January 2024 - Parks & Recreation - 34

LAW REVIEW
In the opinion of the appeals
court, " the reference to two crimes
throughout a 23-year span does
not constitute ongoing criminal
activity. " Moreover, the appeals
court found " the December 8,
1997 shooting was not in the parking
lot, but was actually in Darby
Park " and the complaint " does
not reference any other crimes or
shootings. "
In " deciding when a dangerous
condition exists
in cases involving
third party conduct " to impose
governmental liability under
Section 835, the appeals court acknowledged
it was " necessary to
address two elements " :
The first is whether it can be said
the defect complained of describes
a dangerous physical condition
and second, whether the dangerous
condition has a causal relationship
to the third party conduct that actually
injured the plaintiff....
[T]he
necessary coupling of
third party conduct and defective
condition occurs where the property
itself exists in a dangerous condition,
and that condition increases
or intensifies the risk of injury
to the public.
Within the context of Section
835 governmental liability, the appeals
court recognized the required
dangerous condition " most obviously
exists when public property
is physically damaged, deteriorated,
or defective in such a way as to
foreseeably endanger those using
the property itself. "
In this particular instance, the
appeals court determined the
complaint " does not establish
a sufficiently pleaded claim for
dangerous
condition
of
public
property based upon a third party's
shooting coupled with the ab34
Parks & Recreation |
sence of security cameras. "
Further, in the opinion of the
appeals court, " Darby Park's parking
lot is not dangerous because it
lacks surveillance cameras. " As
cited by the appeals court, within
the context of Section 835 governmental
liability, a " condition is
not dangerous " under the following
circumstances:
[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 or adjacent
property was used with due care
in a manner in which it was reasonably
foreseeable that it would
be used.
Moreover,
the appeals court
found the complaint had not sufficiently
alleged " the requisite particularity
that the absence of surveillance
cameras in Darby Park's
parking lot facilitated a third party's
shooting of decedent while in
his vehicle in the parking lot. "
As a result, the appeals court
held the complaint did not " plead
sufficient facts " to establish the
" necessary causal connection between
the condition of the property
and the crime, " i.e., " the absence
of security cameras created a substantial
risk of being shot. "
Failure to Warn
About Crime
On appeal,
plaint " did not adequately plead
the existence of a dangerous condition, "
the appeals court held the
City was not required to provide
a warning in this particular instance.
In so doing, the appeals
court also cited case law that had
held " a public entity has no duty
to warn against criminal conduct "
on a public beach:
[T]he failure to post a warning
that the beach was frequented by
undesirable persons did not fall
within Section 835, since the
problem of crime is well known
to the public and the warning
would be inconsistent with the
administrative-legislative determination
that the beach should be
used by the public.... [B]oth public
awareness of the prevalence of
crime and policy factors militate
against imposing a governmental
duty to warn in circumstances
such as these.
In this particular instance, the
appeals court further found the
complaint " did not
sufficiently
plead the existence of 'ongoing
criminal activity' such that the City
had adequate prior notice, actual or
constructive, of the condition. "
Conclusion
As a result, the appeals court affirmed
the trial court's " judgment
of dismissal and the underlying
order sustaining the demurrer to
the causes of action for dangerous
condition on public property and
negligence. "
Plaintiffs
also
had
claimed the complaint " properly
alleged that the City maintained a
dangerous condition " by failing to
" provide adequate warning about
the dangerous condition. "
Having found that the comJ
ANUAR Y 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
Concurring Opinion
While noting the " gravity of this
case is sobering, " in a concurring
opinion, one of the judges on the
appeals court found no legal basis
for imposing liability in this case:
January 2024 - Parks & Recreation

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