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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
August 10, 1997
TranSafety, Inc.
(360) 683-6276
Fax: (360) 335-6402

County May Owe Duty to Intoxicated Driver and Deceased Passengers If Edge Dropoff Contributing Cause of Crash
Injury to Child Leaving Ice-Cream Truck Did Not Result from Dangerous Condition or Nuisance Created by California City
Michigan City Immune from Liability When No Admissible Evidence Showed Intersection Was Unsafe
Can Graduated Licensing Lessen Risks for Young Drivers?
Washington State Study Focused on Bicycle-Collision Statistics from 1988-1993
Automotive Engineering Describes Effectiveness of Restraints and Air Bags in Preventing Injuries to Children

Highway Safety Publications Catalog. Articles on Road Engineering, Road Maintenance & Management, and Injury Litigation. Information and consulting for the Automobile and Road User, as well as for law professionals in accident investigations.
TranSafety's free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and highway safety publications catalog. See our free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and a highway safety publications catalog.

Injury to Child Leaving Ice-Cream Truck Did Not Result from Dangerous Condition or Nuisance Created by California City

When she ran across the street after buying ice cream from an ice-cream truck, Kaila Pekarek was hit by a van and injured. Kaila and her sister sued the driver of the ice- cream truck, the driver of the vehicle that hit Kaila, and the City of San Diego (city). The plaintiffs claimed the city maintained its street in a "dangerous condition" and created a "nuisance" by allowing ice-cream trucks to operate on city streets. The Superior Court granted the city's motion for summary judgment. Acting on the plaintiffs' appeal, the Court of Appeal affirmed.


Kaila Pekarek was five years old on June 1, 1990, when she and her sister, Lakshmi, crossed the 6600 block of Springfield Street in San Diego. The sisters crossed the street to buy ice cream from an ice-cream truck operated by Nghiep Buu Truong. Kaila bought ice cream and began running back across Springfield Street. Noticing an approaching van, Lakshmi tried to pull Kaila back; however, the van hit the five-year- old, crushing her leg and breaking her jaw. As a result of the incident, Kaila's leg had to be amputated. The driver of the van, Lois Louise Pischinger, did not see Kaila because the ice-cream truck blocked her view.


Kaila and Lakshmi Pekarek sued the ice-cream truck driver (Truong), claiming that he was negligent in his operation of the truck. They also sued the driver of the van (Pischinger) for negligent driving. Finally, they sued San Diego, arguing the city "was liable because the street was maintained in a dangerous condition" and because the city had created a "nuisance." Subsequently, the plaintiffs settled their complaints against Truong and Pischinger. The final defendant, the city, moved for summary judgment.

In its defense, the city asserted that the plaintiffs could not show the design, construction, or maintenance of Springfield Street was defective. Moreover, the city felt its ordinance allowing ice-cream sellers to use city streets gave San Diego immunity from nuisance liability in this case.

Opposing the city's summary judgment motion, the plaintiffs offered documentation from a consultant showing that from May 1990 through November 1991 the San Diego traffic and engineering department "recorded 30 so-called 'ice-cream truck' injuries to children under the age of 14." These incidents did not happen on this same block of Springfield Street, but all happened in much the same way as the collision in which Kaila was injured.

Finally, the plaintiffs cited national studies that recommended ordinances to reduce the number of ice-cream truck incidents. Such ordinances would:

require drivers to stop before passing ice-cream trucks; require ice-cream trucks to be equipped with visual warning devices; and restrict the location where ice- cream trucks may operate to low speed and low traffic volume streets.

When the trial court rejected the plaintiffs' arguments and granted the city's summary judgment motion, the Kaila and Lakshmi appealed.


In reviewing the summary judgment motion, the appellate court was to decide if the plaintiffs had raised material facts that represented a triable issue and precluded a summary judgment. When doubts arose about whether or not to grant the motion for summary judgment, the court would interpret issues in favor of the plaintiffs.

Addressing the plaintiffs' claim that the city had created a "dangerous condition," the court looked to Government Code section 830 which defines such a condition as:

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.

This court looked to several previous cases for interpretations of this definition of "dangerous condition."

In Ducey v. Argo Sales Co. ((1979) 25 Cal.3d 707, 159 Cal.Rptr. 835, 602 P.2d 755), plaintiffs claimed a dangerous condition existed because there was no barrier where a car crossed the freeway median and hit their vehicle. Pointing to Government Code section 835, the court agreed that the lack of an appropriate safeguard could create a dangerous condition and could produce liability when it combined with the negligence of a third party to cause injury. In this case the court rejected the state's claim "that it was "under no 'duty' to protect the public against dangers that are not created by physical defects in public property."

The court reached a similar conclusion in Peterson v. San Francisco Community College Dist. ((1984) 36 Cal.3d 799, 812-813, 205 Cal.Rptr. 842, 685, P.2d 1193). Here a student assaulted on campus during daylight hours accused the college of creating a dangerous condition and helping her attacker with "thick and untrimmed foliage and trees." The appeal court reversed a lower court decision favoring the college and maintained that "students can expect that a college campus 'will be free from physical defects and that school authorities will also exercise reasonable care to keep the campus free from conditions which increase the risk of crime.'"

Contrasting two cases decided by Division Three of the Second District, this court narrowed the legal definition of a dangerous condition. In the first case (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 198 Cal.Rptr. 208), a vehicle driving on the beach at two in the morning struck and injured plaintiffs who were lying on that beach. The court found the city could have prevented the injuries by putting a fence between the parking lot and the beach--an inexpensive, physical solution that they were negligent in not providing. In contrast, Rodriguez v. Inglewood Unified School Dist. ((1986) 186 Cal.App.3d 707, 230 Cal.Rptr. 823) dealt with a plaintiff whose injury resulted from his being stabbed by a nonstudent who came on campus with a concealed weapon. No simple fence or barrier would have prevented this injury. Police protection might have prevented it; however, the Government Code gives immunity for failure to provide such police protection.

Taking specific direction from Rodriguez, the appellate court considered the existence of a dangerous condition in the present case and concluded:

Although there need not be any physical defect in property owned by a public entity, there must be something about the physical condition of the property where an injury occurred which increased the risk of harm to plaintiffs. . . . [w]e find nothing which suggests that any change in Springfield Street would have diminished the risk of injury.

The court then considered the suggested ordinances presented by the plaintiffs in light of the need to show that the city neglected to make a physical change in Springfield Street that could have prevented Kaila's injuries. Neither a ban on ice-cream trucks nor a requirement that drivers stop when they see visual warnings on an ice-cream truck represented a physical change in Springfield Street that might have prevented the incident. Moreover, the plaintiffs did not contend that Springfield Street was a high- speed or high-volume street; thus limiting ice-cream trucks to low-volume, low-speed streets would not have kept them off this street. While the court agreed that evidence of thirty incidents related to ice-cream trucks would "suggest the city should consider greater regulation of ice-cream trucks," the plaintiffs had no basis for their complaint that San Diego had created a dangerous condition on Springfield Street.

Finally, the court addressed the plaintiffs' contention that the city created a "nuisance" by allowing ice-cream trucks to operate on its streets. Section 54.0122(a) of the San Diego Municipal Code provides:

Purpose and Intent. The Council hereby finds and declares that the unrestricted sale or distribution or the offering for sale or distribution of food, beverages, merchandise or services from vehicles or mobile food units within or upon public streets, sidewalks and rights of way, public property or in the vicinity of school buildings, under certain circumstances, constitutes a danger to public safety because of the likelihood of injury to pedestrians thereby exposed to hazards from other vehicular traffic in the vicinity.

Section 54.0122(c), however, specifically permits selling food from vehicles, if they follow certain restrictions. They must first be legally stopped or parked, and they must remain only long enough to make their "immediate sale." An immediate sale is one made to clients waiting in line for service. Operators of such vehicles must keep a minimum of ten feet of clear space in front of and behind their vehicles "to allow for pedestrian safety and safe sight distance for approaching motorists."

Given this specific allowance for vehicles such as ice-cream trucks and since Civil Code section 3482 provides, "[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance," the court concluded the city's allowing ice-cream trucks to operate on its streets could not be a "nuisance."

Finding the city had neither maintained a dangerous condition nor created a nuisance, the appellate court affirmed the trial court's granting of summary judgment. [For further reference, see Pekarek v. City of San Diego (Cal.App. 4 Dist. 1994) in West Publishing Vol. 36 California Reporter, 2d Series, 22]

Copyright © 1997 by TranSafety, Inc.

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