Opinion
Plaintiff Stephani Lynn Victor appeals from the judgment entered in favor of defendants Michael Allen Hedges and Thermtech, Inc. (collectively, Hedges), following the grant of defendants’ motion for summary judgment, and from the denial of her motion for new trial. Michael Hedges parked his auto on the sidewalk in front of his apartment building. Plaintiff and Hedges were standing on the sidewalk behind the car, when an inattentive motorist drove over the curb and into plaintiff, seriously injuring her. We are required to decide whether a statute prohibiting the parting of a vehicle on a sidewalk may be employed to fix upon Hedges the presumption of negligence in the circumstances of this case and whether reasonable people could conclude that he subjected plaintiff to an unreasonable risk of harm. We hold the statute in question was not designed to prevent the type of occurrence that resulted in plaintiff’s injury, and plaintiff has failed to raise a triable issue of fact that an ordinarily prudent person in Hedges’s place would have foreseen an unreasonable risk of harm to plaintiff. Accordingly, we affirm.
Factual and Procedural Background
Plaintiff brought an action for damages alleging that on the day in question defendant Thermtech owned a certain Ford Explorer and defendant Hedges was driving that vehicle with the owner’s consent, that defendant Mark Williams was driving a Ford Aerostar van, and that defendants negligently operated and controlled these vehicles so as to cause a collision with plaintiff, who was lawfully upon the sidewalk in the City of Hermosa Beach.
The undisputed facts showed that at approximately 10:00 p.m. Hedges had parked his Ford Explorer on the sidewalk in front of his apartment building, parallel to, and with the driver’s side tires three to four feet from, the curb line of Hermosa Avenue in Hermosa Beach. Hedges did this to show plaintiff his new compact disk player, which was located in the rear of the Explorer. Due to construction, northbound traffic along Hermosa Avenue was routed into a single lane along the east curb. There was some gravel on the road, and the surface was rough with bumps and potholes. Immediately before the accident Williams was northbound on Hermosa Avenue, approaching the intersection with First Street, in his Aerostar van. He looked down at the tape deck and, with his right hand, fast-forwarded a cassette for approximately two seconds. The steering wheel jostled about an inch each way, Williams’s van drifted to the right, and the front and rear passenger side tires hit the First Street curb, causing them to blow out; the van continued in its path. Hedges and plaintiff were standing at the rear of the Explorer, with plaintiff nearer the curb and Hedges to her right, when Williams’s van ran into plaintiff and the Explorer about 30 feet from the First Street curb.
The trial court granted summary judgment to defendants and denied plaintiff’s motion for new trial. On neither motion did the trial court allow counsel to present argument at the hearing.
Discussion
Plaintiff’s claim against Hedges and Thermtech is based on theories of negligence
A. Standard of Review
The granting of a summary judgment motion by the superior court is subject to independent review.
(Buss v. Superior Court
(1997)
B. Negligence Per Se
Plaintiff argues that Hedges must be presumed negligent because he violated Vehicle Code section 22500, subdivision (f), 1 which prohibits parking on a sidewalk.
Section 669, subdivision (a) of the Evidence Code provides: “The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute
. . . [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute . . . was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute . . . was adopted.” With respect to paragraphs (3) and (4), the Law Revision Commission Comments state: “Whether the death or injury involved in an action resulted from an occurrence of the nature which the statute . . . was designed to prevent. . . and whether the plaintiff was one of the class of persons for whose protection the statute . . . was adopted are questions of law. Nunneley v. Edgar Hotel, 36 Cal 2d 493,
At the time of the accident, section 22500 provided: “No person shall stop, park, or leave standing any vehicle whether attended or unattended, except when necessary to avoid conflict with other traffic or in compliance with the directions of a
We are required to determine the nature of the occurrence that section 22500, subdivision (f) was designed to prevent. 3 Although substantially identical provisions exist in many states, 4 we have found no case addressing this issue.
Section 22500 designates 12 categories of locations where stopping, standing or parking a vehicle is prohibited. The Legislature specified certain
of these with pedestrians obviously in mind. “On a sidewalk” {id., subd. (f)), which the Code defines as “that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel” (§ 555), is one of these.
5
Others are: “[o]n a crosswalk” (§ 22500, subd. (b)); “[bjetween a safety zone and the adjacent right-hand curb”
(id.,
subd. (c)); “[alongside curb space authorized for the loading and unloading of passengers of a bus engaged as a common carrier in local transportation” (id., subd. (i)); and “[i]n front of that portion of a curb that has been cut down, lowered, or constructed to provide wheelchair accessibility to the sidewalk . . . .”
(Id.,
subd.
(I).)
6
With the exception of “[o]n a sidewalk”
(Id.,
subd. (f)), vehicles normally operate within each of these designated categories, and, for these, the section’s prohibition appears designed both to prevent vehicular obstruction of pedestrian traffic and to lessen the danger of vehicle-pedestrian collision. Thus pedestrians finding it necessary to walk around a vehicle that is illegally parked, stopped or left standing may be put at increased risk of injury from unsure
Injury to a pedestrian on a sidewalk, resulting from contact with a vehicle that has been parked, stopped or left standing there, can also occur when the vehicle is at rest or when it is again put in motion. The Legislature’s 1998 amendment to subdivision (f) of section 22500 appears to reflect an awareness that a vehicle at rest, even if partially on the sidewalk, can cause injury to a passing pedestrian.
10
In this situation, the pedestrian,
We conclude that subdivision (f) of section 22500 was designed to prevent (1) vehicular obstruction of pedestrian traffic on sidewalks, and (2) injury to pedestrians that might occur when a pedestrian (a) walks around the obstructing vehicle and is injured by another hazard, (b) walks into the obstructing vehicle, or (c) is struck when the vehicle, previously at rest on the sidewalk, is put in motion. The section was not designed to prevent the type of occurrence that resulted in plaintiff’s injury in this case—being struck on the sidewalk by a vehicle other than the illegally parked vehicle. 11 Accordingly, the court correctly denied to plaintiff the presumption, available under Evidence Code section 669, that defendants failed to exercise due care.
C. Ordinary Negligence
We turn now to the issue of ordinary negligence. “Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. [Citations.] [¶] The ‘legal duty’ of care may be of two general types: (a) the duty of a person to use ordinary care in the activities from which harm might reasonably be anticipated. [Citation.] (b) An affirmative duty where the person occupies a particular relationship to others. [Citation.] In the first situation, he is not liable unless he is actively careless; in the second, he may be liable for failure to act affirmatively to prevent harm.” (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, pp. 60-61, italics in original.)
The Restatement sets forth the elements of a cause of action for negligence as follows: “The actor is liable for an invasion of an interest of
another, if: [¶] (a) the interest invaded is protected against unintentional invasion, and [¶ ](b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and [¶] (c) the actor’s conduct is a legal cause of the invasion, and [¶] (d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.” (Rest.2d Torts, § 281.) “[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”
(Id.,
§ 282.) Only those circumstances which the actor perceives or should perceive
Plaintiff contends the following undisputed facts are sufficient to defeat defendants’ summary judgment motion: Hedges took plaintiff to the sidewalk in front of his apartment about 10:00 p.m., to see the compact disk player in his car, and stood with plaintiff on the sidewalk within three to four feet of the curb, knowing that the street was undergoing construction, such that traffic was reduced to one lane and the surface of the road had some gravel upon it and was bumpy. In the half-block south of his apartment building Hedges had observed between five and ten dirt mounds; the mounds were six to eight feet in height and four to five feet on the other side of the traffic lane. Hedges acknowledged that due to bumps and potholes in the street, sometimes his car would act a little “squirrelly,” causing “momentary [loss of] control of the vehicle for a split second.” 12
Defendants contended in the court below that plaintiff could not establish that Hedges’s conduct was the legal or proximate cause of plaintiff’s injury. The parties have argued almost exclusively “intervening cause” cases focusing on the concept of “foreseeability,” with each side contending for its own favorites.
Plaintiff relies primarily upon three cases:
Bigbee
v.
Pacific Tel. & Tel. Co.
(1983)
In
Robison v. Six Flags Theme Parks Inc., supra,
The Robison court relied upon two principles stated in Witkin. (64 Cal.App.4th at pp. 1304-1305.) They are: “Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.” (6 Witkin, Summary of Cal. Law, supra, Torts, § 925, at p. 296.) “Conduct is negligent where some unreasonable risk of danger to others would have been foreseen by a reasonable person.” (Id., at § 751, at p. 89.) 13
In
Curreri v. City etc. of San Francisco, supra,
Unlike the defendants in the cases relied upon by plaintiff, Hedges is not a business invitor or a landowner 14 who has created, or allowed to exist, a dangerous condition, and he is not shown to have any other “special relationship” vis-a-vis plaintiff, which might give rise to a duty to correct a dangerous condition. (See 6 Witkin, Summary of Cal. Law, supra, Torts, §§ 858-964, pp. 220-354.) In this situation, Hedges “is not liable unless he is actively careless.” (See id., § 732, at pp. 60-61.)
Defendants argue only one case in support of their position,
Schrimscher v. Bryson
(1976)
The cases relied upon by the parties are focused upon determining whether the defendant’s conduct was the cause of the injury, and we believe that in the case at bar the proper focus lies elsewhere. “There is a clear distinction . . . between the problem of foreseeability of intervening causes in determining whether the defendant’s conduct was the proximate cause of an injury, and the problem of foreseeability in determining whether
the defendant was negligent at all. In the latter case the problem is whether or not the defendant’s conduct was wrongful toward the plaintiff, while in the former it is whether he should be relieved of responsibility for an admitted wrong because another’s wrongful conduct also contributed to the injury.”
(.Richards v. Stanley
(1954)
For Hedges to be liable for negligence, his conduct must have fallen below the standard established by law for the protection of those in plaintiff’s situation against “unreasonable risk of harm.” (Rest.2d Torts, § 282.) Plaintiff argues that Hedges should have foreseen the likelihood that another vehicle would lose control and come onto the public sidewalk where he and plaintiff were standing, a few feet from the curb. This, says plaintiff, was negligence because it was near a road made hazardous by construction activity, which Hedges knew about, and it was foreseeable that these conditions could cause a car to lose control and run onto the curb.
In the circumstances of this case these facts do not raise a triable issue that Hedges’s conduct was wrongful toward the plaintiff. Reasonable people would not conclude, from these facts, that Hedges’s act of taking plaintiff to the sidewalk subjected her to an unreasonable risk of harm. Plaintiff relies solely upon Hedges’s knowledge of the following road conditions to establish his negligence: the street was undergoing construction; traffic was reduced to one lane; the road surface was bumpy and had some gravel upon it; and there were dirt mounds four to five feet to the left of the traffic lane. Plaintiff’s expert declared that these and other factors—deficient size of lane of travel, according to applicable manuals and specifications, inadequate delineation of the left side of the roadway, and the asphalt overhang at the gutter—“bias[ed]” the Williams van to the right side of the road, and that the van’s drift to the right could be predicted by traffic engineering human factors. But Hedges is not shown to have had the special knowledge of an expert, and his conduct is not judged by that standard. (See Rest.2d Torts, § 289.) Thus, knowledge of the “bias” condition of the roadway, or of what could have been predicted by using traffic engineering human factors, is superior knowledge that Hedges is not chargeable with. 15 There is no evidence in the record that Hedges was aware of any prior accident in this area, 16 and there is no evidence raising a triable issue of fact that an ordinarily prudent person would have understood that he or she was subjecting plaintiff to an unreasonable risk of harm by standing on the public sidewalk at this location.
The cases relied upon by plaintiff each involved a special relationship, not present here, such as business invitor or a city’s responsibility for the condition of streets, curbs, and sidewalks. But even in those situations, a foreseeability analysis such as that used in
Robison
v.
Six Flags Theme Parks Inc., supra,
Plaintiff was wedged between Williams’s van and Hedges’s Explorer at the moment of impact, which may well have increased the severity of her injuries. It necessarily
We conclude that under the undisputed facts here there can be no reasonable difference of opinion as to whether Hedges subjected plaintiff to an unreasonable risk of harm or as to the foreseeability that a driver would become distracted and, due to road conditions that only qualified experts would be able to detect, run up on the sidewalk in the stretch of road in front of Hedges’s apartment. 17 We conclude that defendants were entitled to summary judgment.
D. Plaintiffs Other Arguments
Plaintiff argues vigorously that the judgment should be reversed because the trial court refused to allow counsel to present oral argument at the hearings on defendants’ summary judgment motion and plaintiff’s motion for new trial, and that the trial court erred in ruling that a motion for new trial will not lie following a grant of summary judgment. These motions were of considerable importance to the parties, and there is no doubt that the
quality of justice and appearance of fairness would have been enhanced had the trial court allowed counsel to present argument. The Fourth District has twice held that courts are required to allow counsel to orally argue summary judgment motions. (See
Mediterranean Construction Co. v. State Farm Fire & Casualty Co.
(1998)
Notwithstanding the appearance of fairness issue, with which we happen to agree, to reverse on the basis of the claimed deficiencies in the trial court’s handling of these motions would serve no useful purpose at this point, because we have decided, on the merits of the parties’ arguments, that the trial court correctly entered judgment against plaintiff.
Disposition
The judgment is affirmed. Defendants shall recover their costs.
Epstein, Acting P. J., and Curry, J., concurred.
A petition for a rehearing was denied January 18, 2000, and appellant’s petition for review by the Supreme Court was denied March 22, 2000. Mosk, J., was of the opinion that the petition should be granted.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Unless otherwise indicated, all statutory references are to the Vehicle Code (Code).
Section 21114.5 provides: “Notwithstanding Section 21663 or any other provision of this code, local authorities may, by ordinance, authorize the operation of electric carts by physically disabled persons, by persons 50 years of age or older, or, while in the course of their employment, by employees of the United States Postal Service, state and local governmental agencies, or utility companies, on public sidewalks. . . .”
Section 21663 provides: “Except as expressly permitted pursuant to this code, including Sections 21100.4 and 21114.5, no person shall operate or move a motor vehicle upon a sidewalk except as may be necessary to enter or leave adjacent property.” Section 21100.4 permits local authorities to adopt rules “regarding the operation of electric carts on the public sidewalks by employees of the United States Postal Service, state and local governmental agencies, or utility companies, while in the course of their employment.”
Subdivision (f) was amended in 1998. The amendment is discussed in the text and associated footnote 10, post.
This provision substantially conforms with section 11-1003 of the Uniform Vehicle Code as amended in 1930 (U. Veh. Code Ann. (1967) § 11-1003).
A “pedestrian” is “any person who is afoot or who is using a means of conveyance propelled by human power other than a bicycle.” (§ 467, subd. (a).) A “pedestrian” includes “any person who is operating a self-propelled wheelchair, invalid tricycle, or motorized quadricycle and, by reason of physical disability, is otherwise unable to move about as a pedestrian, as specified in subdivision (a).” (§ 467, subd. (b).)
The Code defines “highway” and “street” in the same terms: “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.” (§§ 360, 590.) The Code defines “roadway” as “that portion of a highway improved, designed, or ordinarily used for vehicular travel.” (§ 530.) In general usage, a city street is a “roadway” from curb to curb.
(Shachunazarian v. Widmer
(1958)
Categories less directly related to pedestrians are: “[w]ithin an intersection” (§ 22500, subd. (a)); “[wjithin 15 feet of the driveway entrance to any fire station” (subd. (d)); “[i]n front of a public or private driveway” (id., subd. (e)); “[alongside or opposite any street or highway excavation or obstruction when such stopping, standing, or parking would obstruct traffic” (id., subd. (g)); “[o]n the roadway side of any vehicle stopped, parked, or standing at the curb or edge of a highway” (id., subd. (h)); “[i]n a tube or tunnel” (id., subd. (j)); and “[u]pon a bridge.” (id., subd. (k)).
In
Hartford v. Silverman
(1930)
“[A] defendant who blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven . . . .” (Prosser & Keeton, Torts (5th ed. 1984) § 44, pp. 304-305.) In
Parker
v.
City & County of San Francisco
(1958)
In
McKay v. Hedger
(1934)
An example of the latter situation is found in
Fowler
v.
Callis
(1958)
Plaintiff argues that the amendment, which was not in effect at the time of the accident in this case, clarifies the Legislature’s original intent. The amendment makes more explicit what is meant by “[o]n a sidewalk.” (Italics added.) Subdivision (f), as amended, is reproduced here with the language added in italics, “(f) On any portion of a sidewalk, or with the body of the vehicle extending over any portion of & sidewalk, except electric carts when authorized by local ordinance, as specified in section 21114.5. Lights, mirrors, or devices that are required to be mounted upon a vehicle under this code may extend from the body of the vehicle over the sidewalk to a distance of not more than 10 inches.” (Stats. 1998, ch. 877, § 66.)
Plaintiff submitted the declaration of Reuben Vollmer, an accident reconstruction expert, who stated that in his opinion the injuries suffered by plaintiff resulted from an occurrence the nature of which section 22500, subdivision (f) was designed to prevent. This issue is not properly the subject of expert testimony, as it presents a question of law for the court.
(Nunneley v. Edgar Hotel
(1950)
We acknowledge that plaintiff points to some additional claimed defects in the road, but the record contains no evidence to show that they were either observed by Hedges or would have been observed by the average person in the community. For example, through expert declarations plaintiff demonstrates that, because of the size of the travel lane, the storage of construction materials to the left side of the roadway, and the inadequate delineation of that side of the roadway, the Williams van was “forcefd] ... to bias to the right side of the traveled lane,” and an asphalt overhang at the gutter caused the van “to drift farther to the right into the curb.” This drifting, says plaintiffs expert, would be predicted based on traffic engineering human factors but would be “undetectable to the driver who was momentarily diverted.” The expert concludes that the accident was the fault of the City of Hermosa Beach and those involved in the construction project. In regard to this road, Hedges does not bear the same duty vis-á-vis plaintiff as those actors. (See, e.g., Rest.2d Torts, §§ 289, 290; Gov. Code, §§ 835 [relating to liability of public entity for injury caused by dangerous condition of property], 815.4 [relating to liability of public entity for injury caused by tortious act or omission of its independent contractor].)
This is the rule set forth in section 282 of the Restatement Second of Torts, quoted ante.
Plaintiff also relies upon
Barker v. Wah Low
(1971)
illustration 13 of Restatement Second of Torts, section 289, provides an example of the risk that an actor with superior knowledge is required to recognize: “A, a chemist, knows that certain chemicals have such an attraction to one another that if placed near together they are apt to generate explosive or inflammable gases. A is required to realize the peril of placing such substances close together, although a layman would not be required to realize this danger.”
Plaintiff relies upon a report to the City of Hermosa Beach by a motorist whose right wheels went into the groove created where the raised asphalt covering the road joined the cement along the curb along this stretch of Hermosa Avenue. This was not something Hedges is shown to have known about.
In this situation summary judgment is appropriate. (See Rest.2d Torts, § 285, com. f, p. 22.)
Neither
Mediterranean Construction Co.
nor
Gwartz
had been decided when the trial court declined to hear plaintiff’s argument at the summary judgment hearing. In
Lewis
v.
Superior Court
(1999)