California Cases July 14, 2022: James v. City of Turlock

Case Description

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NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Stanislaus County, No. 9000681 Roger M. Beauchesne, Judge.

Suzanne M. Nicholson; Overstreet & Associates, Litigation Engineered and Chester E. Walls, for Defendant and Appellant.

Greene, Broillet & Wheeler, Geoffrey S. Wells; Esner, Chang & Boyer, Stuart B. Esner, Shea S. Murphy, Kevin K. Nguyen; Law Offices of Ted B. Wacker, Ted B. Wacker and Jessica Vanden Brink, for Plaintiffs and Respondents.

OPINION

DE SANTOS, J.

Plaintiffs Shawnta Lynell Eugenia James (James) and her daughters, Genevieve Rayanne Grayson (Genevieve) and Gia Bella Grayson (Gia), through James as their

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guardian ad litem (collectively, plaintiffs), sued the City of Turlock (City) and Jorge Luis Alonso Tello (Tello) for injuries they sustained when Tello broadsided their car as James was making a left-hand turn at the intersection of Golden State Boulevard (Golden State) and Fulkerth Road (Fulkerth) (the intersection). James sued Tello for negligence and the City for failing to protect against a dangerous condition at the intersection.

The trial was bifurcated, with the issue of liability being tried first. While the jury found Tello and James were both negligent, the jury found the intersection was not in a dangerous condition at the time of the accident and therefore did not assign any responsibility for plaintiffs' harm to the City. Judgment was entered in the City's favor. The trial court, however, granted plaintiffs' posttrial motion for a new trial. The City appeals, arguing the trial court abused its discretion in granting the new trial motion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Intersection

Golden State, formerly State Route 99, is a north-south running roadway that runs parallel to railroad tracks which are to the west of Golden State. Golden State is a divided highway with four lanes of traffic with a median that divides the two sides of traffic. In Turlock, it intersects with an east-west running roadway comprised of Fulkerth on the west side of Golden State and West Hawkeye Avenue (West Hawkeye) on the east side. The intersection is not at right angles but rather is skewed, with a 130-degree left turn angle from Fulkerth onto northbound Golden State, which is common for intersections along Golden State. The speed limit to the north of the intersection was 50 miles per hour (mph), while the speed limit in the remaining directions was 40 mph.

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The City designed the intersection in 1991 with single left-turn lanes and permissive signaling on Fulkerth and West Hawkeye for vehicles turning left onto Golden State. Permissive left turns are controlled by a green ball traffic signal; vehicles must yield to oncoming traffic and turn left only when safe to do so. Vehicles are allowed to pull out and wait in the intersection until traffic clears before making their turn. Left turns from Golden State onto Fulkerth and West Hawkeye were controlled by a protective signal, which allows vehicles to turn left on a green arrow without yielding to oncoming traffic. The intersection is one of the largest intersections in Turlock and had seen an increase in traffic since its construction in 1991.

There were construction projects at the intersection that invited more people to come into the area. A City-approved shopping center was added to the intersection's northeast corner in 2008, and a transit center was added to the intersection's southeast corner in 2011, which the City designed, approved, and constructed. The plans for the shopping center and transit center both were signed by a licensed civil engineer and approved by the city engineer. While the 2008 and 2011 plans made some modifications to surrounding areas, they did not change the general geometric layout of the intersection or the permissive left turn signaling for eastbound and westbound traffic.

The Accident

On March 29, 2017, James was driving to her sister's home in Turlock to drop off her daughters, then four-year-old Genevieve and one-year-old Gia, before heading to work. At around noon, James was heading eastbound on Fulkerth when she merged into the left-turn lane to turn left onto northbound Golden State. A white sports utility vehicle (SUV) was in front of James in the left-turn lane, and they both entered the intersection on a green light. While the SUV blocked James's view of oncoming traffic, when the SUV turned left James looked to oncoming traffic and saw the cars were slowing down, so she made the turn as well as she believed it was safe to do so. As James was turning, the light changed from green to yellow.

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Before James completed the turn, a car driven by Tello appeared to her right front. James tried to accelerate out of its way, but it was too late and Tello struck the passenger side of her vehicle, essentially t-boning it at an angle. James's car rotated to the north, collided with a car waiting at the intersection's limit line, and came to rest in the northwest corner of the intersection.

Tello was traveling over 70 mph in a posted 40 mph zone; he was late for work and rushing to get there. As Tello approached the intersection, he saw the SUV waiting in the left turn lane on Fulkerth. The light turned yellow, and the SUV turned left in front of Tello as he entered the intersection. Instead of slowing down or braking, Tello tried to avoid the SUV by moving to his left, but he crashed into James's car, which he had not seen, as it turned in front of him right behind the SUV. According to plaintiffs' reconstructionist, if Tello had not been speeding, the accident would not have happened. Tello pled guilty to felony reckless driving.

As a result of the accident, Genevieve and Gia suffered serious injuries-both suffered traumatic brain injuries and collapsed lungs. Gia also had a torn spleen, and a broken tibia and fibula, while Genevieve had a spinal cord injury that resulted in her needing a tracheotomy to breath and loss of bowel function.

James had been through this intersection and made this same turn many times before the accident. She was employed as a City bus driver and drove the intersection regularly as part of her bus route. She was familiar with the permissive signal and testified you must pull out to make the left turn because the intersection is large. James often got stuck in the intersection on red before making the turn and it was difficult to judge oncoming traffic and make it through on a green. All signals in the City have red clearance timing built in, meaning there is an interval where the signals are red from all directions.

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The City's Planned Improvements to the Intersection

At the time of the accident, the City's engineering division, which was part of the Developmental Services Department, consisted of Developmental Services Director/City Engineer Michael Pitcock, Principal Civil Engineer Nathan Bray, Associate Civil Engineer Stephen Fremming, and Traffic/Transportation Engineering Supervisor Wayne York, who worked under Pitcock's direction. By the time of trial, Pitcock had left the City's employment and Bray had become the interim Director of Developmental Services/City Engineer.

Pitcock, who in 2017 had been with the City for about 20 years, supervised engineering, building and planning functions within the City. Pitcock was involved in developing the City's general plan, which was adopted around 2012. The general plan guides City development and models what the City should look like 20 years in the future. Environmental studies and a city-wide traffic study were conducted prior to its approval. The general plan was based on data a city engineer can rely on, including traffic panels and turn counts used to develop what an intersection should look like in 20 years, such as whether an intersection needs two- or three-lane arterials. The City also relied on various standards and guidelines, including the Manual on Uniform Traffic Control Devices (MUTCD), the Caltrans Highway Design Manual, and Caltrans standards for traffic signals.

The general plan called for the installation of dual left-turn lanes off arterial streets to improve intersection efficiency and handle traffic expected at full build-out as the City grew. When the intersection first was designed in 1991, the general plan did not call for dual left-turn lanes. According to Pitcock, dual protected left-turn lanes were justified at

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the intersection even before 2012 "whenever you have funding to make the improvements," as the general plan called for dual left-turn lanes at all four legs on large arterial versus arterial intersections. Bray agreed dual left-turn lanes could have been installed as early as 2008, but he believed the intersection capacity at the time did not require them. While the general plan did not specifically call for protected left-turn movements, the City always installed protected signaling on dual left-turn lanes because that was the proper way to handle those intersections.

In 2012, the City applied to receive federal Congestion, Mitigation and Air Quality (CMAQ) funds for several projects, including a reconstruction project at the intersection, with the goal of improving air quality efficiency. In the fall of 2014, the City began to design plans to expand the intersection in conformance with the general plan. According to Fremming and Pitcock, safety was not the driving factor for the project, but whenever the City embarks on a project the engineers keep safety in mind, evaluate all hazards involved, and try to incorporate as many safety improvements as necessary for the project. To address safety at the intersection and match the general plan build-out, the reconstruction plan added dual left-turn lanes and protected arrows for eastbound to northbound moves. Pitcock approved the plans and specifications for the project in December 2016.

Fremming was involved in the project's signal timing plan. He understood the project was intended to address circulation elements of the general plan and included installing dual left-turn lanes and protected signaling for all approaches of the intersection. Fremming, who does not personally review accident history for an

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intersection before doing design work, was not given a specific safety directive for his work, and he was not made aware of any prior accidents at the intersection. According to Fremming, neither he nor any of his supervisors who he spoke with about the project were concerned that they needed to implement an interim measure at the intersection pending construction.

The plans and specifications were put out to bid in the winter of 2016-2017. To obtain city council approval of the plan, Fremming prepared a report, which Pitcock reviewed and signed, for a February 14, 2017, city council meeting, which recommended the award of a bid and approval of an agreement for construction. The report described the intersection as "highly traveled" and "lacking in many key areas" including: (1) infrastructure that only allowed permissive left turns from a single lane on Fulkerth and West Hawkeye; (2) insufficient lane widths to accommodate large semi-trucks; (3)lack of sidewalk, curb ramps, and accessible routes throughout the intersection; (4)lack of bicycle lanes on the intersection's northern and southern legs and lack of bicycle detection; and (5) "[g]eneral degradation of existing pavement and aging traffic signal equipment."

Discussing the proposed change in signaling in the city council report, Fremming explained left-turning vehicles from Fulkerth and West Hawkeye were currently served through a single lane with a permissive left turn movement. Fremming further explained: "Permissive movements improve intersection efficiency as the overall time to cycle through phases is decreased due to no dedicated left turn phase. However, permissive left turn phasing yields increased accident rates, as drivers occasionally misjudge safe gaps in traffic while turning left. In addition, Fulkerth Road and West Hawkeye have relatively high speed approaches at Golden State Boulevard. In order to decrease the potential for high speed collisions at right angles, the proposed design provides protected left turn phasing, which provides a green arrow and dedicated phase."

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According to Fremming, while engineers design a roadway to provide a safe environment for reasonable and safe use, drivers "traverse the roadway according to their own will" and crashes still occur. Fremming testified it was important to prevent right-angle accidents "[b]ecause the right-angle accidents can lead to pretty serious injury." Fremming explained: "Left turns are-in general can be dangerous movements to make. So if we can-if we can institute something that will decrease the chance of that, we will do so as we do our projects." Fremming also testified engineers try to anticipate driver and pedestrian behavior when redesigning an intersection, and attempt to avoid conflicts between cars and pedestrians, as well between cars.

Fremming agreed every construction project has a goal of improving efficiencies and making the project safer. Fremming denied the statement in the city council report that the intersection was "lacking in many key areas" meant it was dangerous, explaining instead it meant that while doing the "improvement project" they "wanted to improve things," but it did not mean the existing intersection "was considered dangerous by staff at any time."

According to Fremming, measures that increase safety, such as providing protected left turns, do not mean the existing configuration is unsafe or dangerous. Fremming had driven through the intersection many times and had been out to evaluate the intersection numerous times. In Fremming's opinion, based on his engineering judgment, the intersection was not dangerous prior to the reconstruction project, but the project would improve safety. Fremming did not analyze traffic data for collisions or look at speed surveys in determining the intersection was not dangerous. His designs were based on established design standards, which use the posted speed limit as a factor and consider reasonable use, but he did not design for excess speeds well above the posted speed limit, such as vehicles traveling 30 mph over the posted speed limit.

Pitcock agreed the intersection was lacking in many areas, including infrastructure that only allowed permissive left-turn movements from a single lane on Fulkerth and

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West Hawkeye. While Pitcock conceded protective left turns can be safer than permissive ones and permissive left turns can yield increased accident rates, he believed that was due to driver error, such as misjudging gaps in traffic, and intersections with permissive left turns are not dangerous if driven correctly. Pitcock, however, also conceded permissive left turns present a danger if one considered every driver that went through the intersection, as "there is going to be one or two that make bad decisions."

Pitcock agreed the skew in the intersection required a driver turning left to not only wait for traffic to clear, but also to look over their shoulder to check for pedestrians. Pitcock further agreed Fulkerth and West Hawkeye were relatively high-speed approaches at Golden State and the proposed design of protected left-turn phasing would decrease the potential for high-speed collisions at right angles. He agreed with Fremming's testimony that right-angle collisions could result in serious injuries and permissive turns can place vehicles in conflict with one another. Both Fremming and Pitcock testified it was expected that drivers would exceed the speed limit.

Pitcock testified he exercises engineering judgment when reviewing and approving projects, and he did so when he approved the reconstruction project in 2016. He also relies on various city, state, and federal standards, including the MUTCD and the Caltrans Highway Design Manual. He was not aware the City investigated the number of traffic collisions at the intersection and he did not require or request a traffic study for the intersection, although the City had data on how many vehicles traveled through the intersection. No one under his direction at the City ever looked at turning movements for the intersection. While the City asked the police department to provide reports for intersections with the top accident rates, Pitcock did not receive any for this intersection because he did not believe it "rose to that level," as the intersection did not have as many accidents as others.

Bray, who had been with the City for 13 years, testified that when the City applied for federal funding in 2012, the intersection was a busy one that needed improvements to

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address congestion and traffic flow. Bray agreed permissive left turns can present safety issues for drivers, as can any movement through the intersection, since drivers turning left occasionally misjudge safe gaps in traffic, and engineers should attempt to eliminate the possibility of conflicts between vehicles. Bray was familiar with the city council report and agreed the intersection was lacking in many areas including the absence of dual left-hand turn lanes, which needed to be installed. Bray agreed a protected left-turn light could decrease the potential for high-speed collisions at right angles and eliminate potential conflicts between left-turning cars and through traffic.

York received and investigated traffic-related complaints. York did not recall responding to a specific complaint or criticism concerning the intersection. Pitcock and York, however, noticed drivers who were simultaneously making northbound and southbound left turns began drifting to the center of the intersection and getting close to each other during their turns. In July 2016, after discussing the issue, Pitcock directed York to adjust the traffic signal phasing to implement a lead lag for northbound and southbound traffic so drivers could no longer turn left at the same time, which would avoid the conflict between left-turning cars. Protected left turns were already in place for these turns. Changing the signal phasing took 20 to 30 minutes including drive time.

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The city engineer had the authority to authorize the change without approval of the city council or any other agency.

Documents provided to the California Public Utilities Commission (CPUC) to obtain approval to alter the railroad crossing as part of the project described the public benefits to be achieved as improved safety and increased efficiency by, among other things, providing dual left-turn lanes in all directions, and replacing "aging and inadequate pavement, pedestrian, and traffic signal infrastructure." Fremming was not aware of problems with the infrastructure; rather, it was "aging." New signal poles would be required to accommodate the new signaling design.

Once the City approved the project it decided to postpone construction until after the county fair in mid-July, to avoid intersection closures, as the fair draws huge increases in traffic and a major construction project would interfere with traffic flow. Construction began in July 2017.

Plaintiffs' Engineering Expert

Registered civil engineer Dale Dunlap, who had over 30 years' experience with roadway design, testified as plaintiffs' engineering expert. Dunlap explained the "unique geometry" of the intersection-the intersection was immediately adjacent to railroad tracks and skewed about 130 degrees, 40 degrees more than conventional intersections. Dunlap noted, "You don't find these large skews at most intersections." The skew posed a concern that a driver turning left from eastbound Fulkerth to northbound Golden State had to look both over their left shoulder to see if there were pedestrians crossing the intersection and forward to ensure there was no oncoming traffic. There are federal and state engineering standards for skewed intersections which say a skew outside of 70 to 110 degrees "is a problem" and one must "design to deal with that skew."

Because of the skew and the median that divided the northbound and southbound traffic, the intersection in the east-west direction was wider than typical intersections,

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which lengthened the time it took a driver to cross east or west. The width of the intersection caused a driver to be in the center of the intersection longer, known as the "conflict zone." Dunlap explained: "Th[e] whole entire center part of the intersection … is a conflict zone … because you do have lanes of traffic crossing one another, paths of travel for the traffic crossing one another. And, of course, if you have two vehicles there, then you end up with a collision."

Dunlap reviewed documents that showed the average daily traffic volume for the intersection. Dunlap explained that an approach speed is the speed of traffic on the roadway, and on Fulkerth and West Hawkeye, the critical speed, which refers to the speed at which 85 percent of drivers sampled drive on a particular roadway, was 42 mph even though the speed limit was 40 mph. Dunlap confirmed the intersection's skew, the railroad, and the high traffic volumes were unique features of the intersection.

Dunlap explained to evaluate the performance and layout of an intersection one needed average data traffic volumes, the operating or critical speed of traffic, the roadway's geometry, distances traveled, and turning counts, which helps engineers understand what gaps in traffic are available for vehicles making left hand turns. Traffic studies look at traffic volume, turning movements, and traffic distribution throughout the day, which help establish how to set up and program signal controllers.

The City did not have any traffic studies or turning movement counts for the intersection. Dunlap did not prepare traffic studies or turning movement counts because the intersection had changed by the time he was hired, so the counts would be meaningless. While Dunlap was able to estimate the number of vehicles passing through the intersection by reviewing average daily traffic counts the City did in 2007, 2008, and

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2015, he could not determine how many vehicles were turning left or right since counts of turning movements were not taken before the reconstruction project.

Dunlap explained engineers should look at collision history, which is an important part of a traffic study and shows how an intersection is operating. If accident volumes are high enough studies "are automatically triggered as required," but if accident volumes are not "so high," one still might recognize a problem that would justify a project to bring accidents down. While one accident may not indicate a problem, more than one accident, especially if they are similar, means you need to look at what is happening. If he had two accidents that involved left-turning vehicles, he would need to find out why the drivers were having a hard time turning left.

Dunlap received 62 collision reports "over a period of time," as well as a record of accidents from the Statewide Integrated Traffic Records System and a list of accidents that police investigated. In his review of the traffic collision reports, Dunlap saw left-turning broadside accidents similar to the one in this case. Two collisions involved cars traveling westbound through the intersection at or below the posted speed limit, which "forms part of the data" justifying installation of protected left turns for eastbound and westbound drivers.

Dunlap reviewed the city council report's statement that "permissive left turn phasing yields increased accident rates, as drivers occasionally misjudge safe gaps in traffic while turning left." As a professional engineer for 30 plus years, Dunlap testified it is commonly known that permissive left-turn phasing leads to increased accident rates and people occasionally misgauge gaps in traffic, which is "an understanding that's been around for almost as long as traffic signals." Dunlap found it significant there had been growth in the area and increased traffic because both place a greater demand on the intersection that may require it to be controlled differently than originally designed and necessitate addressing changes in how the signal operates.

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Dunlap testified sometimes it is good engineering judgment to have interim plans because it takes a while for improvements to be built. In his review of the file, Dunlap came up with split phasing as an interim plan for the intersection. Split phasing holds traffic in one direction for both left and through movements and allows the traffic to proceed in the opposite direction then, when traffic is cleared out, that direction is shut off and the other direction opened. Dunlap explained, "[t]he beauty of split-phasing is that it provides that protected left without having a traditional protected left," but its detriment is that it takes longer to go through all the phases of the signal cycle, which can deteriorate the level of services for the intersection. The purpose of split phasing is to remove conflicts between vehicles; it provides "a fairly good intermediate solution." Had split phasing been implemented, it would have avoided the conflict between James and Tello's vehicles and made Tello's speed irrelevant.

To implement split phasing at the intersection, the traffic light controller would need to be programmed to change the timing when one phase starts and another stops, and the three-light heads of the traffic signals (red, yellow, and green balls) on Fulkerth and West Hawkeye would be replaced with four-light heads (red, yellow, and green balls, and a green arrow). The controller programming would take about 10 minutes and the head switching about a day. Dunlap had not seen any study that showed the City considered any alternatives at the intersection. Dunlap did not have traffic studies that allowed him to analyze whether split phasing would be appropriate for the intersection, but he knew the City built protected left turns into its plans and he "took that and ran with it." Dunlap conceded split phasing would result in more traffic stacking up in the eastbound and westbound directions, causing more vehicles waiting on the eastside where the railroad tracks were.

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Dunlap opined that while any one of the characteristics of the intersection he identified does not by itself make the intersection dangerous, that is not the case when the characteristics are viewed collectively. Dunlap believed the intersection was in a dangerous condition on the day of the accident. Dunlap explained the five things he identified are like puzzle pieces that need to be viewed together and which together show protected left turns were warranted: (1) the intersection's skew; (2) the increased traffic volume; (3) the higher speed of traffic, which affected drivers' ability to judge how far and quickly they could go; (4) the permissive left-turn signaling which had "outgrown its usefulness" since the intersection was designed and built in 1991 because of gaps in traffic that are misunderstood; and (5) the exposure time of vehicles in the intersection due to its size.

Dunlap explained while permissive left turns have their place, that is not the case at the intersection, which was a "bad candidate" for permissive left turns. In forming his opinion that the intersection was in a dangerous condition, he did not consider Tello's actions because one person's actions were irrelevant when operating an intersection. Instead, his opinion was based on the intersection's critical speed of 42 mph. A roadway with a speed limit of 40 mph or more is considered a "high-speed roadway" where "you get into some design features that begin to change because of the speed of the traffic."

Dunlap conceded the railroad's location and the skew of the intersection existed before the City took control of the intersection. The intersection's skew and the increased average daily traffic were not individually dangerous conditions. While Dunlap asserted it was the traffic speed in the eastbound and westbound directions that contributed to the intersection's dangerousness, he agreed the 40 mph speed limit was appropriate and that in a 2014 speed survey, traffic was traveling between 38 to 43 mph.

When asked to explain exposure time, Dunlap responded it was a "time element" that involved the speed of approaching traffic and the distance a driver needed to travel. In this intersection, drivers turning left must travel a longer distance than they otherwise

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would if it were a 90-degree turn, as drivers must make a 130-degree turn, and with the speed of traffic, there was exposure time waiting for a gap in traffic to appear so a driver may turn left. Dunlap did not calculate exposure time; instead, he "just looked at it" because he knew "the distances are fairly large" due to the large intersection and the speeds are "fairly high, coming in at 43 miles per hour, that's 58, almost 60 feet per second." Dunlap testified the increased exposure time compared to a 90-degree angled intersection was "very short," only a second or two, which did not amount to a "great deal of time exposure," but you needed "to recognize that it is in addition to what you would have with a 90-degree configuration."

Dunlap testified the intersection could still be considered dangerous if one of the five elements he listed were removed and a hypothetical could bet set up where you lose two elements and it is no longer dangerous and another where it is dangerous without all five elements. His assessment was subjective to the location, but at this intersection the five elements "add up to give you the picture of a dangerous way of operating the signal." He testified there was still a dangerous condition at this intersection if one of the elements were lost, but all five elements were critical to his opinion.

Dunlap agreed the standards and guidelines he relied on come down to engineering judgment, which is based on data. Dunlap was familiar with the nine signal warrants in the MUTCD, which govern whether and how to signalize an intersection. Dunlap explained a signal warrant may be triggered when there are five accidents at an intersection in a 12-month period, since installing a signal could mitigate those accidents. The rule is not mandatory, however, and fewer accidents could be enough to justify installing a signal. Dunlap further explained the state has a computer program that automatically "kicks out the requirements for an investigation" when there are five accidents in a 12-month period, but it is not a "hard rule that is drawing a line in the sand" that nothing is done if there are fewer accidents.

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Dunlap opined the City had or should have had notice of the intersection's dangerous condition when it applied for CMAQ funding in 2012, as that is when the City was trying to improve the intersection and represented to the city council that safety was part of the improvements. Dunlap noted CMAQ stands for congestion management and air quality, and congestion management included the issues he talked about, including increased traffic volume, which was congestion, and traffic speed, which is affected by congestion.

Dunlap reviewed the plans for the 1991 project, the 2008 plans for the shopping center, and the 2011 transit center plans, and saw they were designed by a licensed California civil engineer, approved by the city engineer who also is a licensed California civil engineer and approved by the city council. Dunlap did not have any criticism of these plans. Dunlap agreed the 1991 plans implemented the permissive phasing for eastbound and westbound traffic, and the 2008 and 2011 plans did not change the general geometric layout of the intersection.

Plaintiffs Move for a New Trial

The jury found in favor of plaintiffs against Tello, but in favor of the City against plaintiffs. As to the City, the jury found that the City owned or controlled the intersection, but the intersection was not in a dangerous condition at the time of the accident. The jury also found James comparatively at fault, allocating 85 percent of the responsibility to Tello and 15 percent to James. Judgments were filed on October 21, 2019.

Plaintiffs moved for a new trial on the ground the verdict was against the weight of the evidence. Plaintiffs asserted whether the intersection was in a dangerous condition required competent professional traffic engineering opinion testimony as the matter is beyond common lay understanding. Plaintiffs asserted Dunlap's expert opinion conclusively established the intersection had become dangerous and split phasing would have eliminated the accident. Plaintiffs argued: "Dunlap's expert opinion testimony

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coupled with CITY's documentary admissions in evidence, constituted substantial competent evidence that the design of the accident intersection was and had become dangerous as a result of unprotected left turning, and that CITY's failure to have implemented split phasing … caused t[he] intersection to remain in a dangerous condition and clear cause of the March 29, 2017 accident in this case."

Plaintiffs asserted the City failed to produce competent expert opinion to controvert or impeach Dunlap's opinions establishing the dangerous condition of the intersection as the City withdrew its traffic engineering expert, which left the City. Plaintiffs asserted Fremming's testimony was the only evidence the City proffered on the issue of dangerousness, but it was devoid of explanatory supporting evidence, and Pitcock admitted the intersection was in a dangerous condition based on the foreseeable conduct of drivers. Plaintiffs therefore contended no substantial evidence existed to support the jury's finding the intersection was not in a dangerous condition at the time of the accident.

In opposing the motion, the City argued the weight of the evidence did not support a new trial because the evidence clearly established no dangerous condition existed. The City asserted plaintiffs failed to establish a prima facie case of a dangerous condition of public property and failed to explain how they did so at trial. The City further asserted Tello's felonious conduct did not constitute a dangerous condition as a matter of law.

Following a hearing, the trial court granted the motion. In its ruling and order, the trial court observed Dunlap had over 30 years of experience in roadway and intersection design and he testified in detail regarding the specific factors which made the intersection dangerous. The trial court found Dunlap's testimony, in addition to admissions found in the City's documents and made by its employees on the stand, established the intersection's dangerous condition by a preponderance of the evidence. While the trial court noted some City employees testified the intersection was not dangerous, it found these non-retained experts "to be less effective and lacking the background" of Dunlap.

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The trial court therefore determined the City "did not present sufficient evidence to overcome Plaintiffs' having proved their burden by a preponderance of the evidence." The trial court concluded, since there was sufficient evidence the intersection was dangerous, the jury should have allotted some percentage of fault to the City.

DISCUSSION

I. Standard of Review

"When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated." (Code Civ. Proc., § 657.) A new trial may be granted on all or part of the issues on the ground of "[i]nsufficiency of the evidence to justify the verdict or other decision." ( Id. , § 657, subd. (6).) A new trial shall not be granted on this ground "unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." ( Id. , § 657.) "[O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence … such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons." ( Ibid. )

Orders granting a new trial generally are reviewed for abuse of discretion, although "any determination underlying [the] order is scrutinized under the test appropriate to such determination." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ( Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) The trial court's new trial order" 'must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the movant on [the trial court's] theory.'" ( Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412 ( Lane ).)

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Moreover," 'the presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the [new trial] order.' [Citation.] [¶] … [Citation.] Therefore, the trial court's factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations." ( Lane , supra, 22 Cal.4th at p. 412.) "[S]o long as the outcome is uncertain at the close of trial-that is, so long as the evidence can support a verdict in favor of either party-a properly constructed new trial order is not subject to reversal on appeal." ( Id. at p. 414.) Thus, it is the City's burden on this appeal to demonstrate no reasonable trier of fact could have found in plaintiffs' favor on the theory the trial court set out in its new trial order.

II. The Trial Court's Orders

The trial court granted plaintiffs' motion for new trial on the ground the evidence was insufficient to justify the verdict that the intersection was not in a dangerous condition. In its ruling on the new trial motion contained in a minute order, the trial court specified its reasons for concluding the evidence was insufficient. The trial court first stated plaintiffs were contending the City failed to rebut their expert evidence "conclusively showing the intersection was in a dangerous condition with no contrary substantial evidence"; therefore, the jury's finding the intersection was not dangerous was unsupported by substantial evidence.

The trial court agreed with plaintiffs that whether the intersection's design was dangerous was "beyond common lay understanding" and therefore properly a matter for expert testimony under Evidence Code section 801, subdivision (a). The trial court stated plaintiffs' expert, Dunlap, a traffic engineer with over 30 years' experience in roadway and intersection design, opined the intersection was in a dangerous condition at the time of the accident, testifying "in detail regarding the specific factors which made the intersection dangerous" and that he reviewed documents and collision reports which reflected drivers moving below the speed limit had left-turn accidents in the intersection.

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Moreover, the intersection design presented a particular hazard as shown by Dunlap's testimony that" 'the whole entire center part of the intersection is a conflict zone, if you will, because you do have lanes of traffic crossing one another, paths of travel for the traffic crossing one another.'" The trial court found the "core of the motion" to be that Dunlap's expert testimony" 'coupled with City's documentary admissions in evidence, constituted substantial competent evidence that the design of the accident intersection was and had become dangerous as a result of unprotected left turning, and the City's failure to have implemented split phasing … caused … the intersection to remain in a dangerous condition and clear cause" of the accident.

The trial court next noted plaintiffs alleged the City did not produce "competent substantial expert opinion evidence that the intersection was not dangerous," as it withdrew its designated traffic engineering expert, Richard Haygood. While the City called Fremming and Pitcock on the issue of dangerousness, neither was designated as an expert witness. Moreover, Fremming's testimony was devoid of any explanatory supporting evidence required to support an expert opinion and Pitcock "testified the intersection was in a dangerous condition based on the foreseeable conduct of drivers."

The trial court disagreed with the City's assertion the evidence clearly established no dangerous condition existed. Instead, the trial court found: "Plaintiffs, via the testimony of Mr. Dunlap as well as admissions from some of the City's employees related to the dangerous condition dispute most definitely met their burden to establish the dangerous condition of the intersection by a preponderance of the evidence." The trial court concluded the motion needed to be granted, otherwise there "would be an abdication of the law, the facts, and the Court's duty." The minute order directed plaintiffs' counsel to submit a proposed order for the court's signature.

The formal order granting the motion stated the trial court "has considered and weighed the evidence and is convinced from the entire record, including reasonable inferences therefrom," the jury should have reached a different decision on the question

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of whether the intersection was dangerous. The order explained plaintiffs presented expert testimony primarily through Dunlap, who had been a traffic engineer for over 30 years with experience in roadway and intersection design and "testified in detail regarding the specific factors which made the intersection dangerous." It stated plaintiffs met their burden to establish by a preponderance of the evidence the intersection was dangerous pursuant to Government Code section 835, as Dunlap rendered opinions which encompassed each of the factors under that section. The order further stated the trial court found the City's non-retained experts were "less effective and lacking the background of Mr. Dunlap," and the City "did not present sufficient evidence to overcome Plaintiffs' having proved their burden by a preponderance of the evidence." While the trial court recognized Tello and James were properly found liable, the court concluded that "since the intersection was dangerous based upon the sufficiency of the evidence," the jury should have allotted the City a percentage of fault.

The City contends the formal order did not provide a sufficient statement of reasons for granting the new trial because the stated reasons are conclusory and it does not mention the definition of a dangerous condition, specify how the evidence was insufficient to support the jury's finding the intersection was not in a dangerous condition at the time of the accident, or identify the portion of the record that convinced the court the jury should have reached a different decision.

When a trial court grants a new trial, it must specify the reasons supporting each ground on which a new trial is granted. (Code Civ. Proc., § 657.) Our Supreme Court has said "that '[n]o hard and fast rule can be laid down as to the content of such a specification, and it will necessarily vary according to the facts and circumstances of each case.' [Citation.] However, [it has] emphasized on several occasions that if the ground relied upon is 'insufficiency of evidence,' the trial judge's specification of reasons 'must briefly identify the portion of the record which convinces the judge "that the court or jury clearly should have reached a different verdict or decision." '" ( Stevens v. Parke, Davis

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& Co. (1973) 9 Cal.3d 51, 60.) Although the trial court need not "cite page and line of the record," it must do more than simply identify its conclusions as to the ultimate facts in dispute. ( Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 697.) This standard is driven by the purposes of the statutory requirement, which are "to encourage careful deliberation by the trial court before ruling on the new trial motion and to make a sufficiently precise record to permit meaningful appellate review." ( Stevens , at p. 61.) An order granting a new trial based on insufficiency of the evidence cannot be upheld on this ground if the court fails to specify its reasons. ( Mercer v. Perez (1968) 68 Cal.2d 104, 118‒123.)

We need not decide whether the formal order is sufficient because the minute order provides an adequate specification of reasons. As plaintiffs point out, Code of Civil Procedure section 660 allows a trial court to determine a new trial motion by a minute order. ( Stevens v. Parke, Davis & Co. , supra , 9 Cal.3d at p. 63 [a written specification of reasons may be set forth in two places-the order itself or in a separate document filed with the clerk].) Although the minute order adopts material from plaintiffs' brief, the trial court is not prohibited from doing so as long as it uses its own mental processes in drafting the order. ( Lane , supra , 22 Cal.4th at p. 415.) It is evident from the minute order that the trial court deliberated over the issues, which satisfies its obligations under Code of Civil Procedure section 657. ( Lane , at p. 415.) While the City asserts the minute order contains some conclusory statements, it does not contend the minute order

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does not adequately set forth the trial court's reasons for granting the motion and the evidence that supports those reasons.

III. Dangerous Condition

The City argues the trial court abused its discretion in ordering a new trial because (1) the trial court's stated reasons are not supported by the record, and (2) reasonable minds could only conclude the intersection was not in a dangerous condition as a matter of law.

A. The Law Concerning Dangerous Condition of Public Property

Government Code section 835 provides that a public entity is "liable for injury caused by a dangerous condition of its property if the plaintiff 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 that 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 … a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

The element at issue here is the existence of a dangerous condition. A "dangerous condition" 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 … is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code, § 830, subd. (a).) The existence of a dangerous condition is ordinarily a question of fact and, where reasonable minds can differ on whether the conditions surrounding the public property posed a substantial risk of injury to foreseeable users exercising due care, the issue of dangerous condition must be left to the trier of fact. ( Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991-993.)

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There is no hard-and-fast rule as to what constitutes a dangerous condition-each case must depend on its own facts. ( Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069 ( Salas ).) "A dangerous condition of public property can come in several forms and may be based on an 'amalgam' of factors. [Citation.] A dangerous condition of public property may arise from its damaged or deteriorated condition, from' "the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use." '" ( Ibid. )

With respect to traffic control signals or signs, "[a] condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals … as described by the Vehicle Code …." (Gov. Code, § 830.4.) In addition, "[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code." ( Id ., § 830.8.) Nevertheless, "a public entity or public employee [is not exonerated] from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in [s]ection 830.4) was necessary to warn of a dangerous condition[,] which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care." ( Ibid. ) As a result, "a concealed dangerous condition that is a trap to motorists or pedestrians may require the posting of a warning sign but the absence of a warning sign itself is not a dangerous condition." ( Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 136.)

A dangerous condition may be found even if a third party's negligence is a proximate cause of the plaintiff's injury. ( Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754.) "When a third party's conduct is the immediate cause of a plaintiff's harm, the question becomes whether the dangerous condition 'increased or intensified' the risk of injury from the third party's conduct." ( Ibid. ) A public entity is not required to assume a third party will act negligently or recklessly; it is only required

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to provide roads that are safe for "reasonably foreseeable careful use." ( Ibid. )"' "If [] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not 'dangerous' within the meaning of [the statute]." '" ( Id. at pp. 754‒755.)

B. Whether the Trial Court's Stated Reasons are Supported by the Evidence

The trial court found Dunlap's opinion that the intersection was in a dangerous condition was dispositive of the issue because the City did not present competent expert evidence to rebut his opinion. With respect to Dunlap's opinion, the trial court stated, Dunlap testified in detail regarding the specific factors which made the intersection dangerous which were: (1) the intersection's skew; (2) the increased traffic volume; (3) the higher speed of traffic; (4) the permissive left-turn signaling; and (5) the exposure time of vehicles in the intersection. The trial court cited aspects of Dunlap's testimony- that there were accidents in left-turn movements even when drivers were moving below the speed limit and the intersection was a "conflict zone." The trial court summarized the crux of the motion-that Dunlap's testimony and the City's documentary admissions constituted substantial competent evidence the intersection had become dangerous due to unprotected left turning.

1. The Conflict Zone and Intersection's Skew

The City first asserts evidence that the intersection was a "conflict zone" cannot support a finding the intersection was dangerous due to its skew or the presence of a median because (1) a "conflict zone" is a component of any intersection that has permissive left turns, and (2) Dunlap did not present any data to support his opinions the skew and the exposure time contributed to a dangerous condition.

On the first point, as plaintiffs assert, the City misconstrues Dunlap's testimony. His opinion was that the intersection's skew and median rendered the intersection more dangerous than others where left-turning vehicles are required to wait for a gap in oncoming traffic because of the skew and the median which rendered the intersection

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wider than a typical intersection, thereby requiring a driver to remain in the conflict zone longer than a typical intersection. In reply, the City asserts this is merely a general observation that did not tend to show the intersection created a substantial risk of injury when driven with due care. But Dunlap's opinion that the intersection was in a dangerous condition was not based solely on the skew of the intersection, but rather on the five factors he identified that together created the substantial risk of injury when driven with due care.

With respect to the second point, Dunlap explained the basis for his opinion that the skew and exposure time contributed to the intersection's dangerous condition. He testified the skew was a concern for motorists because a left-turning driver from eastbound Fulkerth to northbound Golden State had to look both over their left shoulder to see if there were pedestrians crossing the intersection and forward to ensure there was no oncoming traffic. With respect to exposure time, he explained that was a function of distance, which was greater in the intersection than a typical one, and speed, which was "fairly high" in the intersection, leaving a vehicle turning left exposed while waiting for a gap in traffic to appear. While he did not calculate exposure time using an equation, he was able to estimate the additional exposure time of one to two seconds. This was sufficient to explain the basis of his opinion and does not render his opinion unreliable. ( Schreidel v. American Honda Motor Co. (1995) 34 Cal.App.4th 1242, 1253 [so long as the basis threshold requirement of foundational reliability is met, the strength of an expert's assumptions affects the weight rather than the admissibility of the expert's opinion].)

2. The Accident History

The City asserts Dunlap's testimony concerning the intersection's accident history does not support a finding "the intersection posed a 'substantial' as opposed to a 'minor, trivial or insignificant' risk of injury when used with due care." The City asserts to demonstrate a dangerous condition the previous accidents must be the same or

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substantially similar to James's accident and statistically significant. The City argues the two left-turning broadside accidents Dunlap testified to, where drivers were driving at or below the speed limit over an unspecified period at one of the busiest intersections in the City, cannot support a finding the intersection posed a substantial risk of injury and does not support the trial court's conclusion the intersection was in a dangerous condition. Instead, the City claims these accidents show the intersection was not in a dangerous condition as a matter of law.

"[A]n improvement may come to constitute a dangerous condition if increased traffic at the site, coupled with an aberrant accident history, indicates its dangerousness." ( Alvarez v. State of California (1999) 79 Cal.App.4th 720, 737 ( Alvarez ).) "[B]efore evidence of previous accidents may be admitted to prove the existence of a dangerous condition, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question." ( Salas , supra , 198 Cal.App.4th at p. 1072.) Whether" 'other persons have been injured on this same defect'" is one factor to consider when determining whether a given condition of public property is minor or insignificant as a matter of law. ( Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.) The court also "should consider both the physical description of the condition, and 'whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract [description] would indicate.' [Citation.] Where appropriate, the court should consider not only the intrinsic nature and quality of the condition, but also other factors such as the time and place of the occurrence." ( Id. at p. 243.) While the absence of similar accidents is relevant to the determination of whether a condition is dangerous, it is not dispositive on the issue. ( Salas , at p. 1071; Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.)

As the trial court found, Dunlap testified he reviewed documents and collision reports which showed drivers traveling below the speed limit had been in accidents with

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left-turning vehicles. The City is correct, however, that Dunlap only specifically identified two similar accidents and he did not state when those accidents occurred. While Dunlap apparently identified other similar left-turning broadside accidents, he did not testify how many there were or when they occurred. He did testify, however, that despite the signal warrant being triggered when there are five accidents in a 12-month period, it was not a "hard rule" and fewer than five accidents could justify installing a signal.

Despite the gaps in Dunlap's testimony, the trial court could conclude the combination of the intersection's skew, the increased traffic volume, the high speed of traffic, the existence of permissive signaling, and the exposure time, posed a substantial risk of injury to drivers when using the intersection with due care in a reasonably foreseeable manner. The intersection's skew created an increased exposure time for drivers turning left on the permissive signal and the heavier traffic required those drivers to remain in the intersection longer while waiting for a gap in traffic, thereby exposing even a careful driver to a substantial risk of injury. The two similar accidents demonstrate the danger, even if they do not establish an aberrant accident history.

3. The City's Admissions

The City contends the trial court's finding that Dunlap's expert testimony "coupled with the City's documentary admissions" established the intersection's design "had become dangerous as a result of unprotected left turning" cannot withstand scrutiny.

The City first argues the record does not support a finding it admitted permissive left-turn signaling made the intersection dangerous because (1) every engineer testified permissive left turns are safe when driven properly and accident rates are higher due to driver error; (2) the city council report and Fremming's communications to the CPUC do not admit the intersection was dangerous; and (3) Fremming, Pitcock and Bray confirmed the impetus for the project was not any perceived dangerous condition, but rather the availability of federal funding to improve congestion and air quality.

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It is not clear what documents the trial court was referring to, but in rendering his opinion, Dunlap was shown the following statement in the city council report: "[P]ermissive left turn phasing yields increased accident rates, as drivers occasionally misjudge safe gaps in traffic while turning left." Dunlap confirmed as a professional engineer it was common knowledge that permissive left-turn phasing leads to increased accident rates and people occasionally misgauge gaps in traffic. Moreover, the city council report acknowledged that given the "relatively high speed approaches" on Fulkerth and West Hawkeye, protected left-turn phasing will "decrease the potential for high speed collisions at right angles." The report's statements and Dunlap's testimony show the City was aware of the danger of permissive left-turn phasing and recognized the potential for high speed collisions, which further strengthens Dunlap's opinion that given the five factors he identified-the skew, the traffic volume and speed, the permissive signal, and the exposure time-the intersection was in a dangerous condition as drivers turning left were subjected to a substantial risk of injury when used with due care.

In finding there was substantial evidence the intersection's design had become dangerous, the trial court apparently was considering only the City's documents, not the testimony of its engineers concerning the purpose of the project, although the trial court later stated that plaintiffs met their burden to establish the intersection's dangerous condition by a preponderance of the evidence based on Dunlap's testimony and "admissions from some of the City's employees related to the dangerous condition dispute."

While the City's engineers testified safety concerns did not drive the project and City staff did not consider the intersection dangerous, Dunlap opined the City had or should have had notice of the intersection's dangerous condition when it applied for CMAQ funding in 2012, as that was when it represented to the city council that safety was part of the improvements. He further testified CMAQ included congestion management which included addressing increased traffic volume and speed, which were

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the very things that made the intersection dangerous. The trial court deciding a new trial motion "has the power 'to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact.'" ( Barrese v. Murray (2011) 198 Cal.App.4th 494, 503, italics added.) Therefore, the trial court was not required to accept the City engineer's testimony but rather could rely on Dunlap's testimony.

The City asserts its inclusion of protected left turns in the plans to improve the intersection and acknowledgment they would make the intersection safer is not an admission or evidence the intersection was in a dangerous condition. (See Alvarez , supra , 79 Cal.App.4th at p. 739 [neither the installation of other median barriers nor the determination and recommendation to install a barrier at the accident site constitutes an admission the barrierless median was a dangerous condition on the day of the accident]; Dole Citrus v. State of California (1997) 60 Cal.App.4th 486, 492‒493 [change in design manual does not show earlier design created a dangerous condition]; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 808 [scheduled installation of a median barrier in the area of the accident site is not an admission the lack of a barrier created a dangerous condition or conditions changed in a way that ended design immunity].)

But there is nothing to suggest the trial court considered the City's plans to be an admission of a dangerous condition. Rather, the trial court relied on Dunlap's testimony that the five factors together constituted the dangerous condition, plus the City's recognition permissive left-turn phasing can be dangerous, which provided sufficient evidence from which the trial court could find the intersection had become dangerous due to the confluence of the five factors.

4. Expert Testimony

The trial court next found the City failed to rebut Dunlap's testimony that the intersection was in a dangerous condition because the City did not present any expert

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testimony on the issue, which was required. The City contends expert testimony was not required because a layperson could assess whether the intersection was in a dangerous condition based on its readily apparent features. ( Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844‒845 [expert testimony is required if the matter to be proved" 'is one within the knowledge of experts only and not within the common knowledge of laymen,'" but not if the matter is "within the general knowledge of laymen"].)

We disagree. The proper and safe design of public roadways, including the use of permissive or protected traffic signal phasing, requires special expertise and is done in accordance with criteria prevailing in the traffic engineering field. The proper design of an intersection and whether that design was dangerous under conditions prevailing at the intersection at the time of the accident was not within a layperson's common knowledge. Although expert testimony was required to establish the intersection was in a dangerous condition, the City failed to call an expert on traffic engineering to rebut Dunlap's opinion.

The City next contends that contrary to the trial court's assertion in the minute order that Fremming and Pitcock were not designated as experts, plaintiffs designated them as non-retained experts and called them in their case-in-chief. We note plaintiffs did not object to Fremming's and Pitcock's testimony that the intersection was not dangerous on the ground it was impermissible expert opinion. The trial court in deciding to grant a new trial nevertheless rejected their testimony, finding Fremming's testimony was devoid of explanatory supporting evidence and Pitcock admitted the intersection was in a dangerous condition based on the foreseeable conduct of drivers.

The City asserts neither reason for rejecting their testimonies is supported by the record. The City points out Pitcock testified it is common knowledge permissive signaling increases the risk of accident only due to driver error and he was clear the intersection was not dangerous when driven with due care. Pitcock, however, also testified, when asked if he understood permissive left turns presented a danger, that "if

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you are wanting me to say, yes, it's a danger, if you are taking into account every driver that goes through the intersection, there is going to be one or two that make bad decisions." The trial court interpreted this later testimony as conceding the intersection was in a dangerous condition based on the foreseeable conduct of drivers.

The City asserts Fremming testified he was familiar with the intersection and had been out to evaluate it numerous times during the course of the reconstruction project. The City points out Fremming testified in his engineering judgment there was nothing to indicate the intersection was in a dangerous condition, and to the extent he lacked data on which to base his opinions, Dunlap's opinions suffered from the same deficiencies. Fremming, however, did not explain why he believed the intersection was not dangerous or why Dunlap's opinion was wrong.

In sum, it was for the trial court to reweigh the conflicting testimony concerning dangerousness and it was free to draw reasonable inferences contrary to the jury. ( Mercer v. Perez , supra , 68 Cal.2d at p. 112.) Given the lack of detail in Fremming's testimony, the trial court did not abuse its discretion in rejecting the City's claim that it was clearly established that no dangerous condition existed.

5. Whether the Intersection is Dangerous as a Matter of Law

Finally, the City claims the intersection was not dangerous as a matter of law. Relying on Government Code section 830.2, it argues based on the trial evidence reasonable minds could only come to one conclusion-that the intersection was not dangerous. We disagree.

Government Code section 830.2 provides: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition

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created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used."

However, "[w]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion." ( Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30.)

Here, as we have previously stated, plaintiffs' expert, Dunlap, testified the intersection was dangerous due to a confluence of factors, namely, the intersection's skew, the increased traffic volume, the high speed of traffic, the existence of permissive signaling, and the exposure time, which together created a substantial risk of injury to left-turning vehicles when used with due care in a reasonably foreseeable manner. The intersection's skew created an increased exposure time for drivers turning left on the permissive signal and the heavier traffic required those drivers to remain in the intersection longer while waiting for a gap in traffic, thereby exposing even a careful driver to a substantial risk of injury. The two similar accidents demonstrate the danger when due care is exercised, as the cars in those accidents were traveling below the speed limit, even if they do not establish an aberrant accident history.

The City recognizes a dangerous condition may consist of multiple factors but argues plaintiffs did not establish the intersection was dangerous because Dunlap conceded the skew, speed limit and increased traffic were not dangerous in themselves, he had no data on exposure time or turning counts to analyze the permissive signal, he relied on a statistically insignificant accident history, and state warrant requirements were not met. The City likens this evidence to the evidence the public entity presented in Thimon v. City of Newark to satisfy its initial burden on summary judgment to show there was not a dangerous condition at an intersection which the plaintiff alleged resulted from a combination of factors. ( Thimon v. City of Newark , supra , 44 Cal.App.5th at pp. 757‒ 758.) There, the appellate court rejected the plaintiff's argument the public entity was

35

required to address the combination of factors together, instead finding the public entity satisfied its burden by presenting evidence concerning each allegedly dangerous feature, the absence of accidents at the intersection, and a study that concluded a traffic signal was not warranted based on the criteria for traffic signals in the California MUTCD. ( Ibid .)

The difference here, however, is that the combination of factors worked together to create the dangerous condition. Thus, whether the factors were not dangerous when considered individually does not require a fact finder to reject Dunlap's testimony concerning the dangerous condition. And as we have explained about the accident history, it merely demonstrated that the intersection was dangerous even when due care was exercised. Finally, despite the signal warrant being triggered when there are five accidents in a 12-month period, Dunlap testified it was not a "hard rule" and fewer than five accidents could justify installing a signal. We cannot say these factors were so trivial, minor, or insignificant that the intersection was not dangerous as a matter of law.

The City points out that it cannot be liable for its failure to provide a traffic signal unless it is necessary to warn of a dangerous condition that is not readily apparent, citing Government Code section 830.8. But Dunlap's testimony indicated the intersection was dangerous not only because of the failure to provide protected left turns or split phasing but also because of the conjunction of other factors such as the intersection's skew and the increase in traffic at high speeds. As plaintiffs point out, when a dangerous condition is created by the misleading nature of signals installed by a public entity, the immunity of section 830.8 does not apply. ( Bakity v. County of Riverside , supra , 12 Cal.App.3d at p. 31; Briggs v. State of California (1971) 14 Cal.App.3d 489, 497; Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 174.) Here, there is at least a question of fact whether that exists.

The City complains it should not be charged with anticipating that a person such as Tello would use the property in a criminal way, namely, by driving 30 mph over the

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speed limit and pleading guilty to felony reckless driving. ( Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1042 [" 'a public entity is only required to provide roads that are safe for reasonably foreseeable careful use'" and "is not charged with anticipating that a person will use the property in a criminal way"].) The City points out that even plaintiffs' accident reconstruction expert testified the accident would not have happened if Tello had been driving the speed limit. But the City ignores the accident history showed accidents occurred even when vehicles were traveling at or below the speed limit.

We conclude the trial court did not abuse its discretion by granting a new trial. The City has not demonstrated no reasonable finder of fact could have found the intersection was in a dangerous condition when the accident occurred. ( Lane , supra , 22 Cal.4th at p. 412.) At the close of trial the outcome was uncertain and the evidence would have supported a finding in plaintiffs' favor on this issue. ( Id. at p. 414.) Consequently, the City has not established an abuse of discretion that would justify reversing the new trial order.

IV. Harmless Error

The City argues that even if the trial court properly determined the weight of the evidence proved the intersection was in a dangerous condition, plaintiffs were not prejudiced by the judgment against them because design immunity precluded liability as a matter of law and plaintiffs cannot establish the City lost immunity due to changed conditions.

"A new trial may not be granted 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' (Cal. Const., art. VI, § 13.) '" '[P]rejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error. [Citation.] … [¶] Accordingly, the order granting a new trial is valid only if prejudicial

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error occurred at the trial.'" '" ( Buckner v. Milwaukee Electric Tool Corp. (2013) 222 Cal.App.4th 522, 538 ( Buckner ).)

" '" The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, his discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judge's ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion." '" ( Buckner , supra , 222 Cal.App.4th at p. 538.)

Because the jury found the property was not in a dangerous condition at the time of the accident, it did not reach the questions in the special verdict form whether: (1) the City had design immunity; (2) the City's plan or design had become dangerous because of a change in physical conditions; (3) the City had notice of the dangerous condition created by the change in physical conditions; and (4) the City either had reasonable time to obtain the funds and carry out the necessary corrective work to conform the property to a reasonable plan or design, or was unable to correct the condition due to practical impossibility or lack of funds, but did not adequately warn of the dangerous condition. The City asserts had the jury reached these questions, it would have been compelled to find the City had established the elements of design immunity and plaintiffs failed to establish the design had become dangerous due to a change in physical conditions.

A public entity may avoid liability for the dangerous condition of its property by the defense commonly known as design immunity. "A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to

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construction; and (3) substantial evidence supporting the reasonableness of the plan or design." ( Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66.)

Here, the parties agree the City established the elements of design immunity. Design immunity persists, however, "only so long as conditions have not changed. Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard." ( Baldwin v. State of California (1972) 6 Cal.3d 424, 434, fn. omitted.)

A plaintiff must establish three elements to demonstrate loss of design immunity: "(1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings." ( Cornette v. Department of Transportation , supra , 26 Cal.4th at p. 66; Gov. Code, § 830.6.)

"Thus, there are at least two predicates to loss of design immunity: changed conditions and notice." ( Compton v. City of Santee (1993) 12 Cal.App.4th 591, 598.) To prove an accident history placed a public entity on notice of a dangerous condition, the plaintiff must show the accident rate was "statistically aberrant, i.e., unusual or excessive in some respect." ( Id. at pp. 598‒600.) An increase in traffic alone is insufficient to establish the loss of design immunity, as increased traffic does not demonstrate "a dangerous condition of which the State is aware. " ( Alvarez , supra , 79 Cal.App.4th at p. 737, italics added; Mirzada v. Department of Transportation , supra , 111 Cal.App.4th at p. 808 ["[a]n increase in traffic alone … is insufficient to establish loss of design

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immunity"]; Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 59; Higgins v. State of California (1997) 54 Cal.App.4th 177, 188.)

The City asserts plaintiffs failed to present substantial evidence of any changed physical condition that would support a finding the City lost design immunity. The City argues because plaintiffs asserted the changed conditions consisted of increased traffic, they were required to produce evidence that that increase led to a statistically significant or aberrant accident rate or triggered a mandatory warrant for protected left turns, yet they showed only that there were two prior left-turn broadside collisions at the intersection which were at or below the speed limit.

We disagree that the absence of evidence of an aberrant accident rate is dispositive. As plaintiffs assert, they presented the following evidence of changed conditions: the intersection was signalized pursuant to a design in 1991; in the 26 years from 1991 to the date of the accident, traffic at the intersection had increased dramatically due to the increase in population and construction of surrounding developments such as the shopping center and transit center; and, as a result, the frequency and size of the gaps in traffic negatively affected drivers attempting to turn left onto Golden State. We agree with plaintiffs this constitutes substantial evidence the 1991 plan or design for a signalized intersection without a controlled left-hand turn signal had become dangerous.

This leaves the issue of notice of the dangerous condition created by the increased traffic. While statistically significant or aberrant accident rates provide notice of the dangers associated with increased traffic; here, there was other evidence to show the City had notice of the changed conditions. As plaintiffs assert, they produced evidence the City was aware of the increase in traffic as well as the dangerous condition it created. Moreover, there was evidence the City was aware of the dangerous condition as of at least 2012. Thus, there was evidence from which the jury could find the City had notice

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of the dangerous condition created by the change in physical conditions. ( Cornette v. Department of Transportation , supra , 26 Cal.4th at pp. 66, 72.)

Finally, there was evidence that in the ensuing years after the City became aware of the dangerous condition, it initiated a project to alter the intersection, but the plans were not completed, and split phasing was an interim remedy the City could have implemented to ameliorate the dangerous condition. As such, it is fairly debatable whether the City had reasonable time within which to obtain the funds and carry out the necessary remedial work to remedy or otherwise ameliorate the dangerous condition.

Whether the intersection had become dangerous due to changed conditions was a question of fact. We cannot say as a matter of law that, if the jury found the property was in a dangerous condition at the time of the accident and design immunity applied, plaintiffs would not have been able to prove the elements necessary to establish loss of design immunity. Therefore, there was no prejudice. "The trial court is in the best position to determine the issue of prejudice; we will not independently review that decision or substitute our decision for the trial court's." ( Buckner , supra , 222 Cal.App.4th at p. 539.) There was adequate support for the trial court's ruling, and we will not reverse it.

DISPOSITION

The order granting a new trial is affirmed. Costs on appeal are awarded to plaintiffs.

WE CONCUR: PEÑA, ACTING P. J. MEEHAN, J.