California Legal Brief

The Rule of Pagan v. City of San Rafael is that a public entity is entitled to summary judgment on dangerous condition claims when the alleged dangers are open and obvious to users exercising due care, under circumstances where the plaintiff cannot establish liability through expert testimony that relies on unpleaded theories of liability, inadmissible hearsay, speculation without foundation, and legal conclusions about regulatory compliance.

Appeal from order granting summary judgment in Marin County Superior Court.

Defendant Appellant was Kaylin Pagan, a minor — the passenger injured when the vehicle she was riding in hydroplaned on a wet road, crossed the double yellow line, and went down a hillside when the driver overcorrected and lost control.

Plaintiff Respondent was City of San Rafael — the public entity that maintained the roadway where the accident occurred.

The suit sounded in dangerous condition of public property. [No cross-claims described in the opinion.]

The key substantive facts leading to the suit were that on a rainy January afternoon in 2018, 16-year-old Pagan was a passenger in a car driven by her 16-year-old friend Velasquez on Lincoln Avenue in San Rafael near where it curves left into Los Ranchitos Road. Velasquez was driving 30-40 mph in a 30 mph zone when the car hydroplaned on the wet roadway, crossed the double yellow line, and when Velasquez attempted to correct by oversteering, she lost control and the car went off the roadway down a hillside. Both girls knew the road was wet and that more caution was required in wet conditions. Velasquez was familiar with the road, having driven it three times before, and was cited for unsafe turn and unsafe speed.

The procedural result leading to the Appeal: The trial court granted summary judgment for the City, ruling that the alleged dangerous conditions (lack of warning signs about the curve, lack of warnings about slippery conditions, and lack of barriers) were open and obvious as a matter of law, particularly that the wet roadway conditions were obviously dangerous and both girls were aware of the enhanced risks.

The key question(s) on Appeal: 1. Whether the trial court properly granted summary judgment on the ground that the alleged dangerous conditions were open and obvious as a matter of law. 2. Whether plaintiff's expert testimony created triable issues of fact regarding the dangerous condition claims.

The Appellate Court held that summary judgment was properly granted because the alleged dangerous conditions were open and obvious to users exercising due care, the plaintiff's expert testimony was inadmissible due to lack of foundation, speculation, reliance on hearsay, and legal conclusions, and the plaintiff could not defeat summary judgment by relying on unpleaded theories about defective roadway surfaces that were not alleged in the complaint.

The case is inapplicable when the alleged dangerous conditions are concealed or not readily apparent to users exercising due care, when the plaintiff's expert testimony meets admissibility requirements and is based on proper foundation, or when the plaintiff's theories of liability are properly pleaded in the operative complaint.

The case leaves open questions about what specific factual circumstances might constitute a non-obvious dangerous condition on public roadways, the standards for expert testimony admissibility in dangerous condition cases involving complex engineering issues, and the scope of public entities' duties to install warning signs or barriers in locations that may be "safer" with such installations.