January 2024 - Parks & Recreation - 32

LAW REVIEW
for injury caused by a dangerous
condition of its property " under
the following circumstances:
[T]he plaintiff establishes that
the property was in a dangerous
condition at the time of the injury,
that the injury was proximately
caused by the dangerous condition,
that the dangerous condition created
a reasonably foreseeable risk of
the kind of injury which was incurred,
and that either:
(a) A negligent or wrongful
act or omission of an employee
of the public entity within the
scope of his employment created
the dangerous condition; or
(b) The public entity had actual
or constructive notice of the
dangerous condition... a sufficient
time prior to the injury to
have taken measures to protect
against the dangerous condition.
As described by the appeals
court, Section 835 defined a " dangerous
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 " :
A dangerous
condition
exists
when public property is physically
damaged, deteriorated, or defective
in such a way as to foreseeably
endanger those using the property
itself, or possesses physical characteristics
in its design, location,
features or relationship to its surroundings
that endanger users.
On the other hand, the appeals
court acknowledged the state legislature
had specified under Section
835 " a condition is not dangerous "
if the plaintiff's evidence demonstrated
the following:
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[T]he risk created by the condition
was of such a minor, trivial
or insignificant nature in view of
the surrounding circumstances
that no reasonable person would
conclude that the condition created
a substantial risk of injury
when such property was used with
due care in a manner in which it
was reasonably foreseeable that it
would be used.
In addition, the appeals court
noted " a claim alleging a dangerous
condition may not rely on generalized
allegations but must specify in
what manner the condition constituted
a dangerous condition. "
Section 835 Third
Party Liability
In this particular instance, the
decedent was shot and killed by
a third party, an unknown assailant.
As described by the appeals
court, third party liability under
Section 835 would exist for a governmental
entity under the following
circumstances:
[A] public entity may be liable
for a dangerous condition of public
property even where the immediate
cause of plaintiff's injury is
a third party's negligent or illegal
act if some physical characteristic
of the property exposes its users to
increased danger from third party
negligence or criminality.
That being said, the appeals
court acknowledged: " Third party
conduct, by itself, unrelated
to the condition of the property,
does not constitute a 'dangerous
condition' for which a public entity
may be held liable " under
Section 835. Instead, the appeals
court noted: " There must be
some defect in the physical condition
of the property and that
J ANUAR Y 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
defect must have some causal relationship
to the third party conduct
that injures the plaintiff. " As
a result, the appeals court found
" Public liability
lies under Section
835 only when a feature of
the public property has 'increased
or intensified' the danger to users
from third party conduct. "
Accordingly, the appeals court
would review Plaintiffs' complaint
" to ascertain whether it states facts
sufficient to constitute a dangerous
condition on public property pursuant
to Section 835. "
Dangerous Condition
Allegations
As described by the appeals court,
Plaintiffs' complaint had identified
the following three features that allegedly
made the City's Darby Park
parking lot dangerous:
(1) [T]he City's alleged failure
to provide " any adequate precautions "
such as " control measures,
and/or security " ; (2) the City's
failure to provide security cameras
in the Darby Park parking lot;
and (3) the City's failure to provide
" any adequate warning about the
dangerous condition. "
Failure to Provide Security
According to the appeals court,
" the presence or absence of security
guards is not a physical characteristic
of public property and
thus not actionable as a dangerous
condition " :
A lack of human supervision
and protection is not a deficiency
in the physical characteristics of
public property. Public entities,
like the City, are immune from
liability for asserted failures to
provide security services and/or
police presence.
January 2024 - Parks & Recreation

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