How Do I Prove That The Government Had Knowledge Of A Dangerous Condition On Its Sidewalk Or Roadway?

Cities all the time have dangerous conditions on their sidewalks, roadways, and other governmental land such as parks.

Well, what if there is this dangerous condition that makes you fall or injure yourself in some way?

Suppose the City allows its sidewalk to be dangerous, which causes you to fall and get injured… can you then take action against the City? If so, what do you need to prove?

The California Court of Appeal, First Appellate District, Division One, recently decided the case Restivo v. City of Petaluma that addresses this.

This case is cited as 111 Cal. App. 5th 267.

The General Law

To establish liability under Government Code section 835, a plaintiff must prove that:

• at the time of the injury, there existed a dangerous condition on the public property,

• that created a reasonably foreseeable risk of the kind of injury that occurred, and

• that proximately caused the injury.

What Is A Dangerous Condition?

This is what the Court has said: A dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way that it foreseeably endangers those using the property itself.

Public property has also been considered in a dangerous condition 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.

However, the mere fact that an accident occurred is not itself evidence that public property was in a dangerous condition at the time of the injury.

Things You Must Know: Plaintiff Must Prove Cause Or Notice Of The Dangerous Condition

A plaintiff must prove that the negligence or wrongful act of a public employee created the dangerous condition, or that the public entity had actual or constructive notice of the condition with sufficient time before the injury to protect against it.

How does the Plaintiff establish this notice?

• To establish actual notice, there must be some evidence that employees had knowledge of the particular dangerous condition at issue.

This is what the Courts have held about it:

It is not enough to show that employees of the public entity had a general knowledge that the condition may sometimes occur.

• To establish constructive notice, the plaintiff must prove that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Back To Restivo

What Happened Here In Restivo?

The Plaintiff alleged that a wheel of her skateboard got stuck in a large crack in a residential street [Noriel Lane in Petaluma, California], which caused her to fall and suffer a serious injury to her arm.

The Plaintiff describes the crack or pothole as approximately 6–9 inches long, 1–2 inches deep, and 4–7 inches wide and very obvious, as in: “[i]f you were walking … , you would see it.”

The City of Petaluma moved for summary judgment on numerous grounds, including that it had neither actual nor constructive notice of the alleged dangerous condition.

The Plaintiff here argued:

…the City maintained records of a Pavement Management Report. That within the City’s Transportation Commission and within the appendix of City maps, one shows Noriel Lane shaded in orange, which indicated “a Pavement Condition Index category” of “‘poor’” “as of January 8, 2020[,]”, which was before the Incident here.

The Plaintiff also asserts that the City “admits” “that before [her] injury, the City applied a ‘crack seal’ to the pavement, which simply stops water intrusion and does not fill potholes” and that “after her injury” the City “finally repaved the street using a slurry seal.”

The City of Petaluma presented evidence that it had no knowledge of other incidents or accidents occurring on Noriel Lane in or near where the plaintiff fell.

According to the City: it had maintained records of complaints about city streets for more than 10 years and, during that time, it received no complaints about Noriel Lane.

What Happened Earlier With The Trial Court?

The Trial Court rejected all of the City’s arguments in support of its motion on Plaintiff’s public property dangerous condition claim….

So the Court agreed that this crack was a dangerous condition.

However, the Trial Court ruled that there was no triable issue of fact that the City had actual or constructive notice of the alleged dangerous condition.

The court noted the evidence that the City had reviewed its complaint records about road conditions, but found none about the alleged dangerous condition.

Jump to the end of why the Trial Court held this, saying that Plaintiff only asserted her knowledge facts “based on mere speculation and conjecture.” But we will get to that soon.

The Court Here Analyzes The 2001 Case Ortega v. Kmart Corp. Cited As (2001) 26 Cal.4th 1200

Ortega is a major case used in dangerous premises cases.

In Ortega:

The plaintiff had slipped on a puddle of milk next to the refrigerated dairy section of the store, but presented no evidence about when the spill occurred or when any store employee last inspected that section of the store.

However, the manager admitted that the spill could have been on the floor for up to two hours before any employee saw it.

The Supreme Court ruled in favor of the Plaintiff, denying Defendant’s summary judgment motion on notice of the milk spill.

The Court explained:

“A store owner exercises ordinary care by making reasonable inspections of portions of the premises open to customers, and the care required is proportionate to the risks involved.
If the owner operates a self-service store, where customers are invited to inspect, remove, and replace goods on the shelves, ‘the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to protect against the possibility that such a customer may create a dangerous condition by disarranging merchandise’ and creating potentially hazardous conditions.”
Because the “owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.”

The high court then moved on to what evidence may create “an inference” that the owner failed to conduct an inspection within a reasonable period of time. It held that “if a plaintiff can show that the owner failed to inspect the premises within a period of time that was reasonable under the circumstances, the plaintiff could raise the inference that the defective condition existed long enough so that the failure to discover it was unreasonable.”

Back To Restivo

The Court of Appeal in Restivo disagrees with Ortega, saying this:

The present case bears no resemblance to Ortega. It does not involve a store owner’s liability to a business invitee. More importantly, the evidence regarding inspection and maintenance of city streets bears no remote resemblance to the evidence in Ortega about the timing of the store employees’ inspection of an aisle in front of the self-service dairy section.

So it distinguishes the dairy aisle in Ortega from the dangerous roadway in Restivo.

The End Of Restivo

The Court here affirms summary judgment in favor of the Defense and against the Plaintiff.

The Court of Appeal cites: “‘A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but must produce admissible evidence raising a triable issue of fact.’”

The Court says this:

“Plaintiff’s argument still lacks reference to any evidence that the City had actual or constructive notice of the dangerous condition, namely, the crack or pothole measuring ‘6–9 inches long, 1–2 inches deep, and 4–7 inches wide’ that allegedly caused her to fall off her skateboard.”

Key Takeaways

When litigating a case against a governmental entity, it may be crucial to seek documents that may show notice in various ways.

But then, if you have those documents, you may need to take additional steps to prove how the government had knowledge of the dangerous condition based on those documents, not just that the documents existed.