*1 tion whether defendant’s initial determination to use the glass erroneous; the affidavits are sufficient to raise a question factual whether knowingly defendant negligent- and ly premises maintained a condition on the which, use, had repeatedly demonstrated itself as hazardous to the students. grant public Section 830.6 does not immunity entities for duty breach maintain, of the since there was evidence warranting before the trial finding court of breach of that duty, improper grant it was motion summary judg- ground ment on the that the action was barred 830.6. summary judgment should be reversed.
Tobriner, J., concurred. Appellant’s petition rehearing for a September was denied J.,* Schauer, Draper 1967. pro tem.,† J. place sat in Mosk, J., Sullivan, J., who deemed disquali themselves Peters, J., fied. and Tobriner, J., opinion were of the that the petition granted. should be July No. 7799. 28, 1967.] Bank.
[Sac. BECKER, Plaintiff, FRANK Cross-defendant Respond- ent, v. MARGARET JOHNSTON, JEAN Defendant, Cross-complainant and Appellant; COUNTY OF SAC- RAMENTO, Respondent. Cross-defendant and Supreme 'sitting * Retired Associate assign Justice of the Court under ment the Chairman of the Judicial Council. † Assigned by the Chairman of the Judicial Council. *2 Hoffman, Rust C. Rust Ellis Horvitz for & David and J. Cross-complainant Appellant. Defendant., for McGregor, Bullen & Erich and Michael M. McICone Plaintiff, Respondent. Cross-defendant McLaughlin, Russell, McCarthy & ICaelin Jerome M. McLaughlin Respondent. Cross-defendant
Harry Fenton, F. S. Robert Carlson and Kenneth G. Nellis as Amici Curiae on behalf of Respondent. Cross-defendant and *3 BURKE, J. personal injury This action out arose of a collision of automobiles at an intersection. Defendant and cross-complainant Mrs. appeals Johnston judgment from a nonsuit in favor of cross-defendants Frank Becker County of Sacramento.1 We have concluded county that the successfully has plan established the design immunity found in 830.6,2 section Government Code that the trial court correctly jury withheld the issue of Becker’s lia- bility, judgment and that the should be affirmed as to both cross-defendants. properly granted only The nonsuit was if, disregard
ing conflicting giving cross-complainant’s evidence and evi all legally dence the value it to which is entitled indulging every legitimate may which inference be drawn in her favor, a result is' determination that is there no plaintiffs, Becker, against 1 Theclaim of Mr. and Mrs. defendant was settled before trial. 2 All section references are to Government Code unless otherwise stated. substantiality support of sufficient evidence a verdict her (Reuther Viall (1965) favor. 62 Cal.2d 474-475 v. [3] [42 Cal.Rptr. 456, 792], cited.) P.2d and cases there night The here involved on a in March collision occurred County Boulevard, 1963 in the on Auburn Sacramento highway, two-lane near a intersection which Auburn forms Sylvan Appended diagram is a Road. (a photostat cross-complainant’s 2). Exh. The car reduced Auburn, by Johnston, driven Mrs. crossed into southbound on Sylvan and col- the northbound lane at the intersection at traveling ear, lided Becker which was north on with the Auburn. county, As against the Mrs. Johnston contends proximately condition which
intersection was injuries. Act to her The 1963 Tort Claims set contributed applies. (Cabell v. forth in the Code State Government 34].) p. Cal.Rptr. 476, 430 P.2d California, ante, 150 [60 liability of a specifies prerequisites to Section condition of public entity injury caused urges has made property. county that Mrs. Johnston its The prerequisites. also relies showing meeting such no provided by 830.6. upon immunity plan California, supra.) v. (See 2 of Cabell State fn. through gener- highway which runs is a Auburn Boulevard However, proceeds the south Auburn ally as north to south. (southwesterly) approaches it right curves Syl- path. in a to north Road, cuts into Auburn south sign stop at this intersec- traffic is controlled van Road right the Y. At arm of comprises the stem tion. Auburn direction, with runs in north-south stem At the inter- being the intersection. stem north of base of the right in a south- section, gradual curve Auburn to left arm right arm of the Y. The westerly direction creates per There was speed 40 miles hour. Sylvan. The limit was as it traffic on Auburn stop sign regulating northbound no stop sign regulating entered nor was there proceeded Auburn as it entered and traffic on southbound such through intersection, regardless of whether continued on Auburn or right and remained curved to lane of Auburn into across the northbound a Sylvan. line *4 regu- stop sign was that only at the intersection The Sylvan. lating traffic on northbound facing highway signs two standard there were On Auburn north of the sign, first about 750 feet traffic. The southbound
167 curving yellow black arrow to intersection, ivas with a right. right, indicating curved that Auburn to The thus intersection, approximately other, 350 feet north of the ivas a sign indicating Auburn had a intersection. “notice- super-elevation right; i.e., in its able” bank curve to the higher so side Auburn ivas banked that its east would be than yellow its west side. A double line marked the center of except 90 Auburn for a feet Auburn distance of where inter- Sylvan. sects with night dark, Avas clear, visibility Avas the weather good. stationary was no at There illumination the inter- HoAvever, investigated a traffic officer who
section. the accident beginning testified that “at of the curve” a southbound visibility point driver had unobstructed of Auburn to a 400 to halfway curve, least around the distance of feet. midnight cross-complainant At about Mrs. Johnston was driving per south on Auburn to 40 at 35 miles hour in the direction of the intersection. She testified that she was not area, familiar with this had before, never been there and was not aware that Auburn right curved to the and that if she continued drive to ahead she Avouldenter Road. Her intention was continue southbound on Auburn go rather Sylvan. than on did noticing She not recall any specific prior signs entering and she did place not know that the at which the accident occurred was in fact an apparent intersection. It thus she failed to observe or take sign notice of either the curve north of Y sign interesection or the some feet therefrom. Immediately before the Mrs. accident first Johnston saw a directly set oncoming headlights on the other side of the road. At headlights about same she saAV time on what proved approaching Mr. to be Becker’s car her from what appeared right angle. kept to be a She his car in view at all times, thought approaching it from a side road stop. Avould It did not. further She testified that she did not see cross prior her car line at double that if collision and had driven she her car across double line, However, she would haveseen it. above, as noted there marking was a line except double of Auburn, center for a (90 short feet) distance Sylvan. Avhere intersected with (See diagram.) the attached Cross-defendant driving Becker Avas north speed around at a the curve 35 to 40 per miles hour. He *5 " - was familiar with the road and with the He intersection. approached testified as he the 'intersection-he saw Mrs. headlights turning Johnston’s turned no blinkers were on; and assumed that she he would continue around the curve proceed than rather into Eoad. He crossing unable to tell that her vehicle the north- bound Auburn until from the lane of he was about feet point impact, at which time he was unable to avoid the collision. first He further testified that he saw Mrs. John- ston’s car across come into the northbound lane the area of interrupted; intersection where the double line is he was then point diagram. at marked as B 3 the attached applied replied When point, asked if he his brakes : he *6 “Well, Just got up not there. as I a little farther I saw she me, was coming right applied across in of then T front ’’ brakes. by The intersection was constructed of Cali- State 1957, fornia in Until 1929. when the Sacramento-Roseville Freeway opened, Boulevard, including was Auburn the curve intersection, and was Highways maintained 40 state 99E, and highway which the main between Sacramento through and carried Roseville traffic which was thereafter freeway. highway essentially diverted to the The remained in physical period during same condition that After of time. freeway opened relinquished the state control of the highway county. county’s engineer, The traffic called Mrs. Johnston as a Procedure, witness under section 2055 Civil Code of testified hypothetical that in a case a with intersection the hazard of example head-on is a classic of engineering collisions bad practice, generally speaking is in However, warnings. respect particu- the absence of with to a depends lar physical intersection on condition and traffic volume. In intersection of Auburn Boulevard- Sylvan Road the “area for head-on collisions existed” “channeling” intersection was such collisions in “the ” ‘channeling,’ broad term determining sense but it in whether to maintain the same condition “the traffic something volume is have we to take into considera- tion.” average A traffic count3 taken in 1961 showed an purposes impor of a 3 One of the traffic count “is to establish the more on, general tant roads that have be worked to establish the routine of throughout County, compute rates, type traffic tiling.’’ accident this occurred, when March this accident some there were 170 day per year)
11,800 (i.e., four million vehicles a some just traveling Sylvan, during but north of only eight period through 1962 four-year there were only accidents at three were head-on history did study of this the witness not collisions. From change; warranted conclude the intersection was past history it was opinion conditions and his “Under the ’' engineering operating satisfactorily good manner [and] (when place). took here involved the collision agreed confused witness motorists could become some however, intersection, especially night; entering when than “more warning signs to a minimum as the use of are held Further, some motor- motorist. several” tends to confuse the lights.4 through red signs and go through stop ists some with the engineer was familiar consulting A traffic who particularly design, type “this testified that intersection conflicting that result movements because of the nature of the good engineer- two-way Y is not considered to be ... an my opinion, “in maintain intersection ing,” and that period 1963 “would not over” the engineering design at- engineering. . . good . [G]ood completely, and tempts conflicts these to either eliminate about, talking . . freeways, which are . would we be on great intersections minimizing the conflict at effect, minimizing eliminating head-on by—in one: number opinion expressed the further witness collisions.” The day through going thousand cars you “If had eleven engineer you if no ... took you, as a intersection allowing ... a hazardous intersection . . . would be action night “and operate”; that hazards increase at continue to *7 judge it is most difficult to particularly type because approach- everything you distances, speed and else when are distinguished coming right from in at as ing a vehicle danger of head-on the collisions could be angles”; that percent by constructing percent 90 a traffic by 70 to reduced $5,000. cost less than island at an estimated county supervision 1,900 the of the road under miles of engineer’s office. involved, 4 following in connection with an im accident here the requested by property program provement proceeding, district owners an assessment changed was and the head-on collision area However, 830.5, (b), provides that “The section subdivision eliminated. fact injury against protect an to that action was taken after occurred public property public property not evidence that condition of a ’ ’ injury. added.) dangerous (Italics condition at the time of the a evidence is sufficient view the above-related our support jury finding has shown a that Mrs. Johnston dangerous 835 and condition under section existence of a (1) requires that she establish related sections.5 Section (2) proxi public property which dangerous condition of (3) a mately injury and which created contributed her injury, (4) that either reasonably foreseeable risk of such public (a) negligent wrongful act or omission of or employment employee scope created within of his dangerous county had condition, (b) notice or time dangerous under 835.26 sufficient condition section Al prior protective injury measures. to the to have taken “dangerous though (a), defines subdivision property that creates a subtan condition” as “a condition of insignificant) distinguished minor, trivial or (as tial adjacent property is used injury propety risk when such or reasonably it is foresee due in a manner care is liable entity provided by statute, public 5 Section 835: “Except injury dangerous if plaintiff of its property caused condition dangerous at the time that was in a establishes the property dangerous injury, injury caused proximately dangerous reasonably foreseeable condition created a condition, injury risk that either: incurred, of the kind of which was ‘‘ (a) negligent wrongful A of an employee or act or omission dangerous created the entity within of his public scope employment condition; “ (b) danger- notice of the had or constructive public entity actual injury to time prior ous condition under Section 835.2 a sufficient against dangerous condition.’’ have taken measures protect “ (a) 6 Section 835.2: A dangerous public entity had actual notice of a meaning (b) condition within the of subdivision of Section if it had knowledge actual of the existence of the condition and knew or should dangerous have known of its ‘‘ (b) A character. entity had public constructive notice of a condi- meaning (b) tion within the of subdivision of Section 835 if only establishes plaintiff the condition had existed for such a period time and was of such an obvious nature the public entity, due exercise of should care, have discovered danger- the condition and its ous 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 charac- ter would have been discovered by an inspection system that was reason- (considering ably adequate the practicability and cost of inspection weighed against magnitude the likelihood and danger of the potential give rise) which failure would inspect to inform the public entity whether the property was safe for the use or uses for which the public used or entity that intended others to use the public property and for uses the public entity making actually knew others were of the public adjacent property property. “ (2) Whether the public entity maintained and operated such an in- ’ ’ system spection with due care and did discover the condition. *8 172 2)7 (see used,” we believe that will also able that be § 830. person conclude intersection could reasonable injury using risk one substantial of involved created a here points out, As of Mrs. she it in manner Johnston. interrupted where Au curving on Auburn was double line diagram Sylvan, attached of and the intersected
burn. expert testimony coupled with the of the basic the intersection support appear design, sufficient verdict hazards of the (See City Cudahy (1963) 60 favoring Teall v. Cal.2d her. 830.8.)8 Cal.Rptr. 869, 493]; 830.4, 386 P.2d see also 431 §§ [34 upon plan however, county relies or noted, As (See fn. design 830.6. Ca immunity set forth section California, 830.6 supra.) declares bell v. State Section injury public entity for an pertinent part that a is not liable public construction by plan or of a caused public by approved in advance property has been authority, exercising discretionary if the employee body or any substan there is appellate court determines trial or public upon which a reasonable the basis of tial evidence approved plan adopted or body have or employee could or judged is as of the design. The reasonableness approval. (Cabell v. State adoption Cali or time of the fornia, supra.) plans copy in this case- contains The record by the Recorder involved, recorded here Map Highway 3. Such County in State Book of Sacramento their, face, July T927, they plans that on were indicate (Section dangerous within A is not a condition condition" 830..2:.1/ viewing "the. meaning'.of evi court, if the trial" or. appellate, "chapter this . matter of law that ás a most determines favorably plaintiff, dence insig trivial or minor,' of such a the condition was the, .by risk created surrounding that no reason circumstances nificant nature view of the a substantial risk the condition created able person would.conclude adjacent injury used with due property such or property of care when it would foreseeable reasonably in which it was a manner ” used. be. 830.4: “A condition is not a within the 8 Section regula meaning failure to provide of this because of the chapter merely signs, signs, right-of-way signals, yield speed control stop, tory ¡traffic signs, roadway- or distinctive Code, as described' Vehicle by restriction the. markings Vehicle Code.”' in Section 21460 of the described as. . nor entity- employee Section 830.8: “Neither a public public a. an,injury under the failure provide liable chapter foi: caused - signs; markings- signals,. in the warning or devices traffic! or described Nothing in public, entity -public Vehicle -this, Code.- exonerates- injury caused,by if liability such-failure employee' proximately- (other a.signal, sign, marking Section than, one described..in or.-device endangered, 830.4) to-warivof condition- which necessary -a. not be reasonably the safe movement of traffic and which would apparent exercising due and would not have been care.” to, anticipated by, person Engineer; n Division Hazelwood, Division approved F. W= (cid:127) ¿nd Plans; E. W. Surveys Engineer,- IÍI; Quinri, Fred *9 further, that the work Engineer; and, Highway Morton, State plans. The with the in accordance completed in 1929 was county (cid:127) (1957) the state relin- time at the engineer stated that the inter-' highway which includes quished county the the to construc and made the change had been section no county: made the been had thereafter none tion and that prior testimony There is also involved. here the accident “they and also had horses highway built was the that when Au go up Boseville and used to . buggies . . [which] weren’t such time “there at it, and that burn” on homes all over the shopping centers and things and as schools evidence is substantial place.” apparent that there thus It is body employee public or upon which a reasonable the basis design in plan approved or adopted the have or could county’s favor must affirmed be judgment and that the origi argues Although Mrs. Johnston ground. on this light not mention plans upon relies do which the nal items, which intersection, such warning ing signs point in provided at some complains have been she should accident,9 now only to admittedly serve would prior time to her was created which contends the hazard she lessen designed, and for which was manner in which the intersection immunity. 830.6extends respect Becker, With cross-defendant Mrs. John negligence, contributory the issues of ston contends negligence application last clear doctrine and chance jury. been submitted should have Auburn, driving related, already was north on As Becker street, through per at 35 to 40 miles hour. He testified that he night dark, was and his was familiar headlights lights low beam. He saw the of the were on John- approaching him, was not sure their distance from car ston him, approaching car the Johnston was at the' but assumed around speed would continue the curve of Auburn. same operating signals on the Johnston car were No blinker anticipating it would leave south- means had no Becker him. He first and cut front of realized bound lane “wrong road” when he was on the side of the Johnston ear point feet where meets than five from less Sylvan. car was then about feet The Johnston herein, signs already Mrs. Johnston were two stated there 9 As to observe. failed see or either got up I I little farther Becker. He that “Just as testified right me, applied I coming saw across in front of then she ’’ skidded 21 the brakes. Becker’s car feet came to rest Auburn. The right, east, of the center line of side feet; Johnston skidded 24 the skid marks commenced vehicle marking yellow at the double line center of Auburn. From applied point which Mrs. Johnston her brakes to the point impact path was in car and on she of Becker’s his side of the road. opinion reasonably that Becker could We are of the negligent found under such circumstances. judgment of nonsuit favor of both cross-defendants
is affirmed. J., Comb, J., Schauer, J.,* Me
Traynor, Draper, C. J. pro tem.,† concurred. Dissenting.
PETERS, Concurring and I concurin J. holding port majority sup that the is sufficient evidence finding that there was a under sec *10 Code, agree that, and I also as a tion 835 of the Government part law, negligence matter of there is no evidence of on the of majority dissent, however, holding Frank Becker. I from the Code, dealing that munity 830.6 the Government with im of public plan design public of entities for the of grants immunity county improvements, main for the dangerous knowledge tenance of a condition after that its plan approved created such a It that al condition. follows though proper grant in to the nonsuit favor of Frank county Becker, in nonsuit favor of the should be reversed. the by proper interpretation 830.6 was discussed The of section ante, my California, v. dissent in Cabell State me Cal.Rptr. 34], and p. 476, 430 P.2d need not 155 [60 urged immunity again that the repeated. It was there be public plan by conferred the section for the improvements grant public immunity for entities does improvements free defects maintain failure to operation the by the actual disclosed conditions history at case, of accidents improvements. In the instant preceding immediately the acci- years the intersection testimony type expert that this of intersection is dent, and the assign Supreme sitting under Court Justice of the * Retired Associate by of the Judicial Council. ment the Chairman by Assigned the Judicial Council. the Chairman of † engineering1 are sufficient to example of bad a “classic” maintain continued to justify finding a operation had disclosed after actual it. considering the intersection constituted whether pointed at outset should out dangerous condition, it be lighting stationary at the that there was no by As shown true intersection. is not a pro- opinion, majority a motorist map appended straight will drive into ceeding ahead southbound on Auburn a motorist must turn Sylvan a true intersection Drive. In entering Y, and if steering either arm of his wheel before go he doesnot he will offthe road. accident, according to Mrs. Shortly Johnston’s before the oncoming headlights directly testimony, she a set of observed appeared on be the other side of road on what traveling. obvious, only, if not the is she was The inference approaching car which she was on believed she saw Sylvan. driving Any motorist Auburn night in fact Avason at but that, care Avouldassume where he the exercise of due appear oncoming automobile on sees another straight his road, side of the line on the other side of the road straight curve unless there are and does not clear is also indicating driver that road in front circumstances straight in fact The main of him not a curves. concern of is night highway driving stationary Avithout motorist on highway, among illumination is remain on highway whether the methods which he determines curves When the movement of other cars. he sees is is reasonably straight ahead, he can assume that car sense, namely, type apparently in the literal used "Classic” engi example engineering of bad used as classroom intersection is neering students. particular pointed expert to a intersection witness out part dangerousness depends the traffic volume and that a 11,800 day traveling average an vehicles a in 1961 showed count taken on Auburn Boulevard just Road. Examination north *11 long majority opinion map appended so the shows that as traffic is danger heavy on Auburn will is not much that driver southbound there really Sylvan or believe is fail to a continuation of Auburn. ears stantial when tionary there is an intersection that realize heavy, moving pattern When is of danger will the curve in Auburn. The becomes sub- itself disclose nighttime is there little traffic at because is no sta- there danger acute, lighting, as will be and the becomes demonstrated Sylvan lierinnfter, approaching when ear is the intersection on because may the southbound motorist on Auburn Auburn then he led to believe that actually Sylvan may into is not continues what realize that Auburn turns.
highway in not curve does absence of some clear evidence assumption wrong.2 that liis is present,
None law, of the circumstances here as a matter of required trier of fact to conclude that a reasonable driver exercising- point due care could not believe that at the of the straight accident Auburn continued ahead. The natural infer- approaching ence drawn fact to be from the car was straight from in ahead at least creates a conflict the evidence. question sign It ais factual as to whether the Y and the curve sign on Auburn -wouldor would not indicate to a reasonable driver that in point involved, there was a curve Auburn at the might reasonably or whether a driver believe that the Y inter- beyond section and in the curve Auburn were located approaching car. It is that a proceeding true reasonable driver ordinarily southbound on cars, Auburn would observe like the car, northbound, Becker certainly were but it is angle approach foreseeable that because of the reasonable driver in the exercise would of due care assume that a north- approaching car was road bound tance side a substantial dis- beyond the roads. short, jury properly align- could conclude ment dangerous and construction of the road created a condi- trap, that, light if tion. history intersection, accidents at maintained the operation condition after actual im- provements-disclosedit. judgment grants
I would affirm the insofar as it a nonsuit Frank Becker and grants it reverse insofar as it a nonsuit County of Sacramento. Tobriner, J., concurred. danger probably car, here, 2 Tlie is not acute unless there ais third proceeding northbound on Auburn. In the it absence such a ear would merely seem that onto who motorist believes Auburn is will drive Sylvan, error, path. danger discover his and retrace his Likewise the daytime .is not so acute when motorists a situation such as that relying upon lights before us are not of other ears to indicate the highway. Finally
.location of the the situation is not when highway presence there are numerous cars on the because their will indi Auburn, major highway, cate that which is the curves at the intersection Sylvan merely and is a side road. clearly nighttime may Nevertheless foreseeable that at there road, approach few stantially on the vehicles that cars will the intersection in sub- pattern here, proceeding involved and that the motorist southbound on Auburn in the exercise of due care will be misled an approaching believing automobile ceeds pro- into that Auburn directly Sylvan. into expert testimony dangers also shows type other inherent they need not be detailed here.