Southern California Injury Lawyer Blog
The California Court of Appeal, Second District, affirmed a verdict in favor of the City of Los Angeles after an injured individual alleged the City had been negligent and was liable for injuries sustained while walking on a public sidewalk on West 89th Street. Turning to the notice requirement set forth in Government Code section 835, the court in this opinion assessed whether the plaintiff had been prejudiced by the trial court’s exclusion of certain testimony concerning the uplift in a sidewalk that constituted an allegedly dangerous condition. The court found the testimony that had been excluded was irrelevant to proving constructive notice, and it upheld the jury’s verdict in favor of the City.
The plaintiff in this case hurt her foot while walking on the sidewalk when, allegedly, the roots of a tree next to the sidewalk created a crack that uplifted a section several inches, causing her to hit her foot on this “uplift.” Within a year of the date of the accident, the plaintiff brought a tort claim against the City, alleging a dangerous condition of the sidewalk led to her injury.
The plaintiff sought to present testimony from the property owner of a house adjacent to the sidewalk where the plaintiff was injured. In a deposition, he had stated that when a City trash collection truck driver was collecting refuse on his street, he asked the driver whom he could contact regarding the tree next to the sidewalk. The trial court rejected this testimony, noting that it did not show any City employee saw the allegedly dangerous condition.
The plaintiff presented photographs of the uplift in the sidewalk and expert testimony concerning the condition, including the length of time it existed and whether City employees had been in the area. The jury returned their verdict in favor of the City, holding that while the sidewalk had in fact been in a dangerous condition, creating a foreseeable risk of the type of injury that occurred, there had not been notice of the condition. The plaintiff appealed, arguing that the trial court erred when they prohibited her from presenting evidence and arguments concerning the City’s notice of the dangerous condition of the sidewalk.
The appellate court stated that the trial court had properly excluded the deposition testimony of the property owner adjacent to the tree. The plaintiff contended that the condition had been so obviously dangerous that any City employee should have and would have noticed the uplift.
The court stated Government Code section 835, which holds a public entity liable for injuries caused by dangerous conditions of property. The plaintiff must show the public entity had actual or constructive notice of the condition for a sufficient time before the injury to have taken measures to protect against the condition. Actual notice of a dangerous condition exists when a public entity has knowledge of the condition and knew or should have known of its dangerous character. Thus, actual notice requires evidence that the government was aware of the particular condition.
Next, the court stated that constructive notice exists when the plaintiff shows the condition existed for such a long period of time that it was obvious that the entity should have discovered the condition and its dangerous character. In this case, the court stated that the property owner’s testimony had not been shown relevant to proving the City had notice under Government Code section 835. The comments made to the trash collector did not show the length of time that the condition existed, nor did they demonstrate the dangerousness of the condition.
The court also rejected the plaintiff’s theory that since City employees had been in the vicinity of the property, they had notice of the dangerous condition. The court stated that the sheer number of City employees in the City of Los Angeles would negate the notice requirement, which serves to confine potential liability to those circumstances provided by the Act.
Additionally, the court stated that even if a City employee had been in the area and had a duty to report a condition on City property, there was no evidence that any employee actually observed or was made aware of the condition. The court stated the rule that if an employee does not know of a condition, there can be no liability imputed to the employer. Here, the property owner’s testimony did not provide notice, since there had been no showing that the trash collection truck driver’s attention focused on the sidewalk.
Finally, the plaintiff had not suffered prejudice because of the exclusion of testimony, since even without the property owner’s testimony, she had evidence supporting her notice theory. She had been allowed to present evidence that the City had notice of the allegedly dangerous condition. The court noted that the plaintiff had used photographs and relied on expert testimony concerning the uplift in the sidewalk.
The appellate court affirmed the judgment in favor of the City.
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