Woodland Hills personal injury attorney, Barry P. Goldberg, is cautious about suing public entities because liability is statutory and can be difficult establish. However, in the right case, with the right experts, an aggressive personal injury attorney should not shy away from pursuing a worthy case merely because of these difficulties. Because the overwhelming number of cases against public entities is litigated, some attention must be paid to the significance of the injury in relation to the costs of pursuing the case.

Many people incorrectly believe that if you were injured on public property, that the public entity is automatically responsible. In fact, the burden is on the plaintiff to plead and prove that a dangerous condition existed at the time of the accident. This can be tricky and difficult when road markings, signals and distances contribute to a serious traffic accident.

As mentioned above, a public entity’s liability’s liability for a dangerous condition of its property is governed by statute. (Government Code § 815 et seq.; Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758(Cole).) In order to impose liability on a public entity pursuant to section 835, a plaintiff must establish “the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
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.”

A dangerous condition within the meaning of the statutory scheme 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 or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830(a).) The due care analysis does not hinge on the conduct of the plaintiff or any third party at the time of the accident. “The status of a condition as ‘dangerous’ for purposes of the statutory definition does notdepend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons whowere exercising due care.” (Cole, supra, 205 Cal.App.4th at p. 768; see also CACI No. 1102 [whether “the property is in a dangerous condition is to be determined without regard to whether [the plaintiff or third party tortfeasor] exercised or failed to exercise reasonable care in [his/her] use of the property”], emphasis added.)

To establish a “dangerous condition,” a plaintiff must allege and prove at least one physical characteristic of the property that is defective and foreseeably endangers users of the property. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148-151; accord, Cole, supra, 205 Cal.App.4th at p. 759.) The physical characteristic need not be an obvious physical feature that is damaged or deteriorated. The physical characteristic may be the location of the property, “‘the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.’ [Citation.]” (Bonanno, at p. 149; Cole, at p. 759.) And, conditions existing on property adjacent to public property may contribute to the public property being deemed dangerous if those conditions expose “‘those using the public property to a substantial risk of injury.’ ” (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 31 (Bakity), quoting the Cal. Law Revision Com. com. to 32 West’s Ann. Gov. Code (1995 ed.) foll. § 830, p. 299; accord, Bonanno, at p. 148.)

If the condition of public property “creates a substantial risk of injury even when the property is used with due care, the [public entity]gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party’s negligent conduct to inflict injury.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718-719, emphasis added; accord, Bakity, supra, 12 Cal.App.3d at p. 32 [“Negligence of a third person does not, as a matter of law, exonerate the public entity”].) Whether public property is dangerous is judged from the perspective of whether it presents a substantial risk to foreseeable users acting with due care, not whether a given plaintiff or third parties were acting with due care at a particular time. (Cole, supra, 205 Cal.App.4th at p. 768.)

As can be seen from the case law, it takes a team of professionals in any case against a public entity to establish the requisite “dangerous condition” for successfully bringing suit. Expert testimony is essential to detail why a particular condition is dangerous and how that condition caused or contributed to the accident.

About the author

Barry Goldberg