Legal Question in Personal Injury in California

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MARK J. MEYERS (SBN 69191)

MARK W. BURNETT (SBN 242537)

LAW OFFICES OF MARK J. MEYERS

16168 BEACH BOULEVARD, SUITE 140

HUNTINGTON BEACH, CALIFORNIA 92647

(714) 848-6622/FACSIMILE (714) 848-6869

ATTORNEY FOR PLAINTIFF: MARY K. ZELAZO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE, CENTRAL JUSTICE CENTER

MARY ZELAZO,

Plaintiff,

vs.

CITY OF IRVINE, IRVINE APARTMENT COMMUNITIES, and WESTERN NATIONAL CONTRACTORS DOES 1 to 25,

Defendants.

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Case No.: 07CC02149

[Assigned for all purposes to Hon.

Andrew Banks, Dept. C6]

PLAINTIFF�S MEMORANDUM OF

POINTS AND AUTHORITIES IN

OPPOSITION TO DEFENDANT CITY

OF IRVINE�S MOTION FOR SUMMARY

JUDGMENT/SUMMARY

ADJUDICATION

[Filed concurrently with Plaintiff�s Separate Statement and List of Exhibits]

Hearing Date: March 14, 2008

Time: 1:30 p.m.

Dept.: C6

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On the morning of November 24, 2005, Plaintiff MARY ZELAZO was severely injured after slipping on a wet and muddy public sidewalk in the City of Irvine, California.

At approximately 8:15 a.m., Ms. Zelazo disembarked the OCTA bus at the Alton/Irvine Center Drive stop and began her morning walk on the south side of the eastbound sidewalk on

Alton Parkway near Meridian. Ms. Zelazo estimates that it would take her approximately one hour to walk from the bus stop to Irvine Regional Medical Center, her employer at the time. She wore flip-flop sandals for comfort and decided to walk on the shady side of Alton Parkway as this particular morning was sunny and warm.

As she walked towards work, she encountered a large patch of mud and sludge that covered the public sidewalk. The curb and apron of the sidewalk were also wet. As Ms. Zelazo attempted to very carefully walk through this area, she lost her footing, suddenly saw her feet in the air, and fell to the ground. As a direct result of the fall, Ms. Zelazo chipped and broke several teeth and broke her left hip. Both the fire and police department responded to the scene of the incident and Ms. Zelazo was transported to a local hospital for treatment and surgery to her left hip.

It was determined that Ms. Zelazo fell approximately 272 feet east of the east curb-line of Meridian and 3 feet south of the south curb-line of Alton Parkway. The sidewalk was adjacent to a large strip of grass that ran the distance of the sidewalk. Next to the grass was a chain link fence lined with sandbags that acted as a barrier to a large multi-level, multiple unit construction project - the Village Apartment Homes at the Irvine Spectrum.

Irvine Police Department Sergeant Robert Warren testified that he conducted a liability assessment and took several digital photographs of the area where the incident occurred. He indicated that there were green steaks in the mud, which appeared to be algae. He deemed the sidewalk to be �very slippery.� Sergeant Warren contacted and authorized Lakeside Tow to assist in the clean up on the sidewalk. He witnessed Lakeside tow shovel mud off the public sidewalk back up onto the grass and apply an absorbent on the wet areas that appeared to have algae. Sergeant Warren also contacted the City of Irvine Public Works department to follow up with the cleanup of the absorbent and the condition of the sidewalk.

Robert Tracy, the City of Irvine Public Works Superintendent testified that the city was responsible for the sidewalk, and that the city contracts with Central Coast Grinding, which inspects and grinds concrete surfaces. He further testified that Central Coast neither remedies

nor reports conditions such as standing water or algae on the public sidewalks to city employees. Additionally, Mr. Tracy testified that the City of Irvine does not have an inspection program in place to inspect for hazards such as standing water or slippery conditions and that inspections of public sidewalks within the CITY OF IRVINE limits are conducted on a seven-year basis.

Based upon the following arguments, Plaintiff respectfully requests that this Motion for Summary Judgment fail because there are clear triable issues of material fact. Specifically, the City of Irvine had constructive notice of the dangerous condition and had a duty to conduct reasonable inspections of its public sidewalks. The particular sidewalk where the incident occurred was adjacent to a massive construction site, yet the last time the city has records of an inspection by of that particular sidewalk was May 2005, some six months prior to the incident. Said inspection was conducted by Central Coast Grinding who would not report or remedy issues other than concrete grinding concerns.

II. LEGAL ARGUMENT

A. If There are Issues of Material Fact, Summary Judgment does not Lie.

Pursuant to California Code of Civil Procedure, �437c, Summary Judgment may

be granted where it is shown that the action has no merit or there is no defense to the action or proceeding. The court must determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law�" Cal. Code Civ. Proc., �437c (a). The requirement that there be "no triable issue of material fact" means that summary judgment can be granted only where the essential facts are either conceded or beyond dispute. If there is one single material fact in dispute the motion must be denied. The result is that summary judgment lies only where the opposing party has no case at all, not merely a weak case. 24 Hour Fitness, Inc. v. Sup. Ct. (Munshaw) (1998) 66 CA4th 1199, 1215, 78 Cal.Rptr. 2d 533, 542, fn. 12. �Inasmuch as summary judgment is a drastic procedure and should be used with caution[], the moving papers are strictly construed, while the opposing party�s papers are liberally construed[]. Sanchez v. Swinerton & Walberg

Company et al., (1996), 47 Cal.App.4th 1461, 1465; 55 Cal. Rptr. 2d 415 (citations omitted)

Adjudication of the present case turns on whether the condition complained of had existed for a sufficient length of time to constitute constructive notice and whether a reasonable time to remedy the condition had existed for Defendant, CITY OF IRVINE to correct the defect. Given the large scale development of over 1500 apartment homes contiguous to the area where the incident occurred, coupled with the mud and wet sidewalk that measured over 200 feet, and the fact that the CITY OF IRVINE does not have an inspection program in place to inspect for hazards such as standing water or slippery conditions, the CITY OF IRVNE failed to exercise due care in that it should have discovered the dangerous condition of the sidewalk prior to the incident. The CITY OF IRVINE failed to conduct reasonable inspections of the sidewalk; it had constructive notice and therefore, this Motion for Summary Judgment must fail.

B. Plaintiff Concedes Negligence Cause of Action

Plaintiff concedes that the Negligence cause of action as against the CITY OF IRVINE has no statutory basis and therefore the Plaintiff will not file any opposition as to this cause of action. However, as discussed below, Plaintiff vigorously opposes the Motion for Summary Judgment against the CITY OF IRVINE pertaining to the dangerous condition of public property and argues that they had constructive notice thereof.

C. The City of Irvine had Constructive Notice of the Dangerous Condition of the Public Sidewalk Which Existed for a Period of Time and was of Such an Obvious Nature that it Should have been Discovered in Due Care through Inspections.

Government Code Section 835 provides condition of liability of a public entity and states: ��a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that (1) the property was in a dangerous condition at the time of the injury, that (2) the injury was proximately caused by the dangerous condition, that (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was

incurred, and either:

(a) 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

(b) 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.�

1. At the time Ms. Zelazo fell, the Sidewalk was in a Dangerous Condition

In Sebern v. City of Riverside (1941) 42 Cal.App.2d 701, 703, photographs in evidence were alone held to justify the inference that �an extremely dangerous hazard for pedestrians� existed. The Court further held the photographs in evidence disclose such a conspicuously

dangerous situation that the court would be justified in finding that the city had constructive

notice. Id. Furthermore, in Laurenzi v. Vranizan (1945) 25 Cal 2d 806, a sidewalk defect was not of such a minor character, as a matter of law, as to be insufficient to impose liability on the defendant city, where its inspector admitted that if he had seen a condition of the sidewalk such as that testified to and pictured in the photographs, he would have considered it hazardous and as requiring a correction. Id. at 812.

Here, like in Sebern, digital photographs of the sidewalk taken by Irvine Police Sergeant Robert Warren the day of the incident depicting an extremely dangerous condition for pedestrian traffic. Sgt. Warren noted in his liability report and testified at his deposition that there were green algae streaks in the mud on the sidewalk and that it was �very slippery.� Furthermore, Sgt. Warren authorized Lakeside Tow to shovel mud off the sidewalk and lay absorbent on the green and wet parts of the sidewalk. Following the courts holding in Sebern, given the photographic evidence coupled with Sgt. Warren�s testimony reveal a conspicuously dangerous condition, such that the CITY OF IRVINE had constructive notice of the dangerous condition.

Like Laurenzi, City of Irvine�s Public Works Superintendent, Robert Tracy viewed the photographic evidence and testified that if there were dirt or mud on the sidewalk, it would be an issue that needed to be addressed from the Public Works Department standpoint. Furthermore, Plaintiff�s expert, Mr. Kurt Grosz reviewed the photographs, and the testimony of several deponents and opined that the sidewalk was covered with mud with the presence of algae and standing water and was a dangerous condition when Ms. Zelazo slipped and fell.

As such, there can be no dispute that at the time Ms. Zelazo fell, the sidewalk was a dangerous condition.

2. Ms. Zelazo�s Severe Injuries were Proximately Caused by the Dangerous Condition

A plaintiff seeking to recover for injuries sustained as a result of an alleged dangerous

condition must establish�that the injuries were proximately caused by the condition. [Gov. Code � 835; see Childs v. Santa Barbara (2004) 115 C.A.4th 64, 74 (evidence supported finding that a county�s failure to maintain a sidewalk in a safe condition proximately caused a child�s injury falling from a scooter.)]

Here, Ms. Zelazo was walking to work on the shady side of Alton Parkway when she encountered the wet muddy area of the sidewalk. She attempted to very carefully walk through the area. She did not see any algae in the mud prior to slipping and falling to the ground. The City of Irvine was well aware of the massive construction project adjacent to the subject sidewalk, yet it failed to safely maintain the sidewalk. Ms. Zelazo�s broken left hip and loss of several teeth was a direct result of her fall proximately caused by the dangerous condition of the public sidewalk.

3. The Dangerous Condition Created a Reasonably Foreseeable Risk of the Injuries Ms. Zelazo Sustained

A city has a duty to keep sidewalks in safe condition and is directly liable to pedestrians for failing to correct a dangerous condition of which it has notice, and it is not relieved of responsibility in this regard merely because condition was created or maintained by abutting property owner who might also be liable to pedestrians for injuries resulting therefrom. San Francisco v. Ho Sing (1958) 51 Cal 2d 127, 330 P2d 802.

Here, the presence of algae in the mud and standing water was a dangerous condition on the public sidewalk. Whether the mud and standing water came from the adjacent construction project is a material fact for the jury to determine and at this juncture is irrelevant. The City maintains control and responsibly for the sidewalk regardless. The City of Irvine�s Public Works Department is responsible to make sure that the City landscaping looks green and healthy, roads, walkways and bike trails are safe. The algae growing in the mud existed for an appreciable amount of time which caused the sidewalk to become very slippery. As such, it was reasonably foreseeable that a pedestrian such as Ms. Zelazo would sustain severe injuries as a result of the dangerous condition present.

4. City of Irvine had Constructive Notice Under Gov. Code 835.2(b)

Government Code Section 835.2(b) provides that �a public entity had constructive notice of a dangerous condition within the meaning of Gov. Code 835(b) only if the plaintiff establishes 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.� Furthermore, admissible evidence of due care includes but is not limited to:

(1) Whether the dangerous condition would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe for public users,

(2) Whether the public entity maintained and operated such an inspection system with

due care and did not discover the condition.

The Court in Perry v. City of San Diego (1947) 80 Cal.App.2d 166, 170 follows Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 811-12 and quotes from Kirack v. City of Eureka (1945) 69 Cal.App.2d 134 as follows: �the rule is well established that constructive as well as actual knowledge of a dangerously defective sidewalk or street may render a municipality liable for

damages for injuries sustained on that account when such defects should be reasonably anticipated by the officers in charge, or when reasonable inspection would have disclosed the dangerous condition.�

In Fackrell v. City of San Diego, (1945) 26 Cal.2d 196, 206-7, the Supreme Court of California stated that the rules governing constructive notice require reasonable diligence in

making inspections for the discovery of unsafe or defective conditions. (See also Laurenzi v. Vranizan, infra). Where the authorities who have planned and constructed an improvement have knowledge of circumstances which reasonably might be expected to result in a

dangerous condition as a natural and probable consequence of the work, such authorities are put upon inquiry, and it follows that it is incumbent upon them to make inspections commensurate in scope with the nature and character of their knowledge and the peril which should be avoided. Fackrell 26 Cal.2d at 206. As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts. Rafferty v. City of Marysville (1929) 207 Cal. 657, 661.

In the case at bar, given the algae in the mud on the subject sidewalk, the dangerous condition existed for an appreciable period of time and was of such an obvious nature that the City of Irvine, in the exercise of due care should have discovered the dangerous condition. (See Declaration of Kurt Grosz).

Furthermore, the City of Irvine had no inspection program in place to inspect for hazards such as standing water or slippery conditions on its public sidewalks within the city limits, much less in and around the area where the large scale development of over 1500 apartment homes contiguous to the area where the incident occurred were being constructed.

The City of Irvine�s Public Works Superintendent, Mr. Robert Tracy, provided a declaration in support of the City of Irvine�s Motion for Summary Judgment. Mr. Tracy attempted to support the notion that Central Coast Grinding performed inspections of sidewalks in the City of Irvine, the subject sidewalk was inspected in May 2005 and no defects were reported to city officials. Respectfully, Mr. Tracy�s declaration is riddled with half truths and is thoroughly misleading regarding the City�s contract with Central Coast Grinding and its inspections of public sidewalks.

In truth, Central Coast Grinding is a sidewalk trip-hazard removal, remediation, reduction business, which uses rotary scarifiers to grind concrete to eliminate or reduce trip hazards. Furthermore, Central Coast Grinding would only inspect (concrete issues) at the

City�s request, and not on a regular basis. The City of Irvine has never called Central Coast Grinding in reference to an issue involving mud or standing water, and/or debris across a public sidewalk during the contractual period. In fact, Central Coast Grinding neither remedies

nor reports conditions such as standing water or algae on the sidewalks to the city or Irvine City officials. To report such a dangerous condition would be outside the typical scope of the Central Coast Grinding�s contract.

Moreover, inspections of public sidewalks within the Irvine city limits are conducted on a seven-year basis. In the exercise of due care, especially on a site under construction the City of Irvine should have discovered the dangerous condition of the subject sidewalk and would have if the City had an inspection system in place that was reasonably adequate to put the City on notice of whether the sidewalk was safe for public use. With the very large construction project in the area, the City should have conducted regular inspections of the surrounding areas. They did not. The City failed to use reasonable diligence in making inspections for the discovery of dangerous conditions.

Photographs of the subject sidewalk and surrounding area taken one year following the incident depicts that there was an ongoing problem with the sidewalk, which still had dirt, mud, and other debris that was spread across the area. Accordingly, this Motion for Summary Judgment must fail.

III. CONCLUSION

Plaintiff has provided competent expert testimony in the form of a declaration, which

contradicts the declaration of Mr. Robert Tracy, Superintendent of the City of Irvine�s Public Works Department. There are triable issues of material fact and Plaintiff MARY ZELAZO

respectfully requests that the Defendant�s Motion for Summary Judgment be denied.

Dated: February 25, 2008

LAW OFFICES OF MARK J. MEYERS

___________________________________

MARK J. MEYERS,

Attorney for Plaintiff, MARY ZELAZO

You thought all you had to do was file a complaint and presto, you would get your day in court. Doesn't work that way. Now you realize you are in over your head. Suing public entities is hard even for lawyers. The most common defect in pro-per complaints against public entities is that the pro-per forgot to present a claim to the entity (required before filing suit); if your complaint has this type of defect then your case is dead. I am surprised that another lawyer responded with a sample opposition. Your opposition must be based on legal research that is specific to your case and the issues raised in the demurrer. You must file and serve it at least 9 court days before the hearing date, watch out for holidays and court closure dates which are not "court days." Without knowing more it's difficult to say more. Best of luck, you'll need it. If you're confused at this stage of the proceedings, wait till the envelope arrives with 10 pounds of discovery paperwork. You are rapidly approaching the point where it will be too late to hire a lawyer. But maybe the case isn't all that important to you.