Russell v. Zitani

1

TROY ALLEN RUSSELL et al., Plaintiff and Respondent, v. KATHLEEN ANN ZITANI et al., Defendant and Appellant.

A162798, A162878

California Court of Appeals, First District, Third Division

March 13, 2023

NOT TO BE PUBLISHED

Alameda County Case No. RG18916045

Petrou, J.

A car driven by Kathleen Zitani collided into Troy Russell, a pedestrian, at an intersection in Oakland. Russell suffered debilitating injuries. Russell and his spouse (collectively "the Russells") sued Zitani, the City of Oakland ("the City"), and others.

The Russells brought a premises liability claim against the City based on a dangerous condition of public property specifically that overgrown vegetation in a center median affected the sightlines between Zitani and Russell and was a substantial factor in the accident. Zitani filed a crosscomplaint against the City for indemnity. The trial court granted the City's motion for summary judgment finding that no triable issue existed on the issue of causation because Zitani testified in deposition that solar glare prevented her from seeing Russell.

In separate appeals that we have consolidated for purposes of argument and this opinion, the Russells and Zitani (collectively "Appellants") each contend the trial court erred in granting the City summary judgment because the evidence raised a triable issue of fact regarding whether the vegetation in the median was a substantial factor leading to the collision. As the evidence - including all reasonable inferences drawn from the evidence -would allow a trier of fact to find causation, we reverse.

Factual and Procedural Background

A. The Accident

The accident giving rise to this case occurred at the intersection of 40th Street ("40th") and Opal Street ("Opal") in Oakland.-40th is a four-lane road running generally east-west, with two lanes in each direction. Opal, a two-lane street running generally north-south with one lane in each direction, intersects 40th. At this intersection, traffic on 40th is unregulated, whereas stop signs on Opal regulate traffic. On the east side of the intersection on 40th, there is a marked ladder crosswalk but no crosswalk on the west side. On 40th, between Opal and Shafter Avenue - the street one block west of Opal - a median with vegetation separates the two directions of traffic (the "Median"). Several of these features are depicted in the following diagram, an aerial image of the intersection from Google Earth^[1]:

(Image Omitted)

In this section of 40th, the posted speed limit is 30 mph.

With respect to the accident, the following facts are undisputed. On September 28, 2017, sometime between 7:45 a.m. and 8:00 a.m., Zitani was driving her Honda Civic to work and turned onto 40th. For the last 18 months, Zitani had driven this same route to work four mornings each week and was familiar with the road. As she proceeded east on 40th, the sun began to obscure her vision, which she anticipated at this time of the year. She lowered the visor and slowed to 25 mph. As was her habit while driving, Zitani constantly scanned the road ahead of her to look for upcoming traffic signals and pedestrians in crosswalks. Even with the sun's glare, she could see the road ahead of her.

While Zitani was traveling eastbound on 40th in the left lane, Troy Russell was walking south on Opal and began crossing 40th. While Russell was crossing, Zitani's car struck him. Russell flew into the windshield, rolled down the hood of the car, and landed on the ground semiconscious and bleeding from his head. Zitani's car stopped just east of the marked crosswalk.

B. The Lawsuit

On August 8, 2018, the Russells sued Zitani, the City, and others, asserting causes of action for negligence, premises liability based on a dangerous condition of public property, and loss of consortium, among other claims. The premises liability claim in particular alleged that Zitani and Russell did not see each other due to the dangerous condition of the intersection. The claim was based on overgrown vegetation in the Median which purportedly interfered with sightlines and caused the accident. It was further alleged that Russell had sustained catastrophic injuries including a massive traumatic brain injury that had left him with permanent and debilitating injuries. On October 4, 2018, the State Compensation Insurance Fund ("SCIF"), the workers' compensation carrier for Russell's employer, filed a separate action, Case No. RG18933422, seeking reimbursement of workers' compensation benefits paid for injuries suffered by Russell.

In its answer to the Russells' complaint, the City generally denied the allegations and asserted several affirmative defenses. Zitani did the same. Zitani also filed a cross-complaint against the City and other defendants for equitable indemnity, apportionment of fault, and declaratory relief. She claimed that if she were held liable for any damages sustained by the Russells, she would be entitled to indemnity from the City and the other cross-defendants with respect to any losses she might sustain as a result of their negligence.

C. Discovery

In June 2019, Zitani was deposed. The following exchange took place between the Russells' counsel and Zitani:

Q: So is it your testimony that you didn't see [Russell] until you effectively hit him?

A: That is my testimony.

Q: And simultaneously you applied your brakes?

A: Yes.

Q: Now, I know accidents all happen in a blink of the eye. So -

A: I didn't see him. I saw him as a I hit hm. That's all I could tell you.

Q: I take it you were being as careful as you could be when you were driving?

A: Yes.

Q: And, in fact, in your mind's eye you don't think there's anything you could have done to prevent the incident?

A: No.

Q: Correct?

A: Correct. I mean in hindsight, yeah, I could be going five miles an hour but that that moment, no. At that moment I - the sun was just glaring. I seriously didn't see him. I didn't - I didn't see him crossing. I just realized that when I saw him, my car hit him. That's the only time I saw him. ...

Q: Just to be clear, you didn't see my client at any time until you struck him, correct?

A: Correct.

Later, the following exchange took place between counsel for the City and Zitani:

Q: So the sun glare caused you to not see Mr. Russell; is that right?

[Objections from other counsel]

A: Yeah. [Objections and instructions from counsel]

A: It was the sun.

Q: Okay. Was there anything else other than the sun that caused you to not see Mr. Russell?

[Objections from counsel]

A: No, I don't. Plaintffs' Counsel: Pardon me, the answer was no, I don't know?

A: No. No, it was the sun. I tell you it was the sun. I hit him because I didn't see him. The sun was right there and I didn't see him.

Q: Okay. Was there anything -- any other condition on the road that you felt caused the incident?

[Objections]

A: No. ....

Q: Okay. And was there anything else other than your not seeing Mr. Russell that caused the accident?

A: Just the sun.

Q: Okay. So other than the glare from the sun, was there any other obstruction to your vision?

[Objections]

A: No. .... Q: Okay. So in your opinion, is there anything - anything that the City could have added or taken away on the road that would have made it safer for you?

[Objections]

A: I'd say a stoplight right there.

In later questioning by counsel for SCIF, counsel presented Zitani with exhibits represented to be depictions of the 40th and Opal intersection, including the following Exhibit 4:

(Image Omitted)

Zitani stated that Exhibit 4 looked like a fair and accurate description of the median on 40th in her direction at the time of the accident but acknowledged she did not know where Opal was in the image. SCIF counsel and Zitani proceeded to have the following exchange:

Q: Okay. Do you recognize the vegetation in Exhibit 4 to be an accurate depiction of the vegetation leading up to Opal Street in your direction of travel at the time of the accident?

[Objections]

A: Um, I mean if you're asking me am I aware of the vegetation, I'm aware of the vegetation. If you're asking me do I know exactly where the tree was in comparison to Opal, I really can't tell you. It has nothing to do with anything that caused this incident. ....

Q: Okay. Now, do you agree that - if you were looking down perspective in Exhibit 4 -

A: Uh-huh.

Q: - some of the vegetation, including that very large tree, blocks your view of part of the crosswalk coming from Opal Street?

[Objections]

A: Yeah, I - I -I think I pretty much answered. I - I - if it's possible, yes, anything is possible, but what caused the accident was the sun, the direct sun through my window at the time I was entering the crosswalk. I didn't see him and --

Q: Sure. When you say "possible," you're saying it's possible that the vegetation obstructed your view of Mr. Russell as he was crossing the crosswalk, correct?

[Objections] A: I really don't know how to answer that. I don't - if you want a truthful answer, I don't think it was the vegetation that impeded my view. It was the sun. ...

Q: -- regardless of what time it was, whether it was the time of the accident or before the accident, would you agree that assuming that [Exhibit 4] is an accurate depiction of 40th Street, 40th Street coming up to Opal Street in your direction of travel, that the vegetation, including that very tall tree or the tall tree, blocks the driver's view of part of the crosswalk coming across Opal Street?

[Objections and instructions from counsel]

A Yeah. I mean is it possible, yes. If - if that's your - if you're saying - I could see where it can impede vision, but right after this tree there's a small clearing. I don't remember...