In late 2011, Southern California faced problems with trees infected with termites and beetles. These problems contributed to a fatal accident in Orange County, leading to questions concerning the extent to which government entities may be held liable for injury or death from accidents in public spaces, explains a lawyer.
Government Liability for Public Spaces
Premises liability law within Orange County and throughout California stipulates that the owner of a piece of land or property is responsible for damage that occurs due to failure to maintain the property. When an injury occurs due to an owner's negligence in adequately maintaining property, a civil lawsuit may be brought against the owner for failure to make it safe.
However, things become more complicated when a government entity is the owner of the property or when a government entity is responsible for maintenance. The complication stems from the fact that the government enjoys limited immunity from being sued.
The rules regarding liability of public entities in California are set forth in California Government Code section 815, which stipulates that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." This rule protects against a lawsuit except in instances where an exception is provided by statute (such exceptions are provided in Government Code §§830-835.4 for liability against public entities).
The question that arises then is, what happens when injury does occur? For instance, the Los Angeles Times reported a death caused by a falling tree on an Orange County city road in September of 2011, explains a local lawyer. The area where the tree fell was in an area that West Coast Arborists had reported was infested with beetles and termites. While it is unclear whether the particular tree that caused the death was infested or not, evidence indicates that the city might be responsible for failing to take action to prevent such a disaster.
In such cases, the government may need to bear some responsibility, as the incident may fall within a statutory exception to government immunity. Government Code §835 addresses injury caused by the dangerous condition of public property, so statutory authority to file a suit against the government in the tree incident could be derived from this code section.
Government Code §835 stipulates that a plaintiff must prove that the property was owned or controlled by the public entity; that a dangerous condition existed; that injury was caused by the dangerous condition; and that the type of injury that occurred was reasonably foreseeable as a consequence of the condition. The plaintiff also must prove either that the dangerous condition was caused by an employee of the public entity acting within the scope of employment or that the public entity had either actual or constructive knowledge of the dangerous condition and had time to fix the problem before the injury occurred.
For injuries that occur on streets, like the one with the falling tree, a case called Rink v. City of Cupertino established the rule that proving government ownership involves demonstrating that the streets were accepted as city/county roads by a formal public resolution.
The California Government Code would determine whether the conditions that existed—infected trees—were in fact dangerous conditions. According to §830(a), a dangerous condition is a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. Whether or not a condition creates a substantial risk of injury is normally treated as a question of fact and is determined by a thorough assessment of surrounding circumstances, including whether a history of similar accidents has occurred.
Foreseeability of injury, another statutory element of proving liability, involves a test of whether a dangerous condition could foreseeably cause harm to any person who might be exposed to the hazard. Past cases have resulted in liability against a government entity for malfunctioning traffic signals, as well as for a sudden narrowing of a paved street without warning. It is, of course, likely that it would be foreseeable for a tree infested with beetles and termites to fall in the road.
A plaintiff would also need to prove either that an employee was negligent or that the city had notice of the danger and failed to act. In this case, the plaintiff could prove that the city was negligent in failing to remove the infested trees. To be successful in proving this, showing that a dangerous condition was created is sufficient. For instance, in Ducey v. Argo Sales Co. the absence of a median barrier on a freeway with cross traffic was enough to prove negligence, even absent any specific proof of negligence on the part of any public employee. The plaintiff could also take the alternate approach by demonstrating that the government had received notice of the dangerous condition and failed to correct it. An argument could be made, for example, that the government should have acted when informed of the infestation by West Cost Arborists. Under §835(b), a plaintiff would need to prove that the public entity had actual knowledge of the dangerous condition. Evidence that an inspection of the property was made or that the defect was reported is usually sufficient to prove knowledge, so the tree inspection could help a plaintiff to prove this element of his case.
The case of the falling tree in Orange County is just one example of how the government under California law may be held responsible for failure to protect its citizens from conditions in public areas that could result in a fatal or injury accident, explains a lawyer. Statutory exceptions allowing for such liability are essential to protecting plaintiffs’ rights and ensuring the government is not lax in its duties.
