Premises Liability

Bumpy Road for Pothole Liability

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

This week’s question comes from Shawn J., in Novato, who writes:

Q: “I read your column every week. I was heading home from an appointment [earlier this month] in the East Bay and got stuck for hours when the Richmond Bridge was shut down because of falling concrete. While I was sitting there, I was wondering who would be responsible for any injuries caused if the concrete crashed through a windshield, or caused someone to swerve, leading to injury? Later it turned out that only a car was damaged, thank God, but the question still lingers in my mind.”

A: Shawn, first of all, thank you for being a loyal reader. It feels good to know people actually read this column! Believe it or not, sometimes it takes up to three hours to research and write as I strive to provide substantive responses with citations to California statutes and case law.

The Richmond-San Rafael Bridge, connecting Marin and Richmond along Highway 580, opened in 1956. It is a 5.5 mile long cantilever and truss bridge with a steel structure and a concrete deck, different from the Bay and Golden Gate Bridges, which are suspension bridges. It was originally three lanes but, in 1977 it was narrowed to two to accommodate a massive water pipe feeding water from the East Bay to Marin during a drought that left Marin with no other reliable water source. In 1978, when the pipe was removed, the third lanes were not reopened to traffic. In 2018, given a double-digit increase in traffic volume, a third lane was opened on the westbound lower-deck during rush hour. The third lane on the upper deck is slated to become a pedestrian/bike way.

As the bridge reached its originally projected useful life, a $762,000,000.00 retrofit project was completed in 2005 by Tudor Saliba, a major highway and civil engineering firm, under contract with CalTrans. The work included retrofitting and reconstruction of the decking’s concrete and expansion joints. This is the ultimate source of the concrete’s failure and Thursday was not the first time since then that concrete has fallen onto the lower deck. In early 2006, just months after the retrofit was complete, concrete chunks fell from holes in the upper deck, leading to another $25,000,000.00 in retrofit costs.

The bridge is under constant physical stress, and not only from its substantial traffic flows. The bridge connects land sitting on the Rodgers Creek Fault, running through Marin and Sonoma, with land on the Hayward Fault, which runs through the western part of Alameda, and tremors regularly test the bridge’s retrofitting, designed to withstand a 7.4 magnitude quake on the east and an 8.3 quake on the west. The bridge is also subject to high winds that put lateral stress on the structure and cause bridge closures from time to time. The most recent structural failures appear to be occurring in the expansion joints, which look like zippers connecting stretches of concrete and allow the roadway to expand and contract under various loads, temperatures, tremors, and wind conditions. CalTrans claims to have inspected the joints last August and found no problems.

Under California Code of Civil Procedure Section 337.15, which sets a ten year statute of limitations for “latent” property defects not apparent on reasonable inspection, the contractors, designers, and engineers who retrofitted the bridge in 2005 are most likely free and clear of any responsibility. However, CalTrans may be responsible under Government Code Section 830, which prohibits maintaining a “dangerous condition of public property,” defined as a non-trivial defect that creates a substantial risk to people using the property with due care. Govt. Code Section 835 provides for governmental liability if “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Actual notice occurs when someone is actually aware of a defect as a result of inspection, observation, or report. Constructive notice exists when there was, or should have been, an inspection program to evaluate safety hazards (if funds and means existed for such a program) and a condition had existed long enough that a reasonable inspection should have led to the discovery of the condition and its dangerous character.

I believe a legal basis exists to hold CalTrans liable. If injury is caused in the future by falling concrete, CalTrans will most certainly be held accountable. Let’s hope it doesn’t come to that.

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. Even insignificant damages will implicate a legal right of action, although the recovery of damages is generally be proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a major caveat to this general rule: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect in your jurisdiction. Additionally, even when no local ordinance exists, it would likely be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or, in the alternative, to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In the case presented here, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance. As for claiming negligence and seeking to recover non-economic losses, I would recommend speaking with an experienced trial lawyer to assist in making the case.

This week’s question comes from Jannette M., who asks:

Q: “During the recent storms, I had a neighbor’s tree fall onto my roof and part of it came into the bedroom where my son was sleeping. Thank God my son suffered only minor physical injuries, which required only an ER visit and a sling, but now he is afraid to sleep alone and has been having nightmares. The tree is out by the sidewalk. I know it’s not on my property because of where it is located on his side of the fence. I also saw on the news where a woman was crushed and killed in her car by a falling tree/branch. What is the law on this kind of thing? This tree has been a sore subject between us as it has been hanging over my yard for years causing lots of leaves, branches and other junk to fall on the roof, clog the gutters, damage my roses and nearly landed on my car. I have spoken with my neighbor about this on several occasions including the last major storms several years ago, when another limb fell on the fence. He repaired the fence, but didn’t do anything to trim the tree or otherwise make it safe. The branch that fell on my house was from the same “crotch” which showed rot after the prior branch came down. The only thing that has been done to the tree is it was cut one time, about a year ago, by the city, because it was blocking a stop sign. When I confronted my neighbor, he said that he didn’t think he owed me anything saying that it’s probably a city tree and even if it wasn’t, it was an “Act of God.” I have reported it to my homeowner’s insurance which stated that it would repair the property but that my insurance did not provide compensation for the personal injuries suffered by my son. Does my son have a right to collect compensation for his physical and emotional injuries and if so, from whom?

A: Dear Jannette, what a terrible and frightening ordeal. Thank God your son was not more seriously injured or killed. I have handled several falling tree death cases in my career and in each instance they were preventable if only the ailing tree had been trimmed or cut down before a storm caused fatal consequences.

Each city has separate ordinances regarding tree maintenance along the roadway/sidewalk. If the tree is very close to the road/sidewalk, then a city ordinance may require the adjacent landowner to maintain the tree. Some trees are exclusively maintained by the city. If this occurred in San Francisco, The City may be liable for failure to maintain the tree. In 2016, the voters passed Proposition E, StreetTreeSF which amended the City Charter to transfer responsibility for the care of the City’s 124,000-plus trees and surrounding sidewalks from property owners to Public Works. The law took effect July 1, 2017 and provides for $19 million to be set-aside annually in the City’s General Fund to fund StreetTreeSF.

The City has prioritized pruning trees based on safety considerations, to correct structural flaws and to gain necessary clearances for overhead wires, traffic signs and signals, adjacent buildings and traffic flow. If you are in San Francisco, the tree trimming around the sign, if it occurred since July 1, 2017, may have been part of the StreetTreeSF priority trimming program.

For the City to remove a tree, unless it creates a dire emergency, the City follows a public notice process before the tree is cut down so citizens can voice their concerns including opposition to the removal of the tree or requesting trimming instead of removal. An individual can still prune their own tree as long as it is undertaken in accordance with the June 27, 2006 CCSF Pruning Standards.

If the City is responsible for maintaining this tree they may be held responsible for the damage caused to your son under the doctrine of Dangerous Condition of Public Property. Under this doctrine a public entity may be responsible for injuries caused by non-trivial defects in public property that create a foreseeable risk of harm, if the City knew, or should have known with reasonable diligence, about the defect with sufficient time to remedy it. Here, as the tree had been trimmed previously by the City, a suggestion of knowledge is raised as they would have been physically present, examined and evaluated the tree, and trimmed it. If the hazard/rot was in existence at that time, and the City did not remedy it, liability may attach. Additionally, if the City arborists did something in trimming the tree that increased the risk of the tree falling on to your house, such as trimming most of the weight from only the street side, they may be held liable under a simple negligence theory.

Next week, I will provide an analysis of the facts assuming the tree was on private property, away from the street right-of-way, where the examination centers on the private landowner’s responsibility.

Today’s question comes from Jane in Portola Valley who asks, “We were bike riding in Marin and we were going to stop in Samuel P. Taylor Park to have a bite to eat and rest before continuing our ride to Point Reyes. I hit a bump in the road and was thrown from my bike. I landed on my head and suffered pretty bad cuts on my face and shoulder and broke my forearm. The bump was pretty big and wasn’t really visible to me as the sun was directly overhead. After I fell, the police came and the park ranger walked over and said that I wasn’t the only one to fall there. Do I have any legal recourse?”

Jane, your question is not an easy one to answer with so little information because so much of its legal success would depend on facts, such as whether your fall took place inside or outside of park boundaries, a fact which would determine both the relevant agency that might be responsible and the rule for evaluating its responsibility. Whether inside the park or on the highway, your injury occurred on public property and is therefore subject to the “dangerous condition of public property” doctrine, codified in the California Government Code. This doctrine addresses injuries that happen on public property including sidewalks, highways, roadways and the like, and limits the situations under which the government may be held liable for any dangerous conditions.

If you were already within the park’s boundaries, your case would depend on application of the Government Code Section 831.4. Under this rule, the government is not liable for injuries caused by the condition of an unpaved road that is not a city, county, state or federal street or highway and provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas. Likewise a government entity is immune for injury on any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as the public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety.

In your case, if you were within the park when you were injured, it can be argued that the trail immunity does apply. If that be the case, then a counter argument can be made that the entity had an obligation to provide warning of the condition, since the ranger was aware that others had fallen there before.

If you were not within the park, Government Code Section 835 applies. Liability depends on whether an injured party can prove four elements. First, the relevant property must have been in a dangerous condition at the time of the injury. In your case, since you came upon a bump preexisting on your path, this element appears to be satisfied.

The second and third elements overlap considerably: they both require that, in addition to proving that the dangerous condition actually caused the injury, the injured party must prove that the risk of that type of injury was reasonably foreseeable to the government before the injury occurred. In your case, the bump in the road in fact caused your fall, and it was also reasonably foreseeable to the government that a bump in the road might cause someone to fall. The very reason that a bump in the road is considered dangerous in the first place is largely due to the increased risk of road users falling!

Fourth, an injured party must show that either: (a) the dangerous condition was created by a government employee’s negligent act or omission; or (b) the relevant agency had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. This element would likely be at issue in your case.

Government Code section 835.2 defines what constitutes actual and constructive notice. Actual notice is when the entity in fact already knew of the existence of the condition and knew or should have known of its dangerous character. Constructive notice, by contrast, requires the injured party to establish that the condition had existed for such a period of time, and was of such an obvious nature, that the public entity, in the reasonable exercise of due care, should have discovered the condition and its dangerous character. This takes into consideration whether or not the entity had an inspection system which would have, or should have, identified the condition.

In your case, the park ranger admitted that he knew, or had actual notice of, the bump in the road because you were not the first victim of its dangerous character. The determinative questions, therefore, would be: (1) whose jurisdiction the bump was in and, if not the park’s, were they also aware of the prior accidents; (2) how long ago the other accidents had been and when the relevant agency was made aware of their cause; (3) the practical factors involved in making the road safe; and (4) whether the intervening time was sufficient to have taken measures to protect against the dangerous condition.

Finally, an injured party must also defend against the government’s possible counterarguments. For instance, they must prove that the condition was not merely a trivial defect, that it presents a substantial risk of harm. Courts may decide as a matter of law that a condition is trivial and, in many cases, have done so. For example, a court held that a ½ inch deviation in sidewalk panels trivial as a matter of law. However, the only guidance given to the jury in deciding whether a condition rises to the dangerous threshold is rather circular and cryptic: a substantial risk of harm is one which is more than trivial. Therefore, without additional information as the size, shape, height, etc., it is impossible for me to opine in your case whether the bump in the road would be considered trivial or not.

An injured party must also rebut a government defense that the defect was “open and obvious.“ If a dangerous condition is so significant that it would be open and obvious to a reasonably attentive user, then the government can claim that the user was negligent for not seeing and avoiding the condition. In your case, I would need more information to determine whether the “open and obvious” defense would have merit, such as the time of day when this occurred, weather conditions, shadows from trees, and other factors that would have impaired your ability to appreciate the hazard before you hit it.

We have handled hundreds of dangerous condition cases over the years involving bikes, cars, muni trains, sidewalks, escalators, stairs, highways, city streets and the like. Because of the intricacies of the statutes, these cases are quite complex and should only be handled by trial lawyers with significant experience in this area. I suggest that you get photos of the area, including ones showing dimensions with a ruler in place, as well as lighting conditions at the time of your fall, and present those to a trial lawyer who can analyze whether or not you have a case worth pursuing.

Falling Debris: Negligence In Construction Zones

This week’s question comes from Dawn E. in the Mission District who asks: “I live on 23^rd Street near the construction site where two pedestrians were injured when materials were blown off the job site and onto them as they were walking by on the sidewalk. It is unfathomable that this could happen. What is the law on a situation like this?”

You Can Do Something About These #$@&* Potholes and Broken Sidewalks! 311 It!!

Daniela from Bernal Heights told me the other day about a pothole in a crosswalk in her neighborhood that never seems to get fixed and keeps getting worse. She said she is afraid a bicyclist or pedestrian is going to get seriously injured and wondered why The City has not repaired the crosswalk.

Daniela: I am glad you are alarmed. You should be. It is so important to prevent injuries and to keep people safe. Fortunately, you can turn your concern into action. You can take steps to help make San Francisco better for older people, disabled people, people on bicycles, and everyone else. You can report dangerous conditions before people are injured.

Attorney Chris Dolan Calls For Criminal Charges To Be Brought Against Ghost Ship Warehouse Owner

On June 5, 2017, Ghost Ship master tenant Derick Almena and his second-in-command, Max Harris, were arrested and charged with 36 counts of involuntary manslaughter in conjunction with the December 2, 2016, Ghost Ship fire that killed three dozen people. “The paying guests at the event were faced with a nearly impossible labyrinth of the defendants’ making to get out of that building,” said Alameda County District Attorney Nancy O’Malley at a news conference. “Almena and Harris’ actions were reckless and they created the high risk of death.”

Oakland warehouse fire, Ghost Ship fire — 1305 31st Avenue at International Boulevard in the Fruitvale neighborhood was the location of the fatal Oakland warehouse fire

On the night of Friday, December 2, 2016, 36 people perished, almost all young adults, and many more suffered physical and psychological injuries in a horrific fire that consumed the Ghost Ship building in the Fruitvale District of Oakland. The fire started near midnight during an electronic music show in the converted warehouse. It was the deadliest structural blaze in California since the 1906 San Francisco earthquake and fire.

San Francisco Sidewalk Slip And Fall Lawsuit: Property Owner Or City Responsible?

Daryl from San Francisco writes: “Chris, I recently moved to The City. Last week I exited my apartment building from a side door. It was at night and light above the door was out. I didn’t notice that the sidewalk was broken and uneven. I tripped and fractured my wrist. I spoke to the apartment manager. She said to file a claim with The City because roots from a tree cracked the sidewalk. What should I do?”

Daryl, I hope your wrist fully heals. It appears two dangerous property conditions – the exterior light not functioning and the uneven sidewalk – may have caused your fall.