C.A. 2nd

The Second Appellate District affirmed a judgment. The court held that a magnolia tree planted on a grassy roadway median some seven feet from the curb could not, as a matter of law, be deemed to constitute a danger to persons traveling the roadway at reasonable speeds.

While driving on Colorado Boulevard in Los Angeles, Rostislav Shnayder, who was traveling some 30 miles per hour above the posted speed limit, veered into a car driven by Cristyn Cordova, who was also driving at about 30 miles per hour above the speed limit. The impact pushed Cristyn’s car off the roadway and onto the grassy median, where it struck a large magnolia tree. Cristyn and three of the car’s four passengers were killed. Shnayder was convicted of vehicular homicide.

Antonio and Janis Cordova, parents of three of the decedents, sued the City of Los Angeles, contending that the placement of trees on the median constituted a dangerous condition of public property. They argued that principles of roadway design and maintenance called for a clear zone free of obstacles.

The city moved for summary judgment. The city offered evidence that the median strip was 15.5 feet wide and thus complied with city engineering department requirements for a minimum width of 14 feet. Further, there was a seven-foot clearance between the magnolia tree and the face of the curb, which clearance also exceeding city engineering department requirements.

The city contended further that, under the American Association of State Highway and Transportation Officials (AASHTO), “guidelines for the provision of a clear zone [did] not apply [because those] guidelines were developed to apply to state highways and to high-speed generally rural roadways with limited access.” The relevant segment of Colorado Boulevard was low speed and high access with local streets regularly intersecting it. According to AASHTO, immovable objects may be positioned in low speed roadways as long as they are at least 18 inches from the face of the curb. The city’s expert opined the magnolia tree was not hazardous to drivers traveling at or near the speed limit.

The city offered evidence that the speed limit on Colorado Boulevard was 35 miles per hour. At the time of the collision, Cristyn’s car was traveling 68 miles per hour and Shnayder was traveling 66 miles per hour.

The trial court granted summary judgment to the city.

The court of appeal affirmed, holding that the city showed, as a matter of law, that the magnolia tree did not constitute a dangerous condition of public property.

The court explained that a public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. As relevant here, Gov. Code §835 states that in order to recover in an action against a public entity under that statute, a plaintiff must plead and prove: “(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.”

Section 830 defines a “‘[d]angerous condition’” 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.”

Section 830.2 explains further that “[a] condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”

Thus, property is not “dangerous” within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.

The issue here was whether a large tree in a median that was at least seven feet away from the street’s traffic lanes could constitute a dangerous condition of public property even when persons driving on the street were exercising due care. The court concluded as a matter of law the magnolia tree in the median strip did not constitute a dangerous condition. There was nothing about Colorado Boulevard that would cause a person driving at or near the speed limit to suddenly veer into the magnolia trees. The Cordovas did not contend the view of the median was in any way obscured such that the tree was a surprise obstacle in the roadway, or that the median and trees caused cars to travel at unsafe speed, such that persons using the roadway with due care would be hit by such vehicles.

On this record, the Cordovas could not show that the magnolia tree contributed to Shnayder’s criminally negligent driving.