Raymond Paul Johnson - Civil Litigators - Los Angeles, CA

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Investigation and Trial Techniques To Show the Difference

by Raymond Paul Johnson


Afterwards, the witnesses lamented: The child ran out. The driver never saw him. The car smashed that little boy. My God, what a tragedy!

It was quickly determined that the driver of the vehicle had minimal insurance and minimal fault. The insurance claim settled. The 6-year-old boy had in fact run out between parked cars onto a busy residential street, and the driver had little to no chance of seeing him.

What next? The first steps were to carefully review the Traffic Collision Report and its photographs (such as Figure 1), walk the site of the collision, talk to witnesses, and retain appropriate experts.

Experts and Investigation

Traffic engineering expert Harry Krueper of San Bernardino, California was contacted to conduct a site survey and accident reconstruction. Mr. Krueper confirmed that the description of events above was indeed correct.

His accident reconstruction revealed that the little boy had crossed at the top of a T-intersection in an unmarked crosswalk that led to the opposite corner. Importantly, it also confirmed that the child came off the curb in between cars parked within the intersection. The key issue arose: Why were cars allowed to park in an intersection blocking visibility at the unmarked crosswalk?

Next, an investigation into prior accidents revealed a 5-year history of traffic collision after traffic collision along that particular residential street. Only one involved personal injury to a child; the rest were car-to-car collisions on the average of one per month. Weaving this accident history with the experts' work and the applicable law made significant headway in revealing the dangerous condition of public property and the liability of the city involved.

Applicable Law

Showing Notice

Accident history is usually critical in road design cases to establish that the government entity had notice of the dangerous condition of public property. See California Government Code section 835 et seq. Constructive notice is adequate where: "[p]laintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." California Government Code section 835.2.

Evidence of prior accidents is admissible to show that a government entity had constructive notice of a dangerous condition, even if the prior accidents are somewhat dissimilar. See Hilts v. County of Solana (l968) 265 Cal.App.2d 161, 169, 71 Cal.Rptr. 275. See also Fuller v. State (1975) 51 Cal.App.3d 926, 943, 125 Cal.Rptr. 586, (quoting Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220):

    Before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. The strictness of this requirement of similarity of conditions is ‘much relaxed,' however, when the purpose of the offered evidence is to show notice. Id. (Emphasis added.)

    See also Hilts, 265 Cal.App.2d at 169, 71 Cal.Rptr. 265:

    The requirement of similarity of conditions is much relaxed when the evidence is offered to show notice of the dangerous condition. . . . In order to establish the liability of [the government entity] for a dangerous and defective condition of public property it [is] incumbent upon plaintiffs to show that [the public entity] had actual or constructive notice of the alleged dangerous condition of the intersection. The test of admissibility of evidence of prior accidents to show notice is that the evidence must be such as to have attracted the defendant's attention to the dangerous situation. (Emphasis added.)

In this case, even through the vast majority of accidents along the residential street were arguably dissimilar (i.e., car-to-car vs. pedestrian accidents) the sheer number of collisions should have attracted the public entity's attention. The city should have realized from the number of collisions alone that a dangerous condition of property existed or at least probably existed along the residential street. See e.g. Hilts, 265 Cal.App.2d at 169, 71 Cal.Rptr. 265.

Proving Dangerous Condition

California Government Code section 835 establishes that a public entity can be liable for injury caused by a dangerous condition of public property. To prove liability, in addition to "notice," plaintiff must show that:

  1. the public property was in a dangerous condition at the time of injury;

  2. the dangerous condition was a substantial factor in bringing about the injury; and

  3. the kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition.

In addition, the prima facie elements needed to prove "dangerous condition" are described in California Government Code section 830(a). A dangerous condition must:

  1. create a substantial (as distinguished from a minor, trivial or insignificant) risk of injury;

  2. when such property or adjacent property is used with due care; and

  3. in a matter in which it is reasonably foreseeable that it will be used.

See e.g. California Government Tort Liability Practice, section 3.15 (CEB 3dEd. 1992).

Also, a condition of public property is subject to liability under the Government Code, although not structurally unsound nor physically defective, when it is dangerous because of "the presence of latent hazards associated with its normal use." Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1473, 20 Cal.Rptr. 734; see also Warden v. City of Los Angeles (1975) 13 Cal.3d 297, 118 Cal.Rptr. 487; and Anderson v. City of Thousand Oaks (l976) 65 Cal.App.3d 82, 135 Cal.Rptr. 127. In such cases, the danger is usually non-obvious, amounting to a hidden trap that results in injury because of the interplay between physical features and the particular kind of foreseeable use. See e.g. Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 805-06, 57 Cal.Rptr. 176 (holding that failure to provide crosswalk markings, and signs warning of pedestrian crossings on street with high traffic volume created a "trap situation" for pedestrians and drivers).

The affect of allowing parking at the intersections and over the unmarked crosswalks without properly posting warnings to motorist such as "Watch the Children" or "Caution Approaching Intersection" created a dangerous trap for motorists and pedestrians alike. The foreseeable result was inevitable – a collision between a car and a neighborhood child.

The "Due Care" Requirement

As mentioned, public property is only in a dangerous condition under the Tort Claims Act if its condition creates a substantial risk of harm when used with due care. Government Code section 830(a); see also BAJI No. 11.54.

Plaintiffs's expert confirmed that the small boy had run out between parked cars into traffic. Although, the defense experts had the little boy running out much much faster (almost Olympic speed), both agreed: He was running.

Importantly, plaintiff need not plead nor prove the absence of his or her own negligence. Mathews v. State (1978) 82 Cal.App.3d 116, 145 Cal.Rptr. 443 (holding that negligent use of an intersection does not negate existence of dangerous condition); see also Murrell v. State ex rel. Dept. of Public Works (1975) 47 Cal.App.3d 264, 120 Cal.Rptr. 812.

The negligence of plaintiff, if any, is an affirmative defense that "has no bearing upon the determination of a ‘dangerous condition' in the first instance." Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 799, 198 Cal.Rptr. 208. The "used with due care" requirement refers to use of the public property by the public generally. Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 57 Cal.Rptr. 639. Plaintiff is only required to establish that the "condition creates a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as concurrent tortfeasor." Mathews, 82 Cal.App.3d at 121, 145 Cal.Rptr. 443.

Here, the long history of car-to-car collisions along the subject residential street was evidence that plaintiff's "due care" requirement was satisfied. Many of those collisions could be tied to drivers pulling their vehicle out of their driveways along the residential street without seeing on-coming traffic. The obstructions to visibility were caused by cars allowed to park in intersections and unmarked crosswalks. Interestingly, the height of a driver's eyes above the ground is substantially similar to that of a standing six year-old boy. The lack of safe "sight distance" for both drivers and children, due to the dangerous parking permitted along the street, were directly related factually and legally.

In addition, as a matter of law, a child cannot be held to an adult standard of "due care." The amount of care required from young children is substantially less than that required of adults. Daun v. Truax (l961) 56 Cal.2d 647, 652, 16 Cal.Rptr. 351; see also Davis v. Cordova Recreation and Park District (1972) 24 Cal.App.3d 789, 101 Cal.Rptr. 358; BAJI No. 3.35 and Law Revision Commission Comment to Government Code section 830. A minor is only "required to exercise the degree of care which ordinarily is exercised by minors of like maturity, intelligence, and capacity under similar circumstances." BAJI No. 3.35.

Additionally, the city knew full well that children were crossing this particular residential street because of the many houses and schools in the area. As such, it had a responsibility to take reasonable precautions to protect these children from the substantial risk of injury. Davis, 24 Cal.App.3d at 796-99, 101 Cal.Rptr. 358; see also Law Revision Commission Comment to Government Code section 830. It is necessary to exercise greater caution for the protection and safety of young children than for adults. See BAJI No. 3.38. The fact that "children usually do not exercise the same degree of prudence for their own safety as adults, or that they are often thoughtless or impulsive, imposes a duty to exercise a proportional vigilance and caution on those dealing with children, and from whose conduct injury to a child might result." Id. See also Schwartz v. Helms Bakery (l967) 67 Cal.2d 232, 240, 60 Cal.Rptr. 510.

The investigation also showed that the residential street at issue had a history of excessive vehicle speeds, and heavy traffic volume. Plaintiff's experts conducted speed surveys and traffic counts to substantiate these items. This information would be admissible at trial, along with the experts' opinions regarding the obstructions to visibility caused by parked cars, and the lack of adequate traffic controls and warning signs, because together these items created a foreseeable risk of harm to pedestrians crossing the subject street, especially small children. See e.g. Becker v. Johnston (l967) 67 Cal.2d 163, 172, 60 Cal.Rptr. 485.

Trial Presentation

Favorable facts and favorable law existed, but the key issue remained: Was this a "dart out" or a killer road? To demonstrate the latter, a visual presentation was needed that would prove to the jury that the injuries were caused by the defective road, and not the contended negligence of the child, child's parents, driver or other persons.

Eyes bear the soul, and can do the same for your case in front of a jury. Therefore, a "line of sight" study was devised.

The main idea was to visually present in simple charts the difference between the visibility or "line-of-sight" on the day of the collision, and safe sight distances that would exist absent the intersection parking. The collision was reenacted and sequential photographs were taken showing the perspectives of the driver coming down the street towards the child, and the perspectives of the little boy on the curb before and as he decided to cross the street.

Figure 2 entitled "Pedestrian's Perspective" demonstrated the perspective of the injured boy. Review the top photographs left to right slowly. Put yourself in the eye of the camera (positioned at the height of the small boy's eyes as he came off the curb). The photos show that with the parked cars at the intersection, the oncoming vehicle was not visible until the boy was well out into the street and committed to crossing. On the other hand, a review from left to right of the lower photographs shows that the oncoming vehicle would have been clearly visible to the little boy before the point where witnesses said he hesitated before running to the other side.

Figure 3, however, is still more important. This depicts the "line-of-sight" of the driver coming down the road. Looking left to right across the top of the Figure 3 gives you the perspective of the driver with cars parked at the intersection. Note that a child crossing between the parked cars at the unmarked crosswalk is not visible until no driver reaction time remains to stop the vehicle.

Looking at the lower portion of Figure 3 however shows clearly that, without the cars parked at the intersection, the oncoming driver has a clear view of any child trying to cross at the T-intersection, with plenty of time and opportunity to stop before hitting him or her. In fact, the child is visible on the curb before he ever decides to cross the street, making the driver aware of the child's presence, and giving her over a 100 feet to safely stop her vehicle.


In ninety percent of road design cases, resolution comes at the edge of trial or by verdict – win or lose. By that time, because of the many experts involved and the costly depositions of government engineers and other witnesses, the out-of-pocket litigation expenses alone usually exceed $100,000.

Armed with favorable law, the facts, and an effective method of demonstrating the killer nature of the subject road however, a road design case can be successfully resolved. What might seem just "another ‘dart out' case" can be much more. Keep in mind: Accidents don't just happen; they are caused.

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