Metropolitan News-Enterprise


Monday, October 5 2020


Page 3


Court of Appeal:

Private Business Not Liable for Injury Caused by Pothole on City Property

Fact That Hazard Adjoins Property Not Enough to Find Comercial Establishment Partially at Fault, Justice Hoffstadt Writes; Opinion Affirms Judgment NOV


By a MetNews Staff Writer


A wine warehouse that exercised “ordinary and accustomed use” of a driveway and gutter cannot be held liable for a pedestrian’s injuries caused by a pothole located on city-owned property where the driveway and gutter meet, the Court of Appeal for this district has held.

The opinion by Justice Brian M. Hoffstadt of Div. Two, joined by Presiding Justice Elwood Lui and Justice Victoria M. Chavez, affirms a judgment by Los Angeles Superior Court Judge Lisa Hart Cole. Cole granted judgment notwithstanding the verdict, overturning a jury’s determination that Wally’s Wine & Spirits in West Los Angeles is partially liable for a $3 million damage award to the pedestrian.

 Cole granted the motion after finding there was insufficient evidence to support Wally’s Wine & Spirits asserted control over the property where the pothole was located. The jury had found the city of Los Angeles negligent in failing to fill in the pothole.

City’s Argument

The city argued that Wally’s regular use of the driveway by employees and customers constituted control for purposes of imposing liability.

Hoffstadt said the city’s definition would make all businesses liable for injuries of anyone passing along public-owned sidewalks, driveways, and gutters that adjoin commercial property. He wrote:

“Not only would this new definition of ‘control’ cause the exception imposing liability to swallow the general rule of ‘no liability,’ it would also decouple the rule from its policy by imposing liability upon owners and occupiers who have in no meaningful way actually exercised control over the public property they are now charged with protecting and, unlike the public entities who own that property, have no inherent authority or taxpayer funding to maintain those sidewalks, driveways, gutters and streets.”

The pedestrian, Jose Luis Lopez Jr., was walking on a rainy day along a section of street gutter that meets the end of a driveway used by Wally’s on Cotner Avenue in the city’s Sawtelle neighborhood. Lopez stepped into what looked like a puddle but ended up a four-inch-deep pothole.

He underwent two surgeries to repair a dislocated ankle, two bone fractures, and three torn ligaments.

The jury found the city controlled the property where Lopez was injured, that the property was in a dangerous condition, and that the city had been on notice of the condition and failed to repair it.

Lopez was awarded $3,094,972. The city was found 75 percent responsible; Wally’s 25 percent—meaning that the city was liable for $2,321,229.32 and Wally’s was to pay $773,743.10.

City Solely Liable 

Both parties moved for a new trial and judgment notwithstanding the verdict. Cole granted Wally’s motion and the judgment was amended to provide that “Defendant City of Los Angeles is deemed to be 100% responsible” and was to pay the entire $3,094,972.

In his opinion affirming Cole’s judgment, Hoffstadt said nothing in the record showed Wally’s exercised control of the property where the pothole was located or that it had created the hazard.

“At most, the evidence established that Wally’s benefitted from having a standard driveway providing access to the Property and a standard gutter that carried water away from it, but it is well settles the ‘liability … does not arise upon a mere finding that the abutting owner derives a benefit’ from use of that public property,” Hoffstadt wrote.

The case is Lopez v. City of Los Angeles, 2020 S.O.S. 4607.


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