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Curb Jumping Liability For Private Landowners: ‘When A Car Becomes A Landowner’s Responsibility'

Landowners in California are often sued by members of the public who sustain injuries when a vehicle errantly jumps a curb or sidewalk and strikes those people. Often the landowner takes the position that it should not be liable for the driver who does not maintain control of her vehicle. That position legally translates into “the landowner had no duty to the injured individuals because the incident was unforeseeable.” What follows is an analysis of the landowner’s defense as illustrated in a recent case wherein our client, a private landowner who owns a shopping center, prevailed on a motion for summary judgment against plaintiffs who were injured when a vehicle ran a red light, was struck by an oncoming vehicle within the intersection, lost control and barreled into the plaintiffs, who were situated on a public sidewalk as well as our client’s private property, watching a 4th of July fireworks display.

A. The Law

The seminal ‘curb jumping’ case in California is Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 993, which held that “a duty to take steps to prevent the wrongful acts of a third party ‘will be imposed only where such conduct can be reasonably anticipated.’” (emphasis added; citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676.) When determining the existence of a duty, foreseeability is a question of law. (Id. at 678.) The court must ascertain whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed. (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573.) Furthermore, courts in states outside of California have considered similar scenarios of cars jumping curbs and striking pedestrians, and the majority have concluded there is no liability because such accidents are insufficiently likely as a matter of law. (See Jefferson, supra, at pg. 993, referencing Fawley v. Martin’s Supermarkets, Inc. (Ind.App. 1993) 618 N.E.2d 10—driver losing control of auto and jumping three-inch curb not sufficiently foreseeable to impose liability, Stutz v. Kamm (1990) 204 Ill.App. 898—whether other barriers would have prevented accident was mere speculation, Howe v. Stubbs (Me. 1990) 570 A.2d 1203—no liability when auto rolled down hill and crashed into building, despite three prior incidents, Molinares v. El Centro Gallego, Inc. (Fla.Dist.Ct.App. 1989) 545 So.2d 387—no liability where restaurant had sidewalk with two-inch curb and no other barriers, Mims v. Bradford (LA.App. 1987) 503 So.2d 1083—no liability where restaurant had sidewalk with four-inch curb and no other barriers, Carpenter v. Stop-N-Go Markets of Georgia,Inc. (Miss. 1987) 512 So.2d 708—no duty to erect barriers to prevent auto from coming through store window, despite prior incident, Hendricks v. Todora (Tex.App. 1986) 722 S.W.2d 458—risk of drunk driver crashing into wall so slight, and incident so extraordinary that a reasonable person would disregard it, restaurant had six-inch curb and no other barrier, Mack v. McGrath (1967) 276 Minn. 419—liability cannot be predicated on remote possibility of injury, no liability where store had curb of normal height and no other barriers, despite two prior incidents, and Schatz v. 7-Eleven, Inc. (Fla.Dist.Ct.App. 1961) 128 So.2d 901—driver negligently driving car over curb and sidewalk was unusual or extraordinary and unforeseeable in contemplation of the law, store had six-inch curb, no other barriers.)

An act must be sufficiently likely before it may be foreseeable in the legal sense. That does not mean simply imaginable or conceivable. Given enough imagination, everything is foreseeable. (Jefferson, supra, at pg. 996.) To hold landlords as insurers of public safety would be “contrary to well-established policy”. (Id., citing Ann M., supra, at pg. 679.) A landowner, with property typical of the vast majority of businesses, with a design that meets all city standards and regulations, cannot be held liable when a third party negligently drives her car over a curb onto the sidewalk injuring a pedestrian when there is nothing requiring pedestrians to stand in a fixed location adjacent to the property, and when there have been no prior such accidents before. (See Jefferson, supra, at pgs. 991, 996; emphasis added.)

In our recent victory involving the plaintiffs struck by a vehicle while watching a fireworks display, we presented undisputed evidence that our private landowner client had no knowledge prior to the subject incident that members of the public used its private property as a viewing area for the fireworks display. Additionally, there was nothing requiring the injured plaintiffs to stand or sit on the public sidewalk or the adjacent private property at the time of the subject incident. Furthermore, prior to the subject incident, the private landowner did not know, or have reason to know, that a vehicle would, or would likely, strike another vehicle in the intersection and subsequently strike pedestrians on the corner of that intersection because, to its knowledge, that had never happened before. We retained a professional engineer, who opined, based on his inspection of the subject intersection and street corner, as well as his knowledge, experience, training, and document analysis, that the design and construction of the subject street corner was typical of most street corners in Southern California, meeting the relevant standards for sidewalks, streets and gutters. He was of the further opinion that the subject street corner and adjacent private property were not a dangerous condition for their intended use.

In opposition, the plaintiffs attempted to submit evidence to create a triable issue of material fact that there had been a history of accidents at the subject intersection and that the City made a modification to the median to make the subject intersection safer. However, the plaintiffs were unable to establish the private, non-possessory landowner had any knowledge of those facts.

Plaintiffs cited to the case of Robison v. Six Flags (1998) 64 Cal.App.4th 1294, for the proposition that the proper focus is on the foreseeability of a harmful event of the general type that occurred. In Robison, the relevant facts were as follows: (1) Magic Mountain operated (owned/controlled) a large parking lot; (2) a large rectangular grass picnic area occupied an “island” within the parking lot; (3) no curb, change in elevation, tire stop, ditch, foliage, railing, bollard, planter or other barrier separated the pavement from the grass picnic area; (4) vehicular travel lanes in the parking lot were aimed directly at the grass picnic area so that if a car failed to make a 90 degree left turn, it would enter the picnic area and hit the concrete picnic table; (5) Magic Mountain built and maintained the grassy picnic area and concrete picnic table; (6) customers were advised in a brochure distributed by Magic Mountain that the picnic area was a guest service provided by Magic Mountain and customers were invited to sit and use the picnic area. (Robison, supra, at pgs. 1296-1297.) Robison focused on the fact that Magic Mountain created the conditions that resulted in plaintiffs’ injuries (e.g. “placed into a configuration in which the cars can hit the tables”).

In reply, we distinguished Robison from our case in that the undisputed material facts in our case established that: (1) the private landowner did not own, possess or control the public sidewalk on which plaintiffs were seated/standing when the incident occurred; (2) the private landowner did not create the public sidewalk; (3) there was a curb/change in elevation between the public street and the public sidewalk, separating the public street from the public sidewalk; (4) vehicular travel lanes along the bordering boulevard were not aimed directly at the public sidewalk or the corner of the subject intersection; (5) the private landowner did not promote, advertise, participate, or otherwise engage in the fireworks display; (6) the private landowner did not invite plaintiffs to occupy the public sidewalk, or its private property, where the incident occurred.

We also argued that the Robison court also distinguished the Robison case from Jefferson v. Qwik Korner (1994) 28 Cal.App.4th 990. The Robison court reasoned that Robison was distinguishable from Jefferson, thereby resulting in liability in Robison which was consistent with Jefferson, a non-liability case, because: (1) In Jefferson, there was a concrete wheel stop and curb as safety features. In Robison, there were no such safety features. In our case, the undisputed material facts established a concrete curb that met all applicable building and safety codes, as well as a 4-way signal-controlled intersection. (2) In Jefferson, there was nothing requiring customers to stand in a fixed location adjacent to the parking area where the injury occurred. In Robison, the plaintiffs were directed to the fixed position in a direct line with the traffic lane, by Magic Mountain. In our case, the undisputed material facts established that the private landowner did not direct plaintiffs to occupy the public sidewalk area. In fact, no one told or invited plaintiffs to occupy that area to watch the fireworks display. (3) In Jefferson, the parking space was perpendicular to a sidewalk and it was reasoned that a driver pulling into such space will expectably be traveling at a low speed with foot on the brake. In Robison, the vehicular travel lane was also perpendicular to the picnic tables and had a 25 mph speed limit, with no barrier between the asphalt and picnic table. Robison distinguished Jefferson on the fact that Jefferson had a curb. In our case, there was a curb (and a 4-way signal intersection), and more significantly, vehicular traffic was not aimed directly at the sidewalk, but rather, passing by it. Therefore, the court agreed with our analysis that our case was analogous to Jefferson rather than Robison.

In the subsequent case of Victor v. Hedges (1999) 77 Cal.App.4th 229, 244, the court distinguished Robison, holding that defendants were entitled to summary judgment because “the lane of traffic was not aimed at the point of the sidewalk where…plaintiff stood,” thereby affirming the rationale articulated by Jefferson.

Handling the Landowner’s Defense

Counsel for the landowner should attempt to develop evidence likening its case to Jefferson, and at the same time, distinguishing its case from Robison, using the Jefferson factors. Those factors include whether: (1) the private landowner owned, possessed or controlled the land on which plaintiffs were situated when the incident occurred; (2) the private landowner created the condition upon which plaintiffs were situated when the incident occurred; (3) there was a curb/change in elevation between the street and the land on which plaintiffs were situated when the incident occurred, separating the public street from that land; (4) vehicular travel lanes were aimed directly at the land on which plaintiffs were situated when the incident occurred; (5) the private landowner promoted, advertised, participated, or otherwise invited plaintiffs to occupy the land on which plaintiffs were situated when the incident occurred; (6) there was anything requiring the plaintiffs to occupy the land upon which they sustained injury; (7) the landowner had knowledge of prior instances of curb jumping in that area; (8) the design and construction of the land upon which plaintiffs were situated at the time of the incident was typical in the jurisdiction, meeting the relevant standards and safety codes for that type of construction; and (9) the land upon which plaintiffs were situated at the time of the incident was a dangerous condition for its intended use. Factors 1 through 7 can usually be established by testimony from plaintiffs, witnesses and the private landowner. Factors 8 and 9 generally need to be established by a professionally licensed safety engineer.

Cary L. Wood, Esq. is a partner, and Matthew M. Taylor, Esq., is an associate at Lewis Brisbois Bisgaard & Smith LLP in the General Liability Practice. Both are well versed in this area of law, and would be more than happy to answer any questions one might have on this subject.

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