Bunker v. City of Glendale

111 Cal. App. 3d 325, 168 Cal. Rptr. 565, 1980 Cal. App. LEXIS 2355

• Court: California Court of Appeal
• Decided: October 23, 1980
• Docket: Civ. 57261
• Status: Published

Opinions

Opinion

FLEMING, J.

Defendant City of Glendale appeals a judgment in fa: vor of plaintiff Cary Lee Bunker in an action for personal injuries and property damage.

At 10 p.m. on August 5, 1972, Bunker was riding his motorcycle up a steep hill on Adams Street in Glendale. As Bunker was approaching the top of the hill, Lillie Minor was backing her vehicle out of a driveway on the far side of the hill 55 feet below the crest. Because of the steepness of the hill of the grade, Bunker was unable to see Minor’s vehicle until he reached the top of the hill, at which time he was traveling 25 to 30 miles per hour. At that speed he was unable to stop in sufficient time to avoid a collision with Minor’s vehicle. The posted speed limit on Adams Street was 25 miles per hour. However, approximately 500 feet before the crest of the hill there was a sign which advised motorists to “Slow To 15 Miles an Hour.”

Bunker later commenced this action against the City of Glendale and Lillie Minor. Minor settled with Bunker prior to trial. City’s motion for summary judgment on the ground it was immune from liability was denied. (Gov. Code, §§ 830.4, 830.8.) In a special verdict the jury found that city knew and failed to warn of a dangerous condition, and it as-[Oct. sessed Bunker’s damages at $100,000. However, the jury also found that Bunker, who had driven over the hill on many other occasions prior to the accident was contributorily negligent, and it fixed his liability at 44 percent, apportioning the remaining 56 percent to city. The verdict of $56,000 against city was reduced by the $25,000 Bunker had received in his settlement with Minor, and judgment was entered for Bunker for $31,000. On appeal, city contends (1) there was insufficient evidence to support the jury’s finding that city failed to warn of a dangerous condition, and (2) the trial court erred in denying city’s motion for a mistrial due to juror misconduct.

1. Generally, a public entity is liable for injury caused by the dangerous condition of its property if the entity had notice of the danger and failed to take appropriate measures to warn of or remedy the condition. (Gov. Code, § 835; Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488 [135 Cal.Rptr. 296].) At bench, city does not contest the fact that the lack of visibility on Adams Street constituted a dangerous condition. However, city argues that the sign advising motorists to “Slow to 15 Miles an Hour” gave sufficient warning of the danger, and that Bunker could have avoided the collision if he had conformed his speed to that advised by the sign. City also contends, citing Government Code section 830.4, that even if the sign did not give sufficient warning of the danger, failure to post an adequate sign cannot furnish a basis for imposition of liability upon a public entity.

Government Code section 830.4 states that the absence of traffic control signals or signs does not in itself make a condition a dangerous one. However, when a dangerous condition exists which would not be reasonably apparent to, or anticipated by, a person exercising due care, and a sign is necessary to warn of the condition, the public entity’s failure to provide such a sign may provide a basis for imposition of liability against the public entity. (Gov. Code, § 830.8; Cameron v. State of California (1972) 7 Cal.3d 318 [102 Cal.Rptr. 305, 497 P.2d 777]; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82 [135 Cal.Rptr. 127].) At bench, the sign which advised oncoming traffic to slow to 15 miles per hour was sited 3 intersections away from, and approximately 500 feet below, the crest of the hill. There was evidence that motorists could not tell whether the warning applied to the intersections or to the grade of the hill. The jury’s conclusion that the city failed to warn motorists about a dangerous condition is supported by evidence which, if not exactly overwhelming, squeaks by the current standard for substantiality of evidence.

2. City asserts that its motion for a mistrial based on juror misconduct was erroneously denied. During jury deliberations 9 of the 12 jurors agreed that city and Bunker were liable for the accident. In apportioning liability, the nine jurors added up the figures each had arrived at individually and then divided the total by nine. City contends this procedure produced an improper quotient verdict. (See Bardessono v. Michels (1970) 3 Cal.3d 780, 794 [91 Cal.Rptr. 760, 478 P.2d 480, 45 A.L.R.3d 717].) But a verdict based upon a quotient figure is not improper, if, after the quotient figure has been computed, the jurors are polled, and each agrees that the tentative figure arrived at represents a proper distribution of responsibility among the respective parties. (See Bardessono v. Michels, supra, at pp. 794-795.) Bunker presented six jurors’ declarations stating that the jurors had not agreed in advance to be bound by the quotient figure and had adopted that figure as their verdict only after further discussion and balloting. City presented other jurors’ declarations stating that agreement had been reached in advance to adopt whatever figure resulted from the quotient process. Where declarations conflict, the trial judge’s determination as to which set of declarations he finds credible will not be disturbed on appeal. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108 [95 Cal.Rptr. 516, 485 P.2d 1132].)

City’s final contention about jury irregularities during deliberations is without merit.

The judgment is affirmed.

Roth, P. J., concurred.