Gophers Can Cause Trip and Falls

By Michael Reiter, Attorney at Law.

I went out for another walk today, in the late afternoon.  I love to see California native wildlife, like a California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma.  I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get a picture of his head.  Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.

Gophers can cause damage to lawns.  They can also damage parks.  When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park.  Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of  public property cause of action, but with a private landowner, the standard is typically negligence.  The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization.  If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

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.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

Redlands CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

What is a “dangerous condition of public property?”

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. California 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.

California 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.

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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

      Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?

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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St. #517

      Redlands, CA 92373-5235

T: (909) 296-6708

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

How to Answer Form Interrogatory Number 17.1 on Personal Injury Form Interrogatories

By Michael Reiter, Attorney at Law.

Discovery is an important part of any personal injury case.  Form Interrogatory Section 17.0 is labeled Responses to Request for Admissions.  This is commonly served in a personal injury case in conjunction with a Request for Admissions.  The text of Form Interrogatory Number 17.1 is:

Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.  Form Interrogatory 17.1 California Judicial Council Form DISC-001 (Revised January 1, 2008), Page 7 of 8.

 

The words in boldface capitals in the interrogatories are defined in Section 4 of Form Interrogatories-General.   ADDRESS is defined as “street address, including the city, state and zip code.”  PERSON means “a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or public entity.”  DOCUMENT means “a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, photostats, photographs, electronically stored information, and every other means of recording upon a tangible thing and form of communicating or representation, including letters, words, pictures, sounds, or symbols, or combinations of them.”

How, then, does a plaintiff or defendant answer Form Interrogatory Number 17.1?  Here is an example.   If the Request for Admission, Number 9 is “Please admit that YOU own the property where the PLAINTIFF was injured on the date of the INCIDENT,” and you did not admit the Request for Admission, the response would be

Response to Form Interrogatory Number 17.1:

No.

(a) Request for Admissions, Set One, Request 9;

(b) Defendant did not own the property where the Plaintiff was injured on the date of the incident because Defendant had sold the property to Cr0ss-Defendant City of Rancho Muscupiabe,  on August 21, 2009;

(c) Defendant, 300 E. State St. #517, Redlands, California, (909) 296-6708  Cr0ss-Defendant City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

(d) Quitclaim deed, a recorded copy which is in possession of Cross-Defendant  City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

 

If each response to the Request for Admission is an unqualified admission, then the answering party must simply respond to Form Interrogatory 17.1 in this way.
Response to Form Interrogatory Number 17.1:

Yes.

This interrogatory is an important tool because it explains why a party has denied a Request for Admissions, and allows the asking party to detail why the party is not admitting to certain facts.

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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

Address: 300 E. State St. #517 Redlands CA 92373-5235

Telephone: (909) 296-6708

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Vicarious Liability of an Owner for Permissive Use in California Motor Vehicle Accidents

By Michael Reiter, Attorney at Law.

When I was the Assistant City Attorney of Redlands and a Deputy City Attorney in the City of San Bernardino, I handled a fair number of motor vehicle accident cases on behalf of the City and its employees.  These cases included a police officer who allegedly ran a red light, a police officer that allegedly rear-ended a car on a freeway ramp, a police officer that allegedly sideswiped a car in a carpool lane,  an animal control officer who allegedly rear ended a woman, a city employee that allegedly backed up into a man turning into his driveway, a pair of citizen volunteer patrol members who allegedly turned into a woman on a bicycle, and a parks employee who allegedly ran over a man sleeping in the park.  The injuries claimed ranged from soft tissue injuries to major hip injuries.  I also defended cities in dangerous condition of public property cases involving motor vehicles and catastrophic injuries, including the death of a motorcyclist, and another one where the passenger on a motorcycle was injured when the motorcyclist ran a stop sign.

A defense to the owner of a vehicle, where the driver and owner lack an employee-employer or principal-agent relationship, is  Vehicle Code section 17151(a).   Typically, the cases listed above involved a a employer-employee relationship. Vehicle Code section 17151(a) reads:

The liability of an owner, bailee of an owner, or personal representative of a decedent imposed by this chapter and not arising through the relationship of principal and agent or master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one person in any one accident and, subject to the limit as to one person, is limited to the amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident.

Also not included within this statute is negligent entrustment or negligent maintenance of the vehicle by the owner.  There is no limit on the liability of an owner under common law.

In a very recent California Supreme Court case, the Court held that the “respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment.”  Diaz v. Carcamo (2011) 51 Cal.4th 1148, 126 Cal.Rptr.3d 443, 449.  “If the employee did not drive negligently, and thus is zero percent at fault, then the employer’s share of fault is zero percent. That is true even if the employer entrusted its vehicle to an employee whom it knew, or should have known, to be a habitually careless driver with a history of accidents.”  Id. at 453-454.

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.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517

     Redlands CA 92373-5235

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com