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LAST APPELLATE DISTRICT
_______________________________________________
ROBERT W. SMITH and MARGARET D. SMITH,
Respondents,
vs.
CITY OF ELMWOOD, et al.,
Appellants.
_______________________________________________
DOCKET No. 123456789
Cork County Superior Court No. 987654321
_______________________________________________
RESPONDENT'S BRIEF
_______________________________________________
Appeal from the Judgment of the
Superior Court of California, County of Cork
Honorable Richard A. Jones, Judge
CHARLES J. GREEN
Attorney at Law
700 Center Street
Midvale, CA 95555
Telephone: 415/555-1212
Attorney for Respondents
NATURE OF ACTION AND RELIEF SOUGHT
JUDGMENT OF THE SUPERIOR COURT
SUMMARY OF FACTS
SUMMARY OF ARGUMENT
ARGUMENT
1. Appellant City's failure to provide an adequate record is grounds for dismissal of its appeal.
2. Section 1806 does not provide immunity for streets accepted into the Elmwood street system before 1957, nor does it shield the City from liability for injuries resulting from the City's own misfeasance.
A. Section 1806: history and legislative intent
B. Before the enactment of 1806, any city action showing an assumption of control over a road sufficed to show acceptance.
C. Section 1806 does not apply retroactively.
D. Section 1806 does not provide immunity from liability arising from the city's misfeasance.3. Plaintiffs introduced sufficient evidence to support the trial court's ruling that Maple Street was accepted into the Elmwood street system under pre-1957 law.
4. The evidence amply supports a finding that the City constructed and maintained Maple Street.
CONCLUSION
CASES
Benitez v. City and County of San Francisco (1978) 77 Cal.App.3d 918, 144 Cal.Rptr. 15
Clay v. City of Los Angeles (1971) 21 Cal.App.3d 577, 98 Cal.Rptr. 583
County of Kern v. Edgemont Dev. Corp. (1963) 222 Cal.App.2d 874
Erikson v. Sullivan (1947) 81 Cal.App.2d 790, 285 P.2d 31
Estate of Teel (1944) 25 Cal.2d 520, 154 P.2d 384
Matthews v. County of San Bernardino (1991) 223 Cal.App.3d 623, 285 Cal.Rptr. 422
Nelson v. City of Gridley (1980) 113 Cal.App.3d 87, 169 Cal.Rptr. 757
Rink v. City of Cupertino (1989) 216 Cal.App.3d 1362, 265 Cal.Rptr. 404
Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 152 Cal.Rptr. 65
Union Transport C. v. Sacramento County (1954) 42 Cal.2d 235, 267 P.2d 10
STATUTES
Streets and Highways Code 941
Streets and Highways Code 1806
OTHER AUTHORITY
61 Op. Atty. Gen. Ca. 466, 468-69 (1978)
NATURE OF ACTION AND RELIEF SOUGHT
Defendant and appellant City of Elmwood (the "City") appeals from a judgment against it in a lawsuit filed in Cork County Superior Court by plaintiffs and respondents Robert W. Smith and Margaret D. Smith (the "Smiths"). The Smiths sought to recover for personal injuries suffered in a tractor-trailer tip-over occurring on Maple Street in Elmwood, near the Elmwood Navy Base.
JUDGMENT OF THE SUPERIOR COURT
The case was tried before the Honorable Richard Jones, Judge, in two phases. The first phase was a "mini-trial" to the court without a jury, to decide whether the City was immune from liability for the Smiths' injuries under Streets and Highways Code 1806. The City had raised this issue at trial, for the first time, as an affirmative defense. The court permitted the City to amend its answer to plead immunity under 1806 as an affirmative defense. At the same time, the court permitted plaintiffs to amend their complaint to allege a dangerous condition of public property. At the conclusion of the mini-trial, the court ruled that 1806 did not bar plaintiff's action. The remaining issues were tried to a jury.
Judge Jones rendered his final judgment for plaintiffs on the return of the jury's verdict finding the City liable to Robert Smith in the sum of $107,340.75 and to Margaret Smith in the sum of $19,329.75. Judgment was entered on August 14, 199_. Defendant City timely filed its Notice of Appeal from the judgment on October 11, 19__. Plaintiffs timely filed a Notice of Cross Appeal from the judgment on November 1, 19__.
SUMMARY OF FACTS
On August 18, 19__, plaintiff Robert Smith was driving a truck in which his wife, Margaret Smith, was a passenger. Both were injured when the truck tipped over while negotiating a turn onto Maple Street, at a point where a storm drain had been positioned unusually far from the curb, resulting in a dip in the pavement in the travelled way. The Smiths based their successful action against the City on the theory of a dangerous and defective condition of public property.
On appeal, the City of Elmwood raised the following issues:
1. Was the trial court's determination that Maple Street was accepted within the street system of the City of Elmwood, so that the City was not immune from liability under Streets and Highways Code 1806, supported by substantial evidence?
2. Did the trial court properly conclude, on the basis of substantial evidence, that the City of Elmwood was responsible for creating a dangerous condition on Maple Street?
3. Did the trial court properly conclude, on the basis of substantial evidence, that the City of Elmwood was estopped to raise 1806 as an affirmative defense?
The Smiths anticipate that it will be unnecessary to reach the third issue, since either of the first two is dispositive of the appeal.
SUMMARY OF ARGUMENT
The City has failed to provide the court with a complete record. All the trial exhibits relating to the issues raised in this appeal were omitted from the Clerk's Transcript, apparently through clerical error. The City did not request a correction within the time allowed and the Court denied its subsequent efforts to remedy the defect. As a result, the record is devoid of evidence. This is grounds for dismissal of this appeal, which seeks reversal precisely on the basis that there was insufficient evidence to support the trial court's ruling.
The City argues that it is immune from liability for the Smiths' injuries under 1806, which provides that a city shall not be held liable for failure to maintain any road unless and until the road has been accepted into the city street system by resolution of the governing body. The City's position is that there is no resolution accepting Maple Street into the city street system.
This argument does not apply. Section 1806 was enacted in 1957. By an agreement with the owners, the City acquired the property on which Maple Street is located in 1910. Nothing in the statute's language or in case law suggests that 1806 applies retroactively. At trial, plaintiffs introduced into evidence various ordinances the City of Elmwood enacted before 1957, reflecting that the City opened and subsequently controlled Maple Street as a dedicated public street. Taking into account the case and common law in force before the enactment of 1806, these ordinances evidence "official action" sufficient to support the trial court's decision that the City had accepted Maple Street as part of the city street system.
Even if the City had acquired Maple Street after 1806 came into force, it would not be immune from liability if it had been responsible for creating a dangerous condition. The legislature intended 1806 to insulate a city from liability arising from situations in which it had never maintained an unaccepted street. When a city undertakes to build or maintain a road, the courts have established that it is liable for damages resulting from its own negligence in so doing. At trial, plaintiffs presented evidence that the City of Elmwood had indeed carried out repairs to Maple Street over the years. The City was unable to present any admissible evidence rebutting plaintiffs' position. Plaintiffs' evidence was sufficient to support a finding that the City should be liable in damages for injuries resulting from a dangerous condition of the roadway.
ARGUMENT
1. Appellant City's failure to provide an adequate record is grounds for dismissal of its appeal.
During the mini-trial before Judge Jones on the issue of immunity under 1806, plaintiffs offered into evidence numerous exhibits that were duly admitted and recorded in the clerk's Exhibit Record. The City designated these exhibits, along with the exhibits pertaining to the second phase of the trial, as part of the clerk's transcript on appeal. Plaintiffs and respondents adopted appellant's designation of papers and records in their own designation of the record on appeal. For unknown reasons, copies of the exhibits introduced in the course of the mini-trial were not bound into the clerk's transcript. Apparently the City did not discover the omission or request a correction within the period allowed by law. This Court has denied no fewer than three attempts by the City's attorneys, through a variety of procedural means, to rectify this clerical error. These were the very documents relevant to the issues raised in the present appeal.
Arguably, the absence of supporting evidence from the record on appeal is grounds for dismissal. On appeal, it is up to the appellant to make an affirmative showing of error by an adequate record. Error is never presumed; a judgment of the lower court is presumed correct. See, e.g., Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712, 152 Cal.Rptr. 65.
The City has attempted to remedy the deficiency by including, in its opening brief, a list of exhibits accompanied by a brief summary of the contents of each. In a case presenting somewhat similar facts, an appellate court ruled that an appeal must be dismissed. The defendant and appellant, after long delay, filed a partial transcript accompanied by a purported "statement of facts on appeal." The plaintiff and respondent moved to dismiss the appeal, or in the alternative for an order requiring the preparation of a reporter's transcript of the entire proceedings. The court dismissed the appeal. Erikson v. Sullivan (1947) 81 Cal.App.2d 790, 791, 285 P.2d 31.
If this court decides to allow appellant to proceed without permitting the City to correct the clerk's error, respondents will cite to those portions of the Reporter's Transcript of the mini-trial that reflect plaintiffs' attorney's analysis of certain key exhibits, and also to the clerk's Exhibit Record, which identifies all the documents admitted into evidence. Respondents will also refer to the brief summaries of each exhibit the City provided in its opening brief. The court may wish to consider these descriptions insofar as they constitute the City's admissions or stipulations to the content of the exhibits.
2. Section 1806 does not provide immunity for streets accepted into the Elmwood street system before 1957, nor does it shield the City from liability for injuries resulting from the City's own misfeasance.
A. Section 1806: history and legislative intentStreets and Highways Code 1806 provides:
No public or private or road shall become a city street or road until and unless the governing body, by resolution, has caused said street or road to be accepted into the city street system; nor shall any city be held liable for failure to maintain any road unless and until it has been accepted into the city street system by resolution of the governing body.The legislature enacted 1806 in 1957. Its purpose was to abrogate the common law rule embodied in a 1954 decision of the California Supreme Court, holding that no formal acceptance of an offer of dedication of a road or street is necessary, and that an implied acceptance of dedication to a public use is a sufficient basis on which to hold that a public entity has accepted the road or street into its road system with the concomitant responsibility for making repairs. Union Transport Co. v. Sacramento County (1954) 42 Cal.2d 235, 244, 267 P.2d 10.
Under the rule expressed in Union Transport, cities were liable for injuries caused by dangerous conditions on substandard roads that the public indisputably used but that the city had not built or maintained. Such roadways, referred to as "paper" streets, were often drawn on subdivision maps and later dedicated as a public way by the developer. In many cases the developer did not construct the road to the appropriate standard, preferring to leave this expensive task to the city in which the road was located. By enacting 1806, the legislature gave expression to a policy
to require the subdivider to do the original work of placing the streets in a proper condition before the maintenance thereof is taken over by a city or county, and to relieve the public to this extent of the burden that would otherwise exist.
Rink v. City of Cupertino (1989) 216 Cal. App. 3d 1362, 1368, 265 Cal. Rptr. 404.
B. Before the enactment of 1806, any city action showing an assumption of control over a road sufficed to show acceptance.The effect of 1806 is to require the City's formal act of acceptance of a dedicated street before it can be held liable for any failure to maintain the roadway. But before 1957 no formal act of acceptance was necessary. Union Transport, supra, 42 Cal.2d at 244. In Union Transport, the supreme court summarized pre-1957 law as follows: "Any action of the responsible public officials showing an assumption of control over the road is a sufficient recognition of the road as a public highway." Id., at 244. The court held that the defendant city had demonstrated its assumption of control over the subject road by dispatching road-mending equipment there, even though no repairs had been carried out. Ibid.
C. Section 1806 does not apply retroactively.There is no indication that either the legislature or the courts intended 1806 to operate retroactively, so as to require formal "re-acceptance" of streets already accepted into the city system under the former law. Nor did the City introduce any evidence to show that Elmwood carried out any such formal reacceptance of existing city streets. The statute's plain language ("no public or private street or road shall become a city street or road . . .") (emphasis added) suggests the contrary.
The issue of retroactivity was raised, but not decided, in a single case. In Rink v. City of Cupertino, supra, the issue was whether 1806 immunized a city from responsibility for maintaining a road located on former county land that the city had annexed in 1981. In 1946, years before the enactment of 1806, the road in question had been accepted into the county's road system. But the city had never passed a resolution, post-annexation, formally accepting the road into the city street system as required by 1806. Summary judgment for the City was granted. Plaintiffs appealed. They argued that (1) accepted county roads automatically became accepted city roads on annexation by the city and (2) 1806 could not be applied retroactively to defeat their claim that the city was responsible for maintaining the road. But the court never reached the issue of retroactivity. It held that 1806 was indeed controlling, although not because it operated to overcome the pre-1954 acceptance of the road into the county system. Instead, the court reasoned that, at the time of annexation, 1806 was already in force. The city was free to accept roads into its system or to reject them; under 1806, in contrast to the common law, the only valid method of acceptance is by formal resolution.
In the present case, the City first acquired the land now occupied by Maple Street for the purposes of constructing a public road in 1910, and Maple Street existed on that site for years before the enactment of 1806. The evidence introduced at trial was sufficient to support a ruling that Maple Street was accepted into the Elmwood street system under the common law rule of Union Transport, supra, before the enactment of 1806.
D. Section 1806 does not provide immunity from liability arising from the city's misfeasance.Section 1806 immunizes municipalities from liability arising from failure to maintain a road. The courts have determined that it does not provide a shield from liability for injuries resulting from a city's misfeasance in cases where the city has actually created a dangerous condition by negligently undertaken repairs or construction. In Nelson v. City of Gridley (1980) 113 Cal.App.3d 87, 169 Cal.Rptr. 757, the court rejected defendant city's argument that 1806 shielded it from liability in a case in which a motorcyclist was injured by a cable barrier stretched across a city-owned access road:
Suffice it to say that immunity under the above provision [1806] lies for failure to maintain a road not accepted into a city street system. Such immunity does not lie where the city undertakes to create a dangerous condition thereon which exposes those using the public property to a substantial risk of harm.In Matthews v. County of San Bernardino (1991) 223 Cal.App.3d 1623, 285 Cal.Rptr. 422, the plaintiff was injured in an accident allegedly caused by the unsafe condition of a roadway not officially accepted as part of the county road system. Id. at 1626-27. Judgment was entered after defendant county's motion for summary judgment was granted. Plaintiff appealed, and the court reversed. At issue was the application of Streets and Highways Code 941, which provides immunity for counties similar to that provided for cities by 1806, and in almost identical language. The county raised 941 as an affirmative defense. Id., at 1630. The court concluded:
Id., at 97 (emphasis in original ).
County's reliance on Streets and Highways Code 941, which simply precludes liability for failure to maintain unaccepted roads, does not consider the effect of Government Code 831.3, which specifically excludes from immunity any act of grading, reconstruction, replacement, maintenance or repair to unaccepted roads if such work was not done with reasonable care and if such work left the road in a more dangerous or unsafe condition than it was in before the work commenced.The court went on to cite language from a practice guide indicating that Government Code 831.3 would interact in the same way with Streets & Highways Code 1806 as with the similarly worded 941. Id., at 1632-33. Finally the court reversed the order of summary judgment for the county, on the basis that county "was not entitled to absolute immunity as a matter of law merely because the road in question was not officially accepted into the county road system, without regard to whether County graded or maintained such unaccepted road . . . ." Id., at 1633.
Matthews, supra, at 1631 (emphasis in original).
Thus, even if the court concluded that the formal acceptance mandated by 1806 applied to Maple Street, the City would nonetheless not be immune from the effects of its own negligence in repairing, maintaining or constructing the street in such a way as to create a dangerous condition. The documents in evidence are sufficient to support a finding that the City of Elmwood carried out repairs and construction on Maple Street.
3. Plaintiffs introduced sufficient evidence to support the trial court's ruling that Maple Street was accepted into the Elmwood street system under pre-1957 law.
The City attacks the sufficiency of the evidence to support the trial court's ruling. Where the appellate court reviews the sufficiency of the evidence, all of the evidence most favorable to the respondent must be accepted as true, and the unfavorable evidence discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed. Estate of Teel (1944) 25 Cal.2d 520, 527, 154 P.2d 384.
The parties introduced substantial evidence of the City's official action sufficient to show acceptance of Maple Street into the Elmwood street system under the common law in force before 1957, when 1806 was enacted. The following paragraphs are extracted from the Reporter's Transcript on Appeal in this matter and consist of relevant portions of the transcript of the mini-trial of July 23, 1991, on the 1806 issue, before Judge Jones. Mr. Green is the plaintiffs' attorney.
Mr. Green: With the court's permission I would like to identify those documents and provide just very brief comment as to the significance, if I may.
The Court: Very well.
Mr. Green: Thank you, your honor. Let me start with plaintiff's number 11, which is Ordinance number 3099. And I only make reference to that document because plaintiff's 2, which I consider the seminal document, refers to Ordinance number 3099.
Plaintiff's number 2 is the deed dated August 30th, 1910. It identifies the City of Elmwood as the party of the second part, and on page three, recites quote, "the party of the first part, being the Elmwood and Santa Rita Consolidated Railway Company, does hereby dedicate and convey to said party of the second part for uses and purposes of public streets and highways, all its right, title and interests," close quotes.
We have -- there's been a representation by the city that this deed refers to Maple Street.
Next is exhibit 6, which is the city council's resolution number, it's either 19725 or 10725. It is hard to read. In any event, it is dated August 28th, 1941, it's entitled Resolution determining the necessity of opening a certain street over certain lands and dedicating and setting apart such lands for public street and highway purposes and naming said public street. It recites in part, "it is necessary and convenient that a public street and highway be opened on and over those certain lands, belonging to and situated in the city."
Continuing, "that the lands above described are hereby dedicated and set apart for public street and highway purposes; and be it further resolved that said public street shall be known and designated as Maple Street."
Again, that's a resolution of the city council dated 1941. Sixteen years before the enactment of 1806. I submit that at the time this resolution was enacted, it was a little bit difficult to foresee what magic language the legislature might require. This, I submit, is our resolution.
Continuing. Plaintiff's 7 is dated January 4th, 1943. It is a permit to use between the City of Elmwood and the United States Navy in which the City of Elmwood gave to the U.S. Navy a permit to use. It provides and I quote, "this permit includes the right of ingress and egress on other lands of the permitter" and describes a strip of land 104 feet wide, being known as Maple Street.
Next is plaintiff's 8, which is the resolution granting the United States a conditional permit to occupy barricade and exclude persons from Maple Street between 7th Street and 14th Street. It provides for the closing of Maple Street. It is a resolution of the city council and again there would be no purpose for such resolution unless the city had a sufficient ownership interest in the street or at least an easement interest in the street.
Next, your honor, is exhibit 9, which is a memorandum of agreement regarding condemnation dated March 26th, 1943 and on page three of that agreement, paragraph three, it provides open quotes "the city will convey to the government for consideration of one dollar, the bed of Maple Street for its entire length from 7th Street to the bridge overpass having a width of 104 feet, shown on said attached plan, subject to a public easement for highway purposes."
Next document, your honor, is exhibit 12, which is a deed dated July 23rd, 1943. It is between the City of Elmwood through the Board of Port Commissioners and the United States Navy. On page three, there is the following language, open quotes "subject to a public easement for highway purposes over the entire area of said parcel," close quotes.All plaintiff's exhibits were admitted into evidence. The court ultimately ruled in plaintiffs' favor, finding as follows:
While the court does not find that there was an enactment or adoption of the resolution accepting Maple Street within the city street system after 1957, the date of the enactment of 1806, the court nevertheless finds official action on the part of the CITY OF ELMWOOD the legal effect of which was to accept Maple Street within the street system of the CITY OF ELMWOOD.
Said decision is based in part upon Exhibit Nos. 2,4,6 and 7, as well as others, by which the CITY OF ELMWOOD dedicates Maple as a public street and by which the CITY OF ELMWOOD gives the United States permission to use Maple.Plaintiffs' evidence amply supports the court's ruling. Plaintiffs introduced documentary evidence to show that the City of Elmwood had, since 1910, maintained an easement across the land on which Maple Street was located, initially acquired for the purpose of a public road; that the City, in 1941, passed a resolution dedicating the easement as a public street, to be called Maple Street; and that at various times thereafter before 1957, the City had given other entities permission to use or close the road. As a matter of law, the court could reasonably conclude that these official acts by the City were sufficient to constitute acceptance of Maple Street into the Elmwood street system.
Appellant City relies heavily on the distinction between "dedication" and "acceptance," a distinction emphasized in various decisions addressing the application of 1806. AOB at 18-19. The City cites an Attorney General's Opinion, which does, indeed, clearly differentiate between the two terms, in a case involving Streets and Highways Code 941:
[A] two-step procedure is required for imposing upon a county the responsibility of maintaining roads dedicated to public use. First, the offer of dedication is accepted, making them "public roads"; second, if the roads generally meet county highway construction standards, the appropriate resolution is passed, accepting the roads into the county highway system and thus the responsibility for their maintenance.But the City fails to distinguish the facts of its acquisition of Maple Street from those addressed in the Attorney General's Opinion just cited. The questions presented in that opinion arose from a situation in which a subdivider made an offer of dedication of private land to a county; the issue was whether the county could accept the offer of dedication without accepting the responsibility of maintaining the roads before they became part of the county highway system by passage of the appropriate resolution. Id., at 469. This is the situation that 941 and 1806 were designed to address. The same situation is presented in Benitez v. City and County of San Francisco (1978) 77 Cal.App.3d 918, 920-922, 144 Cal.Rptr. 15, and County of Kern v. Edgemont Dev. Corp. (1963) 222 Cal.App.2d 874, 879, cases holding that the city or county was immune from suit under 1806 for liability arising from failure to maintain a "paper" street dedicated to the entity by a subdivider but never accepted by resolution or maintained by the entity.
61 Op. Atty. Gen. Ca. 466, 468-69 (1978).
The situation in the case now before the court is entirely different from that presented in Benitez and County of Kern. The evidence shows that the easement on which Maple Street was constructed belonged, at all relevant times, to the City, not to a subdivider; that the City, not a subdivider, "dedicated" the easement to use as a public street; and that the City actually opened Maple Street, under a formal resolution.
The courts have found a city responsible for maintenance of a road in a similar situation. In Clay v. City of Los Angeles (1971) 21 Cal.App.3d 577, 98 Cal.Rptr. 583, homeowners sued the city for failure to maintain a public road providing access to their property. The city had accepted a dedication of land for a public street, opened and constructed the roadway and maintained it over a period of years. The court held that the city was obliged either to repair the road or to compensate the homeowners for the loss of access to their property.
Where, as here, a city accepts a dedication and proceeds to open, establish and maintain a street, persons purchasing and constructing homes on lots abutting that street reasonably expect that the street will continue to exist in a suitable condition.In a footnote, the court added: "Our discussion is limited to that precise factual situation and we do not purport to deal with so-called "paper" streets where dedicated streets are described on a tract map but have not been opened or developed." Ibid., fn.1.
. . . It therefore appears reasonable that where a dedication has been accepted and acted upon by way of creating a street, the municipality should be charged with the duty of keeping the dedicated property open, in repair and free from such obstructions, hindering encroachments or nuisances which would destroy in whole or in part the use as a public thoroughfare and should be held liable for injuries caused by neglect to do so.
Clay, supra, 21 Cal. App. 3d at 584 (emphasis added).
Appellant's arguments are unconvincing. The evidence is sufficient, as a matter of law, to support the court's finding that Maple Street was an Elmwood city street, and that the City is not immune from liability under 1806 for failure to maintain Maple.
4. The evidence amply supports a finding that the City constructed and maintained Maple Street.
Even if 1806 applied in this case, the trial court could have found, on the basis of the evidence, that the City had constructed and maintained Maple Street and would thus be liable for damages arising from its own misfeasance. The City argues that plaintiffs introduced no substantial evidence that it created the alleged dangerous condition at the corner where the Smiths' truck encountered the dip in the pavement and overturned. This is not the case.
As already set forth above, plaintiffs introduced evidence that the City, at all times since 1910, owned the easement on which Maple Street is located. On that basis, the court could reasonably have concluded that the City was responsible for construction and repair of Maple Street, and that any other entity that undertook repairs or construction was acting under contract as the City's agent in so doing. In that case, the responsibility for any dangerous condition would rest with the City.
Moreover, plaintiffs introduced uncontroverted evidence at trial that amply supports a finding that the City was responsible for the Maple Street's physical features, both before and after 1957. The following are excerpts from the transcript of the mini-trial on the 1806 issue, summarizing certain key documents plaintiffs proffered:
Mr. Green: Next is exhibit 49 which is the Elmwood Policy Plan. In this document, there is a colored map showing Maple Street. In fact, showing 7th Street, the extension of 7th Street and identifying Maple as an arterial street.
Plaintiff's 45 is this large document entitled "plans for the improvement of Maple Street" showing the intersection in question as well. And it is a City of Elmwood document.
Plaintiff's 39 is an interoffice memorandum dated August 4th, 1978 from the director of public works approved by the city manager and forwarded to the city council stating that a review of the traffic engineering files do not warrant the risk of future liability for accidents at this intersection, the cost of reconstruction estimated to be 2.2 million dollars.
Your honor, next is exhibit 51, which is a federal aid application.
And lastly, is exhibit 301 which are the street work records for the City of Elmwood. First page is a card from Maple Street. There are four entries from the intersection of Maple at 7th Street.In addition to the above, Plaintiffs introduced a large number of other documents bearing on the question of maintenance responsibilities. These are, of course, among the exhibits omitted from the record on appeal. They are reflected (without illuminating descriptions) in the City's Notice of Appeal and Designation of Reporter's and Clerk's Transcripts, and in its opening brief. Although the latter entries are not part of the record on appeal, the court may wish to consider them insofar as they may be said to be the City's admission, or stipulation, to the content of these exhibits. The following, in particular, are substantial evidence of the City's involvement in the maintenance of the subject street:
Exhibit 32 is a 1971 letter responding to Exhibit 32. Its pertinent language is as follows:
[W]e are reluctantly agreeable to accepting maintenance responsibility of this unimproved street as follows:
1. Pavement - City will maintain the existing four travel lanes between the naval supply guard house and the West Viaduct interchange. The City cannot accept the maintenance of those areas outside of the traveled way, and thus the shoulder areas and connections to the non-public streets would be the adjoining property owners' responsibility.Exhibit 36 is a 1972 letter from the Navy to the City's Director of Public Works passing on Exhibit 35 and requesting the City to perform the requested maintenance despite the quoted language of Exhibit 33.
. . .
4. Drainage - Existing drainage does not conform to existing standards and thus, except for maintaining inlet grates clear, no other drainage maintenance will be a City responsibility.
Exhibit 37 is a letter replying to Exhibit 36 making an exception to the terms of Exhibit 33 for the shoulder areas fronting the Sea-Land operations but noting that the terms of Exhibit 33 otherwise remain in force.
Exhibit 38 is a City of Elmwood transmittal slip from the City Manager to the Director of Public Works from 1978 stating:
Council requested a more definitive, updated report on what is being done to improve the intersection at Maple Street and the extension of 7th Street to avert further accidents and to avert subjecting the City to further law suits.Exhibit 44 is a January, 1984 city resolution authorizing and appropriating funds for the improvement of Maple Street.
Exhibit 47 is a March 7, 1984, City of Elmwood Resolution awarding the contract for the improvement of Maple Street between 7th Street and West Viaduct to White & Black, Inc.
Exhibit 48 is a March 23, 1984 contract of public works between the City and White & Black for the work referred to in Exhibit 47.
Exhibit 63 consists of several documents. First is a 1964 letter from an Elmwood deputy city attorney to the Superintendent of Streets giving the opinion that Maple Street is a public street and that
it is our opinion the language of 218 of the Charter of the City of Elmwood set forth above, does place the duty of repair and maintenance of public streets in the "Port Area" upon the City of Elmwood when given notice of the necessity thereof by the Port.The letter does not cite Streets & Highways Code 1806, of which the author was apparently unaware, and cites cases that all predate the enactment of 1806.
The next document in Exhibit 63 is a 1964 letter from the Port's attorney to the Elmwood Municipal Utility District stating that Maple Street has never been dedicated as a public street and is thus completely under the jurisdiction of the Board of Port Commissioners.
Exhibit 64 is a 1964 letter from the Superintendent of Streets to the Navy that the City Attorney has determined that Maple Street is a dedicated city street and that "the City of Elmwood assumes responsibility for maintenance of the street in accordance with need for maintenance and availability of funds."
The exhibits, as described, are more than sufficient to support a ruling that the City was not entitled to a nonsuit on the issue of its responsibility for the alleged dangerous condition of the Maple Street pavement.
The court could well have concluded, on the basis of the evidence presented, that the dangerous condition plaintiffs encountered was more likely than not to have been created by the City.
CONCLUSION
The court may decide to dismiss this appeal on the grounds that appellant City has failed to supply an adequate record.
The evidence at trial was more than sufficient, as a matter of law, to support the court's ruling that 1806 did not immunize the City from liability for the the injuries the Smiths suffered. The court could have concluded that Maple Street had been accepted into the Elmwood street system in accordance with the law in effect before 1806's enactment. Even if the court had concluded that 1806 applied to the acceptance of Maple Street, the court had sufficient evidence to rule that the City, having undertaken to carry out work on Maple Street over the years, was liable for damages arising from any dangerous condition it had itself created.
The Court should allow the trial court's decision to stand.
Dated: December 15, 199_
Respectfully submitted,
___________________________
CHARLES J. GREEN
Attorney for Respondents