Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?
September 26, 2011 Leave a comment
By Michael Reiter, Attorney at Law.
A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability. Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.
A “dangerous condition” is “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 foreseeable that it will be used.” Government Code § 830(a). A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition. Government Code §§ 830, 835.
What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities? The scenarios I have seen as an attorney have included:
1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced. The plaintiff tripped and fell.
2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.
3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.
4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.
5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.
6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.
Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”
“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.” Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.
Obviously, ownership is a key fact to prove. Control can be more difficult. In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act). Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.
Also, conditions of adjacent property can make public property hazardous. In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835. Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.
Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action. In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
About Michael Reiter, Attorney at Law
Michael Reiter, Municipal Attorney. Partner with Cole Huber, LLP in Ontario, Roseville California 