe than going down an embankment or
striking a fixed object. Guardrail should only be installed where it is clear that accident
severity will be reduced.”
        The decision whether to install guardrail is discretionary. For embankment
guardrail, the decision is based on a consideration of (1) accident history and potential;
and (2) the Equal Severity Curve, which represents the relative severity of going off the
embankment versus hitting the guardrail. An evaluation of the potential frequency of
accidents at the location is based on roadway alignment, the volume of traffic, the size of
the roadside recovery area, and climatic conditions. Figure 7-1 in the Traffic Manual
shows the Equal Severity Curve, a line that represents combinations of embankment


                                              5
height and slope that result in accident severities generally equal to average guardrail
accident severity. In general, accident severity will be less if guardrail is used on
embankments that plot substantially above the line. The Equal Severity Curve also
illustrates that for slopes with a horizontal to vertical ratio of greater than 3:1, i.e., that
descend one foot vertically for every three or more feet horizontally, hitting the guardrail
is always considered more severe. Phrased another way, embankment guardrail is not
indicated for embankment flatter than 3:1.
       In August 1999, the CHP notified Caltrans that there had been accidents involving
vehicles running off the road and over embankments in the area of Highway 4 east of
McEwen Road. Lynn Miller, a senior engineer in the Caltrans traffic branch, assigned
traffic engineer Harold Barnell to investigate. Barnell reviewed the accident reports and
found that, between 1994 and 1998, over the 2.3 mile stretch of eastbound Highway 4
from post-mile 5.37 to 7.67, there had been 18 accidents that resulted in nine injuries and
two fatalities. Barnell inspected the relevant area of Highway 4, and recommended
placing four sections of guardrail based on his opinion that the embankment slopes at
these locations were hazardous.
       The first section of guardrail, Location 1, was designed to be 272.27 meters long;
as constructed, it measured 270.66 meters (888 feet). The second section, Location 2,
was designed to be 93.4 meters; as constructed it measured 92.05 meters (302 feet). The
gap in between as constructed measured 211 feet.
       Following construction of the guardrail project in 2000, more than 50 million
vehicles traveled eastbound Highway 4 past the 211-foot clear recovery zone between the
guardrails without a single over-embankment accident prior to the accident involving
appellant.
       At trial, appellant compared a survey of the accident site to the design plans to
show that the as-constructed guardrail differed from the design plans in two respects.
The survey included a station whose zero point was a call-box. First, according to
appellant, as constructed, the Location 2 guardrail commenced 73.5 feet further east than
was indicated on the plans. Second, because Location 2 was over 70 feet further east, the


                                                6
gap between Locations 1 and 2 was over 70 feet longer than designed. Appellant
presented evidence that, as designed, the gap should have been approximately 135 feet,
not 211 feet.
       Caltrans expert Kenneth Berner measured the height and slope of the embankment
at four points. He concluded that, moving eastward along Location 2, the equal severity
curve criteria for placement of guardrail were first met at a point located 65.5 feet east of
the beginning of Location 2. Berner opined that, based on equal severity curve analysis,
the Location 1 and Location 2 guardrail were located appropriately.
       Appellant‟s expert, Maurice Bronstad, agreed that the equal severity curve is one
of the criteria for placing guardrail, but he testified that the length of guardrail required is
determined by traffic volume and departure angles, i.e., the angles at which vehicles
depart the roadway or “runoffs.” Bronstad did equal severity curve and runoff analyses,
and determined that, for vehicles leaving the roadway at an angle of nine degrees or
more, there were a number of possible paths through the 211-foot gap that would lead the
vehicle into nontraversable area. Bronstad opined that the clear recovery zone was not
safe because it allowed access to nontraversable slope behind the guardrail. He
concluded that Location 2 should have been extended an additional 90 feet to the west,
which would have reduced the gap to 121 feet. Based on the statement in the Traffic
Manual that “[g]aps of less than 60 m[eters] between guardrail installations . . . should be
avoided,” Bronstad further opined that, since the gap should have been less than 60
meters, it should have been closed with continuous guardrail.
Proceedings Following the Close of Evidence
       At the close of the evidence, the court considered Caltrans‟ motion for nonsuit
and/or directed verdict pursuant to Code of Civil Procedure section 630, subdivision (a).
The trial court articulated its understanding of the pertinent inquiry: that, in order to
establish a dangerous condition, a plaintiff must show a substantial risk of injury; a
“remote possibility of harm” does not constitute a substantial risk; and evidence of an
absence of similar accidents “constitutes a valid basis for the court to find that the
property was not in a dangerous condition . . . .”


                                               7
       The court observed that it was undisputed that 50 million eastbound vehicles had
passed the accident location in the six years from the time the guardrail was installed in
2000 until the subject accident occurred in 2006, and yet there had been no other
accidents at that location. It concluded that, under the case law, because of the absence
of other accidents, “the only conclusion reasonable men could draw is that the specific
location where this accident occurred did not constitute a dangerous condition for drivers
exercising due care.” “Injury to one person out of 50 million,” it stated, “does not
constitute a substantial risk to foreseeable users.”
       The court further concluded that appellant‟s expert‟s testimony was insufficient to
create an issue of fact. Accordingly, the court granted the motion for nonsuit/directed
verdict on the ground that appellant had failed to present sufficient evidence of a
dangerous condition.
       On May 10, 2011, appellant filed a timely notice of appeal from the order granting
the motion and from the judgment, case No. A131971.
       On September 6, 2011, the trial court entered a costs order granting Caltrans
expert witness fees of $125,504.88. On October 21, 2011, appellant filed a separate
notice of appeal challenging the costs order, case No. A133553.
       On February 8, 2012, this court consolidated the two appeals.
                                    III. DISCUSSION
A.     Standard of Review.
       An appellate court reviews both a directed verdict and a judgment of nonsuit de
novo, applying the same standards that govern the trial court. (Magic Kitchen LLC v.
Good Things International Ltd. (2007) 153 Cal.App.4th 1144, 1154 [directed verdict];
Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1541-1542 (Saunders) [nonsuit].) This
requires that we view the evidence in the light most favorable to appellant, and resolve all
conflicts and draw all legitimate inferences in appellant‟s favor. (Woods v. Union Pacific
Railroad Co. (2008) 162 Cal.App.4th 571, 576; Saunders, supra, 42 Cal.App.4th at p.
1541.) “If there is substantial evidence to support [appellant‟s] claim, and if the state of



                                              8
the law also supports that claim, we must reverse the judgment. [Citation.]” (Margolin
v. Shemaria (2000) 85 Cal.App.4th 891, 895 (Margolin).)
B.     Dangerous Condition of Public Property.
       1.       Legal Principles.
       A public entity in California is not liable in tort except as specifically provided by
statute. (Gov. Code, § 8152; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820,
829 (Brown).)
       Section 835 sets forth the exclusive conditions under which a public entity may be
liable for injuries caused by a dangerous condition of public property. (Brown, supra, 4
Cal.4th at p. 829.) It provides: “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.”
       A “dangerous condition” is defined 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.” (§ 830, subd. (a); Bonanno v. Central
Contra Costa Transit Authority (2003) 30 Cal.4th 139, 147 (Bonanno).) “Section 830.2
provides a qualification to the definition of a dangerous condition of public property, by
stating: „A condition is not a dangerous condition within the meaning of this chapter if
the trial or appellate court, viewing the evidence most favorably to the plaintiff,

       2
           All further unspecified statutory references are to the Government Code.


                                              9
determines as a matter of law that the risk created by the condition was of such a minor,
trivial or insignificant nature in view of the surrounding circumstances that no reasonable
person would conclude that the condition created a substantial risk of injury when such
property or adjacent property was used with due care in a manner in which it was
reasonably foreseeable that it would be used.‟ ” (Sambrano v. City of San Diego (2001)
94 Cal.App.4th 225, 233-234 (Sambrano), italics omitted.)
       The existence of a dangerous condition is usually a question of fact, but the issue
may be resolved as a matter of law if reasonable minds could come to only one
conclusion. (§ 830.2; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133;
Bonanno, supra, 30 Cal.4th at p. 148; City of San Diego v. Superior Court (2006) 137
Cal.App.4th 21, 28.)
       2.     Analysis.
       Appellant‟s theory at trial was that “a dangerous condition existed because (a) the
slope the Mustang went over posed a substantial risk of injury to persons using the
roadway with due care and (b) the gap in the guardrail permitted the Mustang to gain
access [to] that slope.” The trial court granted a directed verdict on the basis that the
evidence established there was no dangerous condition as a matter of law. Appellant‟s
task on appeal is to identify substantial evidence in the record to support the claim that
the accident location constituted a dangerous condition, and to further demonstrate that
the state of the law supports that claim. (Margolin, supra, 85 Cal.App.4th at p. 895;
Salas v. California Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1067-1070.)
       “Whether the condition of property posed a substantial risk of injury to foreseeable
users exercising due care is an objective standard and is measured by the risk posed to an
ordinary foreseeable user.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 992.)
The substantiality of the risk addresses the likelihood that an injury will occur, not the
extent of any such injury. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122,
130, fn. 5 (Fredette).) A remote possibility of harm is not a substantial risk. (Ibid.)
       “Property is not „dangerous‟ within the meaning of the statutory scheme if the
property is safe when used with due care and the risk of harm is created only when


                                             10
foreseeable users fail to exercise due care.” (Brenner v. City of El Cajon (2003) 113
Cal.App.4th 434, 439.) “[A] public entity is only required to maintain its property in a
way that is safe for „careful use.‟ [Citation.] „Although public entities may be held liable
for injuries occurring to reasonably foreseeable users of . . . property . . . liability may
ensue only if the property creates a substantial risk of injury when it is used with due
care.‟ [Citation.] After all, „any property can be dangerous if used in a sufficiently
abnormal manner.‟ [Citation.]” (Milligan v. Golden Gate Bridge Highway and
Transportation Dist. (2004) 120 Cal.App.4th 1, 6-7; Schonfeldt v. State of California
(1998) 61 Cal.App.4th 1462, 1466 [“ „[A] public entity is only required to provide roads
that are safe for reasonably foreseeable careful use.‟ [Citations.]”].)
       We consider a number of factors in determining whether, as a matter of law, a
condition creates only a minor risk of harm, as opposed to a substantial risk, under
section 830.2. “The court should consider both the physical description of the condition,
and „whether there existed any circumstances surrounding the accident which might have
rendered the defect more dangerous than its mere abstract [description] would indicate.‟
[Citation.] Where appropriate, the court should consider not only the intrinsic nature and
quality of the condition, but also other factors such as the time and place of the
occurrence. [Citation.] „Furthermore, the court should see if there is any evidence that
other persons have been injured on this same defect.‟ [(Fielder v. City of Glendale
(1977) 71 Cal.App.3d 719, 734 (Fielder).)]” (Sambrano, supra, 94 Cal.App.4th at p.
234.) Whether there have been similar accidents at the site is relevant to determining
whether the asserted dangerous condition presents a substantial risk of harm. (Sambrano
v. City of San Diego, supra, 94 Cal.App.4th at p. 243; McKray v. State of California
(1977) 74 Cal.App.3d 59, 62-63.)
       Viewing the evidence in the light most favorable to appellant, including (1) the
various possible reasons why a vehicle might leave the roadway, (2) crediting appellant‟s
contention at oral argument that, depending on the circumstances, driving in excess of the
speed limit is not always or necessarily using the roadway without due care, and (3) that
the slope was variously described as “a steep downgrade” and a “steep slope” by


                                              11
Sergeant Arpaia and a “steep embankment” by Joel Hornstein, a paramedic who
responded to the scene of the accident. We nevertheless conclude, as a matter of law,
that the slope down which the Mustang traveled and the gap in the guardrail through
which the Mustang accessed that slope did not present a substantial risk of harm when the
adjacent stretch of Highway 4 was used with due care.
       The Mustang hit the last 20 feet of the Location 1 guardrail, traveled into the clear
recovery zone, traversed the length of the gap, i.e., more than 200 feet, then continued
past the clear recovery zone, behind the Location 2 guardrail, and went airborne at the
hinge point of a long slope that descended at a 5.5:1 ratio. As we have stated, this portion
of Highway 4 is flat and straight with no curves, and has no sight obstructions. The
guardrails were installed to prevent vehicles from running off the road and encountering
embankment that would likely cause a more severe accident than would result from
hitting the guardrail itself. The gap in the guardrail provides access to a clear recovery
zone that was flat, sandy dirt terrain, not sloping, and exceeded by up to 28 feet the
recommended minimum width of 29.5 feet, i.e., it was up to twice as wide as required by
the Traffic Manual. The evidence was uncontradicted that a clear recovery zone of the
minimum width allows about 80 percent of vehicles leaving the roadway to recover.
Using the equal severity curve, based on the relative severity of going down the slope
traveled by the Mustang (or any slope that descends at a ratio greater than 3:1) versus
hitting guardrail, the Traffic Manual indicates that striking the guardrail would be more
severe. Thus, guardrail is not indicated for this particular slope. Caltrans also presented
uncontradicted evidence that, in the six years after construction of the guardrail project in
2000, more than 50 million vehicles traveled eastbound Highway 4 past the Location 1
and Location 1 guardrails, the 211-foot gap between the guardrails, and the clear
recovery zone without a single accident prior to the accident involving appellant. Based
on the physical characteristics of the roadway and adjacent area, the absence of
aggravating factors that could have made the condition more dangerous, and the complete
absence of other accidents since construction of the guardrail, we find no dangerous
condition as a matter of law.


                                             12
       Appellant‟s first argument, which he presents at length in his opening brief, is one
about which the parties do not disagree: namely, that expert opinion evidence may
constitute substantial evidence of a dangerous condition. However, we disagree with
appellant that the trial court erroneously ruled to the contrary, i.e., that expert opinion
testimony categorically cannot constitute substantial evidence. The transcript of the
ruling makes clear the court‟s reasoning that the existence of expert testimony, by itself,
does not necessarily create a triable issue of fact, independent of its value and the
existence of supporting facts.
       The consideration of expert opinion evidence in Song X. Sun v. City of Oakland
(2008) 166 Cal.App.4th 1177 (Sun), by our colleagues in Division One of this court is
instructive. In Sun, the appellants‟ expert witness asserted that the city created a
dangerous condition at the intersection where the decedent was killed. (Id. at p. 1188.)
The court observed that “expert opinions on whether a given condition constitutes a
dangerous condition of public property are not determinative: „[T]he fact that a witness
can be found to opine that such a condition constitutes a significant risk and a dangerous
condition does not eliminate this court‟s statutory task, pursuant to [Government Code]
section 830.2, of independently evaluating the circumstances.‟ (Davis v. City of
Pasadena (1996) 42 Cal.App.4th 701, 705.)” (Sun, supra, 166 Cal.App.4th at p. 1189.)
The court went on to evaluate the expert‟s opinion, including consideration of his
reasoning and factual support, and found it did not rise to the level of substantial
evidence. (Ibid.)
       Appellant contends that Bronstad‟s testimony, based on his analyses, constituted
sufficient evidence of a dangerous condition and that the trial court erred in ruling that it
did not. Specifically, appellant relies on Bronstad‟s testimony that the gap in the
guardrail permitted a vehicle exiting the roadway to gain access to hazardous area, that
Location 2 should have been extended an additional 90 feet to the west, which would
have reduced the gap‟s length to less than 60 meters, and that consequently the gap
should have been closed. Further, Bronstad testified that the guardrail failed to comply
with the Caltrans Traffic Manual.


                                              13
       The sum-total of appellant‟s argument on this point in his opening brief is citation
to a practice guide and two cases, Cameron v. State of California (1972) 7 Cal.3d 318
(Cameron) and Curreri v. City and County of San Francisco (1968) 262 Cal.App.2d 603
(Curreri). In Cameron, the plaintiffs were injured when the car in which they were
riding went off the road and crashed after encountering a sharp “S” curve on a steep
downgrade on Highway 9 in Santa Cruz County. The Supreme Court reversed a nonsuit,
finding that the testimony of a civil engineer that the superelevation (banking) on the
curve was not consistent, but changed abruptly, and that the abrupt change would tend to
shift the weight of the car so as to lift one wheel off the ground and make the car roll was
“sufficient evidence to uphold a jury finding that the uneven superelevation in the „S‟
curve without warning signs constituted a dangerous condition.” (Cameron, supra, 7
Cal.3d at pp. 323-324.) In Curreri, a driver attempting to pull out of a right-angle
parking spot on a steep hill stepped on the accelerator instead of the brake, causing the
car to move forward over the two- to three-inch curb and the sidewalk and hit the
plaintiff, who was sitting on the front steps of a flat. (262 Cal.App.2d at p. 605.) The
court concluded that the standard specification for six-inch curb height was a safety
requirement and one factor among many circumstances that together created a dangerous
parking situation in San Francisco. Here, based on our independent evaluation of the
circumstances, there is no evidence that the gap and the slope presented a substantial risk
of injury, as opposed to a minor or insignificant risk, to a reasonably careful motorist.
       Moreover, Bronstad‟s opinion that the guardrails were not constructed in
compliance with the Traffic Manual does not constitute substantial evidence of a
dangerous condition because the evidence “must establish a physical deficiency in the
property itself” that creates a substantial risk of injury when used with due care. (Cerna
v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347-1348; Mixon v. State of California
(2012) 207 Cal.App.4th 124, 131.) Although evidence that applicable safety standards
were not followed may be relevant in an appropriate case on the question of a dangerous
condition (Van Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar



                                             14
2011) § 12.20E, p. 888.1), this is not such a case because of the absence of evidence that
the asserted dangerous condition posed a substantial risk.
       Appellant also cites, as substantial evidence of a dangerous condition, witness
descriptions of the slope the Mustang went down as “steep;” witness testimony that they
could not drive down that slope; and the fact that the Mustang went airborne. Again,
however, none of this evidence establishes a substantial risk of injury to members of the
public exercising due care, particularly bearing in mind the speed of the Mustang when
appellant spotted the deer.3 There simply is no evidence of the probability or likelihood
of a motorist exercising due care running off the road and into the gap and being unable
to stop or sufficiently slow down in the clear recovery zone.
       Appellant contends it was “undisputed that a person driving reasonably might
nevertheless go off the roadway at freeway speed due to a mechanical problem or to
avoid an animal, another vehicle, or an object dropped onto the roadway.” Appellant also
points out evidence that the Mustang suffered a serious rollover accident despite leaving
the roadway at a speed possibly as low as 59 miles per hour. We acknowledge that,
although it is possible for a vehicle to go off the highway for any of the reasons appellant
suggests, travel through the gap in the guardrail, and continue across the clear recovery
zone and beyond, it is an unlikely occurrence and does not amount to a substantial risk of
harm. A holding that this possibility rendered the gap dangerous would amount to
requiring Caltrans to insure against injuries arising from trivial defects or remote risks on
state roadways, contrary to the public policy underlying the Tort Claims Act (§ 810 et
seq.) (See Fielder, supra, 71 Cal.App.3d at p. 734.) In Curreri, supra, 262 Cal.App.2d
at page 610, the court recognized that the city “has no duty to provide curbs or other
protective features throughout the City which would in all cases prevent negligent


       3
        We note that a plaintiff need not prove the property was actually being used with
due care at the time of the accident and that a third party‟s negligence will not relieve a
public entity of liability for a dangerous condition of public property. (See, e.g., Ducey v.
Argo Sales Co. (1979) 25 Cal.3d 707, 718-719; Huffman v. City of Poway, supra, 84
Cal.App.4th at p. 992; Fredette, supra, 187 Cal.App.3d at p. 131.)


                                             15
motorists from driving from the street onto the sidewalk and damaging property or
injuring persons.” However, the court acknowledged that a combination of
circumstances can exist such that a public entity has a duty to take greater protective
measures. (Curreri, supra, 262 Cal.App.2d at p. 611.) There is no such combination of
circumstances here.
       Finally, appellant contends that the evidence of accidents in the 2.3 mile vicinity
of the accident site prior to installation of the guardrail, in addition to the evidence of
guardrail strikes after its installation, viewed in the light most favorable to appellant,
supports the existence of a dangerous condition. We disagree. Appellant cites Hurley v.
County of Sonoma (1984) 158 Cal.App.3d 281, 286, for the proposition that evidence of
similar accidents in the general vicinity can support the existence of a dangerous
condition. However, the court in Hurley was stating the general rule that other accidents
in the vicinity may constitute such evidence if they occurred “under the same or similar
circumstances.” (Id. at p. 286.) Here, there is no evidence that the prior accidents
involved similar circumstances or were otherwise sufficiently similar. Moreover, the
physical condition of the general vicinity here changed when the guardrail was installed
in 2000 to address the run-off-road accidents brought to Caltrans‟ attention by the CHP.
The only reasonable inference that can be drawn from the absence of accidents after its
installation is that the guardrail was effective in improving the safety of this stretch of
Highway 4. The guardrail strikes further support the inference that the guardrail was
functioning as intended. The absence of prior similar accidents after installation of the
guardrail, especially in light of traffic volume of 50 million vehicles, is highly probative
of the lack of dangerousness.
       In his reply brief, appellant expands on his arguments that the Location 2 guardrail
should have been anywhere from 20 to 90 feet longer and that the gap should have been
closed. Bronstad testified to the effect that “[i]f a vehicle can get behind the guardrail to
the hazardous embankment, . . . „then you haven‟t made the guardrail long enough.‟ ”
The parties argue points such as the length of guardrail that should precede an area of
concern behind the guardrail; whether certain provisions of the Traffic Manual apply to


                                              16
embankment guardrail or fixed object guardrail or both; and whether the Traffic Manual
requires that departure angles be taken into account in determining the appropriate length
of guardrail. None of these arguments has bearing on the point we find dispositive: the
absence of any evidence that the risk of injury posed by the gap/slope was substantial
within the meaning of the statute.
C.     Design Immunity.
       In light of our conclusion that the gap/slope did not constitute a dangerous
condition of public property, we need not address the affirmative defense of design
immunity.
D.     The Costs Award.
       The award of costs to Caltrans was dependent on the outcome of the dangerous
condition issue. In light of our conclusion that the gap/slope was not a dangerous
condition as a matter of law, we will not disturb the costs award.
                                        IV. DISPOSITION
       The judgment and the order awarding costs are affirmed.




                                                 _________________________
                                                 Haerle, J.


We concur:


_________________________
Kline, P.J.


_________________________
Richman, J.




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