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Decoding injury liability - September 5, 2018 - SF Weekly
SF Weekly

Decoding injury liability

This week’s question comes from Jane in Portola Valley, who writes:

Q: “We were bike riding in Marin and we were going to stop in Samuel P. Taylor Park to have a bite to eat and rest.  As we approached the park I hit a pretty big bump in the road and was thrown from my bike. I landed on my head and suffered bad cuts on my face and shoulder and broke my forearm.   After I fell, the park ranger walked over and said that I wasn’t the only one to fall there. Do I have any legal recourse?”

A: Jane, your question is not an easy one to answer partly because I don’t know if you fell inside or outside of the park boundaries. There is a body of law known as the “dangerous condition of public property” doctrine which analyzes injuries that happen on public property. The Government, seeking to limit liability against itself, created a set of statutes under which the Government can be held liable.  Government Code section 835 states that a public entity is liable for injury caused by a dangerous condition of its property if an injured party establishes that 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 the condition was either: 1)  created by a negligent act or omission of a government employee; or 2) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

Actual notice is when the entity already knows of the existence of the condition and knew or should have known of its dangerous character. Constructive notice exists if the injured party establishes that the condition had existed for such a period of time, and was of such an obvious nature, that the public entity, should have discovered the condition and its dangerous character.

The defect must be more than a trivial defect, it must present a substantial risk of harm.  Whether a condition rises to the dangerous threshold is rather circular and cryptic: a substantial risk of harm is defined as one which is more than trivial.  Courts may decide as a matter of law that a condition is trivial and, in many cases, have done so:  for example, holding a half-inch deviation in sidewalk panels was trivial as a matter of law.

A defense to such a claim is the “ open and obvious” defense.  If a condition is so significant that it would be open and obvious to a reasonably attentive person then the person harmed may be negligent.  This usually does not act as a bar but, instead, is considered as comparative fault.

More information is needed to determine if this is trivial or open and obvious. You should take pictures of the defect, at the same time of day, under the same lighting conditions, with a ruler, so that a better analysis can be made.

Whether you were inside the park grounds and or whether you were on a paved or unpaved section of the roadway is also important.  Under Section 831.4, the Government is not liable for an injury caused by a condition of public property which is an unpaved road that provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, in recreational or scenic areas that are not streets or highways.  Likewise an entity is immune for injury on any paved trail, walkway, path, or sidewalk or easement which has been granted to a public entity, which provides access to any unimproved property, so long as the  public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety.

If you were outside the park on Sir Francis Drake Boulevard, and had not yet entered its boundaries, the trail immunity should not apply.  If you were within the park it may apply.  If that be the case, there is a strong argument that the entity did not properly warn of the condition as the ranger was aware that others had fallen there.

We have handled hundreds of dangerous condition cases over the years involving bikes, cars, muni trains, sidewalks, escalators, stairs, highways, city streets and the like.  Because of the intricacies of the statutes, these cases are quite complex and should only be handled by trial lawyers with significant experience in this area.  I suggest that you get photos of the area, including ones showing dimensions with a ruler in place, as well as lighting conditions at the time of your fall, and present those to a trial lawyer who can analyze whether or not you have a case worth pursuing.

Christopher B. Dolan is the owner of the Dolan Law Firm. Email Chris questions and topics for future articles tohelp@dolanlawfirm.com.

We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.