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Martinez v. City of Long Beach2/21/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs Victor Martinez (Victor), a minor, through his guardian ad litem, and Norma Martinez (Norma), his mother, appeal from a summary judgment in favor of defendant City of Long Beach (City). In an intersection of City's streets, in the presence of Norma, a vehicle driven by Gary Simon (not a party on appeal) struck then-four-month-old Victor as Victor's stroller was being pushed across the street, causing personal injury to Victor and emotional distress to Norma.
Plaintiffs contended the appearance that a crosswalk was marked at the intersection was a substantial factor in the accident and a dangerous condition of government property for which City was liable under Government Code section 835. In granting summary judgment the trial court concluded there was no evidence the condition of the street was dangerous or played any part in the accident.
We reverse. Plaintiffs were crossing the street in what appeared to Norma to be a marked crosswalk. City had formerly maintained a marked crosswalk. City had covered the markings with a "slurry coating" years before, with the intention that it no longer be a marked crosswalk. But the slurry coating wore off and the white lines of a marked crosswalk reemerged. We conclude there are triable issues of fact whether this constituted a dangerous condition or whether this condition played some causal part in the accident.
FACTS
The accident occurred in the intersection of 6th Street and Alamitos Avenue (Alamitos) on November 6, 1998, at 5:00 p.m. This intersection is an unusual convergence of three streets: 6th Street runs east-west; Martin Luther King, Jr. Avenue (MLK) runs north-south; and Alamitos crosses at a diagonal, slightly northeast-southwest. The block between 6th Street and 7th Street is shown by aerial photographs (looking southward) at pages 43-44 of the clerk's transcript, and has the appearance of a large letter "A" with Alamitos and MLK as its legs and 6th Street crossing both avenues horizontally near the top of the A. In the middle, near the top of the A, is a pedestrian island. A pedestrian traveling on 6th Street could, physically, cross both Alamitos and MLK, stopping in the middle on the pedestrian island. The portion of this path across MLK (between the island and the corner of 6th Street and MLK) is a marked crosswalk, and is controlled by a traffic signal affecting pedestrians crossing MLK and vehicular traffic on MLK. The other portion of the continuation of such path, across Alamitos (between the island and the corner of 6th Street and Alamitos), is not controlled by a traffic signal, and although it was formerly a marked crosswalk, the markings were covered over by City in 1982 or 1983, by "slurry-coating" the street with an oil mixture, with the intention that it not be a marked crosswalk. Over the years, however, traffic wore down the slurry coating, and by the time of the accident in 1998, the white lines of the original marked crosswalk had reappeared, at least faintly.
The theory of plaintiffs' case was that the reappearance of white markings on the Alamitos portion of the path gave it the appearance of a marked crosswalk, and a marked crosswalk at an otherwise uncontrolled intersection can be dangerous because according to multiple studies and experts it tends to give pedestrians a false sense
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