61 Cal. App. 4th 1462 | Cal. Ct. App. | 1998
Opinion
— A teenager climbs a freeway fence and runs across the freeway. He is struck by a truck and is seriously injured. This is a use of the . freeway without due care in a manner which is not reasonably foreseeable. Therefore, the State of California is not liable for his injury under the California Tort Claims Act.
Gary and Nancy Schonfeldt, as guardians ad litem for their son, Brian Schonfeldt, appeal from the judgment on the pleadings granted to respondent, the State of California. The Schonfeldts contend there are factual questions as to whether four alleged defects surrounding Highway 101 created a dangerous condition funneling Brian to climb a fence and attempt to run across the freeway. We affirm the judgment.
Facts
Brian and two other boys left their high school one morning, climbed over the freeway fence and ran across the freeway. The other two boys made it across safely, but Brian suffered severe injuries when he was struck by a truck. Brian was 15 years old at the time of the accident and he suffered from attention deficit hyperactivity syndrome (ADHD).
The Schonfeldts filed the instant fourth amended complaint against respondent, the State of California, and others.
The trial court granted respondent’s motion for judgment on the pleadings, ruling that the allegations of the complaint were insufficient as a matter of law. The trial court granted judgment and this appeal ensued.
Discussion
In reviewing a judgment on the pleadings, we determine whether the complaint states a cause of action and whether the defect can reasonably be cured by amendment. (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187 [45 Cal.Rptr.2d 82].) If so, the trial court committed reversible error. Otherwise, we affirm. (Ibid.) We treat the pleadings as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We independently construe statutes as a matter of law according to their purpose and intent. (Ibid.) If there is no liability as a matter of law, leave to amend should not be granted. (Ibid.)
A public entity may be liable for injuries caused by a dangerous condition of its property only as provided by statute. (Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157 [40 Cal.Rptr.2d 442, 892 P.2d 1185]; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809 [205 Cal.Rptr. 842, 685 P.2d 1193].) Section 835 of the Tort Claims Act (Gov. Code, §§ 830-840.6 et seq.)
Section 830, subdivision (a) defines “dangerous condition” to mean “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.” “ ‘[W]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’ ” (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 810.)
“[A] public entity is only required to provide roads that are safe for reasonably foreseeable careful use.” (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 [45 Cal.Rptr.2d 657], italics added; 4 Cal. Law Revision Com. Rep., supra, p. 822.) The purpose of freeways is to “ ‘provide rapid transit for through traffic, uninterrupted by vehicles or pedestrians. . . .’ ” (See generally People ex rel. Dept. of Transportation v. Wilson (1994) 25 Cal.App.4th 977, 982 [31 Cal.Rptr.2d 52]; Sts. & Hy. Code, §§ 23.5, 100.1, 100.2, 100.3.) Generally, it is illegal for pedestrians to use a freeway. (Veh. Code, § 21960.)
Although public entities may be held liable for injuries occurring to reasonably foreseeable users of the property, even when the property is used for a purpose for which it is not designed or which is illegal, liability may ensue only if the property creates a substantial risk of injury when it is used with due care. (See generally Acosta v. County of Los Angeles (1961) 56 Cal.2d 208, 210-211, 213 [14 Cal.Rptr. 433, 363 P.2d 473, 88 A.L.R.2d 1417]; Torkelson v. City of Redlands (1961) 198 Cal.App.2d 354, 359-360 [17 Cal.Rptr. 899]; see also Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code, supra, foil. § 830, p. 299.) Whether a condition creates a substantial risk of harm depends on how the general public would use the property exercising due care, including children who are held to a lower standard of care. (§ 830.) The standard is an objective one; a plaintiff’s particular condition, such as ADHD, does not alter the standard.
The Schonfeldts cite Gardner v. City of San Jose (1967) 248 Cal.App.2d 798 [57 Cal.Rptr. 176]. Their reliance on Gardner is misplaced. In Gardner, a vehicle struck a minor pedestrian crossing a dark, unmarked crosswalk at the intersection of two city streets. The pedestrian subway underneath the street was not illuminated on the evening of the accident, and it was otherwise unsafe. There were no warning or yield-to-pedestrian signs for motorists.
The Court of Appeal upheld judgment for the plaintiff after jury trial in Gardner. The situation created a “trap” because both the pedestrian and the
The instant situation is more akin to Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380 [4 Cal.Rptr.2d 16], Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122 [231 Cal.Rptr. 598], and Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492 [147 Cal.Rptr. 898]. In Mathews, an eight-year-old child became injured riding his bicycle down a very steep, wet and slippery hill in a city park. The Court of Appeal upheld the summary judgment granted to the district. The appellate court explained that liability may not be imposed in Mathews because the danger was readily apparent, even to a child exercising a lower standard of due care. (Mathews v. City of Cerritos, supra, 2 Cal.App.4th at p. 1385, citing Fredette v. City of Long Beach, supra, 187 Cal.App.3d at pp. 131-132 and Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d 492 at p. 500.) This is so even when the public entity, as in Mathews, is aware that many children use such property to engage in such activity.
Similarly, in Fredette, the appellate court upheld judgment for Long Beach after a child injured himself by diving from a pier into a shallow lagoon. The Fredette court explained that “[t]he physical characteristics of the facility gave immediate notice to those persons exercising due care that diving from the pier was, in and of itself, a hazardous activity that should be avoided.” (Fredette v. City of Long Beach, supra, 187 Cal.App.3d at p. 132.)
In Bartell, a 12-year-old boy entered a school playground either through an unlocked gate or a hole in the school fence. He died from injuries incurred while playing a dangerous version of “crack the whip” on a skateboard in the playground. The gate and hole were not inherently dangerous even assuming the school district knew that children customarily entered the playground through them to play such games. “The injuries were the direct result of the dangerous conduct of plaintiffs’ son and his companion and not of any defective or dangerous condition of the property.” (Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83 Cal.App.3d at p. 497.) So it is here.
“[P]ublic entities have no duty, as a matter of law, to prevent members of the public — including young children — from scaling walls and fences
None of the facts alleged here constitute a dangerous condition, either by themselves or in combination. (Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 484 [220 Cal.Rptr. 181].) Brian chose to do something no reasonable person using due care would do under the circumstances alleged —jump a fence and run across a freeway. The judgment is affirmed.
Costs are awarded to respondent.
Stone (S. J.), P. J., and Yegan, J., concurred.
he other defendants are the Atascadero Unified School District Matador Lines, Inc.; Truck-A-Way; and Jesus Mendez Rodriguez. None are parties to this appeal.
All statutory references are to this code unless otherwise stated.
