Dolan: Who’s responsible for ensuring road safety?

This week’s question comes from Matt G. in Mill Valley, who asks:

Q: “I am a bicyclist. It was wet on the roadway the other day and, as I was coming down Market Street near 11th Street, I encountered a series of railroad tracks in the road. My wheel got caught in them, causing me to fall and get serious road rash and significant bruising to my shoulder. This is really dangerous. Isn’t The City responsible to keep the roadway safe from these types of hazards? Can I sue Muni to try and get this changed?”

A: Matt, the question you ask involves the law concerning municipal premises liability which is a creature of statute. California law, Government Code section 835, makes a public entity, such as The City, liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition and that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.

Additionally, a plaintiff must demonstrate that either the injury (a) was caused by a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment which created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Pursuant to Cal. Gov’t Code § 835., A “dangerous condition” is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property … is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Government Code Section 830(a). “[A] claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” Cerna v. City of Oakland. (2008). A dangerous condition exists when public property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,” or “because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.” Bonanno v. Cent. Contra Costa Transit Auth. (2003).

California Government Code Section 830.6 provides a public entity with immunity for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or some other body or employee exercising discretionary authority to give such approval … if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design … or (b) a reasonable legislative body or other body or employee could have approved the plan or design. There are many other factors such as reasonable approval of the design before construction, changes in conditions, etc. which need to be analyzed on a case by case basis. As serious downside of these laws is that they act to immunize public entities and, therefore, eliminates any incentive for them to remove, improve, or warn against these conditions.

In the case of Morgan v. Peninsula Corridor (from which much of the language in this article originates), The United States Federal District Court, when examining a similar condition on Townsend Street, where a bicyclist got their wheel caught in a tract declared that the factors existed to provide The City with design immunity.

Therefore, in many of these bicycle trolley car track cases the Government can obtain design immunity. Each case depends on its own set of facts so, while the majority of these types of cases result in a dismissal in favor of The City, not all do. A skilled trial lawyer, with experience in handling these cases, should be consulted to determine if a case exists. Given the complexity of these cases, and the minor injuries you describe, I would hazard to guess most contingent fee lawyers would not take your case because the time involved in researching and prosecuting such a case, when considered against the risk of design immunity and the potential recovery, would not economically justify the representation.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

Christopher B. Dolan
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Christopher B. Dolan

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