Union Pacific Railroad Co. v. Superior Court

Filed 10/7/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
UNION PACIFIC RAILROAD COMPANY,
Petitioner,
v.
THE SUPERIOR COURT OF MADERA
COUNTY,
Respondent;
CHAVON ABRAMS, et al.,
Real Parties in Interest.
F087132
(Super. Ct. Nos. MCV074874,
MCV074987)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael J. Jurkovich,
Judge.
Pacific Employment Law; Schroeder Schaff & Low, Joseph P. Mascovich and
Jason W. Schaaf, for Petitioner.
No appearance for Respondent.
The Homampour Law Firm, Arash Homampour, Wendi O’Wagner, Corey
Arzoumanian, Nareen Touloumdjian; Law Office of Lee C. Arter and Lee C. Arter; The
Ehrlich Law Firm and Jeffrey I. Ehrlich for Real Parties in Interest.
-ooOoo-

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Robert and Elise Sandiford, deceased, and Deon Detes Abrams, Sr., deceased,
(collectively, decedents) perished after their respective vehicles collided on State
Route 99 (SR 99), veered off the roadway, struck a tree located on abutting land owned
by petitioner Union Pacific Railroad Company (Union Pacific), and burst into flames. In
two consolidated lawsuits, relatives of the Sandifords (Sandiford plaintiffs) and relatives
of Abrams (Abrams plaintiffs) (collectively, plaintiffs) sued Union Pacific alleging it was
negligent for failing to remove the tree or failing to take other measures to protect the
public against the dangerous condition caused by the tree.
Union Pacific moved for summary judgment contending, among other things, that
plaintiffs cannot establish Union Pacific owed plaintiffs or decedents a duty to remove
the tree. The trial court, applying factors set forth in Rowland v. Christian (1968)
69 Cal.2d 108 (Rowland), found the undisputed material facts did not warrant creating a
judicial exception to the ordinary duty of care embodied in Civil Code section 1714 and
denied the motion. Union Pacific then filed a petition for a writ of mandate, prohibition
or other appropriate writ with this court, and we issued an order to show cause (OSC).
We hold Union Pacific did not have a duty to remove the tree or to otherwise take
measures to protect the driving public from any alleged dangerous condition posed by the
tree. Therefore, we grant the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
A. Undisputed Facts Asserted by Union Pacific
The following facts are undisputed for purposes of the summary judgment motion
unless otherwise indicated.
On May 25, 2016, Robert and Elise Sandiford (decedents Sandiford) were
traveling northbound on SR 99 in the County of Madera in a Coachman Leprechaun
motorhome. Deon Detes Abrams, Sr. (decedent Abrams) was also driving northbound on
SR 99 when decedents Sandiford’s vehicle collided with his Freightliner truck, which

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was hauling a loaded trailer. As a result, both vehicles veered off SR 99 and struck a tree
located on abutting land east of the highway, killing the occupants of both vehicles.
Union Pacific owns the land on which the tree was located, having acquired it in
1998 through a merger with Southern Pacific Transportation Company. 1 The land
consists of a 100-foot wide corridor that runs parallel to SR 99. Union Pacific’s railroad
tracks are located within the corridor and Union Pacific’s right-of-way extends 50 feet on
each side of the tracks’ centerline. The subject tree was located on the east side of SR 99,
at least 20.7 feet from the closest lane of travel and approximately 42.6 feet from the
centerline of Union Pacific’s railroad tracks.
The tree had been growing in place for more than 74 years prior to the subject
incident. Although SR 99 was, at the time and location of the incident, a four-lane
highway with two southbound lanes and two northbound lanes, a historical photograph
from 1946 shows the tree in existence when SR 99 was only a two lane highway with one
lane in each direction. 2
Prior to the subject incident, Union Pacific had routinely inspected the area where
the collision occurred as part of its inspection of its tracks and adjacent lands. Union
Pacific inspected the area “more than 100 times a year for many years before the subject
[incident].”
Union Pacific claimed it was undisputed that it (1) had no agreements with the
California Department of Transportation (Caltrans) “that would govern the land where
the … tree was located”; (2) had “not received any correspondence … from any public
entity, including [Caltrans], regarding the … tree”; and (3) had “no record evidencing any
1 Caltrans removed the tree in 2021, five years after the subject incident, as part of
a project to widen SR 99.
2 Plaintiffs dispute any inference that the widening of the highway to four lanes
resulted in a significant change in the distance between SR 99 and the tree. We agree.
No evidence was provided to establish the distance of the tree from SR 99 when SR 99
was only a two-lane highway.

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other car accident, or other safety complaint or concern, regarding or involving the …
tree.” Plaintiffs objected to these asserted facts but did not produce any evidence to rebut
them. The trial court did not rule on the objections. For reasons discussed in section II of
the DISCUSSION section of this opinion, we accept the evidence underlying these
asserted facts for purposes of review.
B. Additional Undisputed Facts Asserted by Plaintiffs
The Sandiford plaintiffs asserted 46 additional purported facts, and the Abrams
plaintiffs asserted 38 additional purported facts, that they contend are material to Union
Pacific’s summary judgment motion. There is considerable overlap of those asserted
facts, some of which were admitted by Union Pacific and discussed in the preceding
section of this opinion. We summarize the remainder of those asserted facts below.
Plaintiffs contend (1) a 2012 Caltrans Traffic Manual states, “Studies have
indicated that on high-speed highways, a clear width of 30 feet from the edge of the
traveled way permits about 80 percent of the errant vehicles that leave the traveled way to
recover. Thirty feet should be considered the minimum clear recovery zone3 where
possible for freeways and high-speed expressways[]” (italics and underling omitted);
(2) a Caltrans 2010 Preliminary Investigation states, “To minimize the severity of run-
off-road collisions of vehicles with trees, departments of transportation … commonly
establish clear zones for trees and other fixed objects. Caltrans’[s] clear zone on
freeways is 30 feet minimum (40 feet preferred) from the edge of travel way to a fixed
object[]”; (3) for freeways and expressways, Caltrans’s 2018 Highway Design Manual
requires that it establish a minimum 30-foot clearance (and recommends a greater
clearance of 40 feet or more) between the edge of a traveled way and any large trees (i.e.,
trees that “have trunks 4 inches or greater in diameter measured 4 feet above the ground”)
3 The concept of a “clear recovery zone” (sometimes, “CRZ”) is described in
Caltrans’s 2018 Highway Design Manual as “an area for errant vehicles to potentially
regain control.”

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in order “[t]o keep the clear recovery zone free of physical obstructions.” The diameter
of the subject tree was measured at 8.0 feet; (4) other national organizations concerned
with highway safety recommend a “30 to 32 foot clear zone for flat, level terrain adjacent
to a straight section of a 60 mph highway with an average daily traffic of 6,000 vehicles”;
(5) the Insurance Institute for Highway Safety’s website in 2019 stated, “Trees are the
most common fixed object struck…. In 2018, [forty-eight] percent of deaths in fixed
object crashes involved a vehicle striking a tree[]”; (6) Union Pacific had the power,
authority, and ability to eliminate any dangerous condition posed by the subject tree;
(7) Union Pacific was aware of the existence of the tree for decades; (8) Union Pacific
had ample opportunity to remove the tree; (9) the tree served no purpose for the
railroad; (10) nothing prevented Union Pacific from attempting to work with Caltrans to
guard against any hazardous condition posed by the tree; (11) the tree “affirmatively
contributed” to the fatal injuries suffered by decedents; (12) Union Pacific’s manager of
track maintenance and former track supervisor acknowledged that cars travel at speeds of
60 to 70 miles per hour on the section of SR 99 adjacent to the subject tree and that it is
possible for a vehicle to go off the roadway for a variety of reasons; and (13) Union
Pacific’s Engineering Track Maintenance Field Handbook requires its employees to
conduct “annual inspection[s] to observe conditions on and adjacent to [its] right of way,
including vegetation.”
Union Pacific has admitted some of the above facts and has objected to others.
The trial court did not rule on Union Pacific’s objections. For reasons discussed in
section II of the DISCUSSION section of this opinion, we accept the evidence underlying
the asserted facts for purposes of review.
C. Judicially Noticed Matter
The trial court granted Union Pacific’s request to judicially notice a Caltrans
manual but denied its request to judicially notice other documents. Union Pacific does
not challenge these rulings by the court. Unfortunately, the record on appeal does not

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contain a copy of Union Pacific’s request for judicial notice or the documents submitted
in connection therewith. Therefore, we cannot consider it. It is an appellant’s affirmative
duty to provide an adequate record for review. (Osgood v. Landon (2005)
127 Cal.App.4th 425, 435.)
II. Procedural Background
Real parties in interest, plaintiffs herein, are the children of decedents Sandiford 4
and the wife and children of decedent Abrams. 5 In two separate lawsuits, the Sandiford
plaintiffs and Abrams plaintiffs, respectively, sued Union Pacific alleging the subject tree
constituted an inherently dangerous condition on its land and that Union Pacific was
negligent in its maintenance of its property and for allowing the tree to exist in its
location. 6 The two lawsuits were consolidated by the trial court.
Union Pacific moved for summary judgment contending plaintiffs could not
establish Union Pacific “owed a duty to the decedents or the [p]laintiffs to remove [the]
tree on its private property[.]” 7
On September 28, 2023, the trial court issued its tentative ruling to deny Union
Pacific’s motion. On October 9, 2023, the court issued its order denying the motion and
adopting its tentative ruling. Notice of entry of the order was served the following day.
4 The Sandiford plaintiffs are real parties in interest Kira Dionne Sandiford and
Devon Sandiford.
5 The Abrams plaintiffs are real parties in interest Chavon Abrams; Zuri Abrams
(a minor by and through her guardian ad litem (GAL), Chavon Abrams); Deon D.
Abrams II; Deondra Abrams; Deondre Abrams; De’shon Abrams; Bonitaregina Mary
Abrams and Deon D. Abrams III (minors by and through their GAL Mary Esther
Johnson).
6 The Sandiford plaintiffs also sued the State of California (including Caltrans)
and the County of Madera. The Abrams plaintiffs also sued Caltrans and the estates of
both Robert Sandiford and Elise Sandiford.
7 Union Pacific asserted additional grounds for summary judgment but has not
raised any issue with respect thereto in these writ proceedings.

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On October 27, 2023, the trial court granted Union Pacific an extension of time to
November 9, 2023, to file a petition for writ of mandate. (Code Civ. Proc.,
§ 437c(m)(1).)
On November 9, 2023, Union Pacific sought review of the trial court’s order by
filing a petition for writ of mandate, prohibition, or other appropriate writ. In its petition,
Union Pacific asks this court to “address a fundamental issue regarding whether
landowners have a duty to protect errant motorists by keeping their property free of trees
and similar obstructions.”
Plaintiffs filed a preliminary opposition to Union Pacific’s petition and Union
Pacific filed its reply thereto.
On February 8, 2024, this court issued an order directing the issuance of an OSC.
An OSC issued that same day.
On March 8, 2024, plaintiffs filed their return. On April 5, 2024, Union Pacific
filed its reply to plaintiffs’ return.
DISCUSSION
I. Standard of Review
“ ‘An order denying a motion for summary judgment may be reviewed by way of
a petition for writ of mandamus. [Citations.] “ ‘Where the facts are undisputed and the
law establishes the right of a party to an order or to the relief which the court has refused,
the writ will lie.’ ” [Citation.] A writ of mandamus will issue when the denial of a
motion for summary judgment results in a trial on a nonactionable claim.’ ” (Irvine
Company LLC v. Superior Court of Orange County (2023) 96 Cal.App.5th 858, 869
(Irvine).)
“ ‘ “On review of an order granting or denying summary judgment, we examine
the facts presented to the trial court and determine their effect as a matter of law.”
[Citation.] We review the entire record, “considering all the evidence set forth in the
moving and opposition papers except that to which objections have been made and

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sustained.” [Citation.] Evidence presented in opposition to summary judgment is
liberally construed, with any doubts about the evidence resolved in favor of the party
opposing the motion. [Citation.] [¶] Summary judgment is appropriate only “where no
triable issue of material fact exists and the moving party is entitled to judgment as a
matter of law.” [Citation.] A defendant seeking summary judgment must show that the
plaintiff cannot establish at least one element of the cause of action.’ ” (Irvine, supra,
96 Cal.App.5th at p. 869.)
“Duty, being a question of law, is particularly amenable to resolution by summary
judgment.” ’ ” (Irvine, supra, 96 Cal.App.5th at p. 869, italics omitted.) “Duty is a
question of law for the court, to be reviewed de novo on appeal.” (Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).)
II. Resolution of Objections to Facts Asserted by the Parties
As mentioned, plaintiffs and Union Pacific asserted objections to each other’s
alleged “undisputed material facts” but the trial court did not rule on the objections. In
the context of a summary judgment motion, “if the trial court fails to rule expressly on
specific evidentiary objections, it is presumed that the objections have been overruled, the
trial court considered the evidence in ruling on the merits of the summary judgment
motion, and the objections are preserved on appeal.” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 534 (Reid).) However, “the burden [is] on the objector to renew the
objections in the appellate court.” (Ibid., italics added.)
In 2015, the Legislature amended the summary judgment statute to codify parts of
the Reid decision. (Sen. Bill No. 470 (2015–2016 Reg. Sess.) § 1; Assem. Com. on
Judiciary, Analysis of Sen. Bill. No. 470 (2015–2016 Reg. Sess.) June 16, 2015 [hearing
date].) The amendment added current subdivision (q) to the statute, which provides: “In
granting or denying a motion for summary judgment or summary adjudication, the court
need rule only on those objections to evidence that it deems material to its disposition of
the motion. Objections to evidence that are not ruled on for purposes of the motion shall

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be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q); Sen. Bill No. 470
(2015–2016 Reg. Sess.) § 1.)
In a California Bill Analysis of Senate Bill 470, the Assembly Committee on
Judiciary wrote: “The bill codifies two holdings from … Reid v. Google, Inc. …. First,
the bill would allow the court, … when granting or denying a motion for summary
judgment …, to only rule on those objections to evidence which it deems material to the
disposition of the motion…. Second, this bill provides that any objection to evidence on
which the court does not rule at a hearing for a motion for summary judgment … is
deemed to be overruled and the issue of the court’s ruling on such objection is preserved
for appeal.” (Assem. Com. on Judiciary, Analysis of Sen. Bill. No. 470 (2015–2016 Reg.
Sess.) June 16, 2015 [hearing date].) Although the text of the amendment and of the
resulting statute do not expressly state that objections not ruled upon are deemed
overruled, that is the preferred approach adopted in Reid. (Reid, supra, 50 Cal.4th at
p. 534.) Moreover, that approach is consistent with subdivision (c) of Code of Civil
Procedure section 437c, which provides, in part: “In determining if the papers show that
there is no triable issue as to any material fact, the court shall consider all of the evidence
set forth in the papers, except the evidence to which objections have been made and
sustained by the court ….” (Code Civ. Proc., § 437c, subd. (c), italics added; Reid, at
p. 534 [“presumed overruled approach … is consistent with [Code of Civil Procedure]
section 437c, subdivision (c)”].)
Because the trial court did not expressly rule on any of the parties’ objections, they
are presumed to have been overruled. (Reid, supra, 50 Cal.4th at p. 534.) No party to
these proceedings has renewed its objections. Consequently, the parties’ proffered
evidence remains part of the record on appeal for consideration by this court in its de
novo review. (Code Civ. Proc., § 437c, subd. (c); Reid, at p. 534; Ghazarian v. Magellan
Health, Inc. (2020) 53 Cal.App.5th 171, 183 [objections not ruled on and not renewed on
appeal are disregarded].)

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III. The Question Presented
In its writ petition, Union Pacific asks this court to “hold that Union Pacific did
not have a duty to remove the tree on its land.” Plaintiffs contend Union Pacific has
incorrectly framed the issue by suggesting it was not already under a duty to keep its
property in reasonably safe condition. They argue Civil Code section 1714 already
imposes such a duty of care on Union Pacific. That code section provides, in relevant
part: “Everyone is responsible … for an injury occasioned to another by his or her want
of ordinary care or skill in the management of his or her property …, except so far as the
latter has, willfully or by want of ordinary care, brought the injury upon himself or
herself.” (Civ. Code, § 1714, subd. (a).) 8
Plaintiffs correctly note that in Sprecher v. Adamson Companies (1981) 30 Cal.3d
358, our state high court rejected prior common law that had “immunized a possessor of
land from liability for injury caused by a natural condition of his land to persons or
property not on his land.” (Id., at pp. 360, 371.) Sprecher abolished any distinction
between artificial and natural conditions with regard to a landowner’s duty of care to
keep its property in reasonably safe condition, and held that a landowner’s liability for
negligence must be determined according to ordinary principles of negligence. (Id., at
p. 371.) Thus, regardless of whether an injury is caused by a natural condition or a man-
made condition, a landowner will generally be responsible “for an injury occasioned to
another by his or her want of ordinary care or skill in the management of his or her
property or person.” (§ 1714, subd. (a); Sprecher, at p. 371.)
Plaintiffs further contend that Union Pacific’s manner of framing the issue
conflates the concepts of duty and breach, arguing that “a finding that [Union Pacific]
owed a duty [to remove the tree] would [have been] tantamount to a finding of liability.
8 All statutory references are to the Civil Code unless otherwise noted.

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Yet, plaintiffs have largely premised their negligence claims against Union Pacific based
on its failure to remove the tree.9
It is proper for this court to consider the scope of the duty asserted by plaintiffs in
determining whether such a duty exists. (Castaneda v. Olsher (2007) 41 Cal.4th 1205,
1214 (Castaneda); Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448,
1454.) “ ‘Only after the scope of the duty under consideration is defined may a court
meaningfully undertake the balancing analysis of the risks and burdens present in a given
case to determine whether the specific obligations should or should not be imposed ….’ ”
(Castaneda, at p. 1214; see also Gilead Tenofovir Cases (2024) 98 Cal.App.5th 911, 921
[“it is generally more appropriate to consider the claimed duty in its factual context”].)
Importantly, Union Pacific has acknowledged the general application of
section 1714 to the case before us, and has addressed the factors that must be considered
9 For example, plaintiffs argued the trial court should deny Union Pacific’s
motion because “Union Pacific breached the duty it owes to plaintiffs and their decedents
by allowing the tree to exist on its land so close to [SR] 99.” (Italics added.) Plaintiffs
wrote: “As the undisputed owner of the property where the tree was, Union Pacific ‘may
be held liable … [for allowing] a fixed object where it is reasonably foreseeable that
persons traveling with reasonable care would deviate from the highway in the ordinary
course of travel.’ ” (Bracketed language in original, italics added.) Notably, plaintiffs
also wrote: “Union Pacific only has to remove trees from its land that are too close to
high-speed highways or otherwise pose a danger to passing motorists, which likely
applies to only a small fraction of the land it owns.” (Italics added.)
Although plaintiffs’ track safety expert, Alan Blackwell, suggested Union Pacific
might have “[a]t the very least” worked with Caltrans to “ensure barriers were placed to
prevent the intrusion of errant highway vehicles from accessing the railroad right-of-way,
fouling the … track facilities and thereby interfering with train operations,” he argued
actual removal of the tree was necessary to protect the motoring public. Plaintiffs’ civil
engineering expert, Shakir Shatnawi, Ph.D., P.E., also stated that vehicle crashes of the
type at issue here may be “prevented with adequate barrier protection or tree removal.”
Yet, materials relied upon by Shatnawi state, “Any nontraversable object (like trees) that
warrant shielding by a barrier, should be considered for removal. If this is not practical,
a barrier may be provided,” italics added. (Federal Highway Administration’s (FHWA)
Guide to Management of Roadside Trees, p. 38.) Here, nothing suggests it was
impractical to remove the tree.

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in determining whether an exception to section 1714 is warranted. As a result, we do not
view Union Pacific’s phrasing of the issue as problematic. It does not prevent us from
conducting an appropriate analysis of the issue.
IV. Analysis
A. Negligence and the Duty of Care
“The elements of negligence are: (1) defendant’s obligation to conform to a certain
standard of conduct for the protection of others against unreasonable risks (duty);
(2) failure to conform to that standard (breach of the duty); (3) a reasonably close
connection between the defendant’s conduct and resulting injuries (proximate cause); and
(4) actual loss (damages).” (Vasquez v. Residential Investments, Inc. (2004)
118 Cal.App.4th 269, 279.)
“Under general negligence principles … a person ordinarily is obligated to
exercise due care in his or her own actions so as not to create an unreasonable risk of
injury to others, and this legal duty generally is owed to the class of persons who it is
reasonably foreseeable may be injured as the result of the actor’s conduct. [Citations.]
[O]ne’s general duty to exercise due care includes the duty not to place another person in
a situation in which the other person is exposed to an unreasonable risk of harm through
the reasonably foreseeable conduct (including the reasonably foreseeable negligent
conduct) of a third person.” (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703,
716.)
Section 1714 codified the general principles of negligence. (Bonner v. Workers’
Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023, 1034.) To reiterate, section 1714
provides, in relevant part: “Everyone is responsible … for an injury occasioned to
another by his or her want of ordinary care or skill in the management of his or her
property …, except so far as the latter has, willfully or by want of ordinary care, brought
the injury upon himself or herself….” (§ 1714, subd. (a).) However, a landowner’s
“responsibility is not absolute, or based on a duty to keep the premises absolutely safe.

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[Citation.] The law does not impose a duty of extraordinary care.” (Brunelle v. Signore
(1989) 215 Cal.App.3d 122, 131.)
“The existence of a duty is not an immutable fact of nature, but rather an
expression of policy considerations providing legal protection.” (Shin v. Ahn (2007)
42 Cal.4th 482, 488.) “A duty exists only if ‘ “the plaintiff’s interests are entitled to legal
protection against the defendant’s conduct.” ’ ” (Brown v. USA Taekwondo (2021)
11 Cal.5th 204, 213).)
B. Rowland
The Rowland court set out seven non-exclusive factors that should be considered
in determining whether to create a judicial exception to the general duty of care
articulated in section 1714. (Rowland, supra, 69 Cal.2d at p. 113.) Those factors are
(1) “the foreseeability of harm to the plaintiff”; (2) “the degree of certainty that the
plaintiff suffered injury”; (3) “the closeness of the connection between the defendant’s
conduct and the injury suffered”; (4) “the moral blame attached to the defendant’s
conduct”; (5) “the policy of preventing future harm”; (6) “the extent of the burden to the
defendant and consequences to the community of imposing a duty to exercise care with
resulting liability for breach”; and (7) “the availability, cost, and prevalence of insurance
for the risk involved.” (Ibid.)
The first three Rowland factors relate to foreseeability and the remaining four
pertain to public policy considerations. (Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1145.) As stated in Rowland and other California Supreme Court cases, “it is clear that in
the absence of a statutory provision declaring an exception to the fundamental principle
enunciated by section 1714 …, no such exception should be made unless clearly
supported by public policy.” (Rowland, supra, 69 Cal.2d at p. 112, italics added; Kesner,
at p. 1144; Cabral, supra, 51 Cal.4th at p. 771.)
“[T]he Rowland factors are evaluated at a relatively broad level of factual
generality.” (Cabral, supra, 51 Cal.4th at p. 772.) “[T]he legal decision that an

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exception to … section 1714 is warranted, so that the defendant owed no duty to the
plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to
the formulation of a legal rule ….” (Cabral, supra, 51 Cal.4th at p. 773, original italics
omitted, italics added.) Thus, in applying the Rowland factors, we ask “whether carving
out an entire category of cases from that general duty rule is justified by clear
considerations of policy.” (Id., at p. 772.)
C. Rowland Foreseeability Factors
1. Foreseeability
“The foreseeability of the harm, though not determinative, has become the chief
factor in duty analysis.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515 (Scott).)
“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… If the law imposed a duty to protect against every conceivable harm,
nothing could function.” (Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th
990, 996.)
“ ‘[A]s to foreseeability, ... the court’s task in determining duty “is not to decide
whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally 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....” ’ [Citations.] ‘ “[F]oreseeability is not to
be measured by what is more probable than not, but includes whatever is likely enough in
the setting of modern life that a reasonably thoughtful [person] would take account of it
in guiding practical conduct.” ’ ” (Kesner, supra, 1 Cal.5th at p. 1145.)
Union Pacific contends the first three Rowland factors “provide no more than
weak support for the trial court’s duty ruling.” It argues “foreseeability of harm from an
obstacle on land bordering a highway is most significant when the obstacle is located
quite close to the travel lanes,” and states the subject tree “was located more than 20 feet

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from the closest travel lane and was outside the safe recovery zone Caltrans provided.”
Union Pacific acknowledges Caltrans’s design manual “recommends use of 30-foot-wide
clear recovery zones, if feasible” but contends “Caltrans presumably believed a 20-foot-
wide zone was adequate.”10
Union Pacific argues the existing clear recovery zone “has provided adequate
protection for motorists” and states it “has no record of prior complaints or accidents
involving the tree.” No evidence was submitted to demonstrate otherwise. In addition,
Union Pacific contends the area of SR 99 at issue is “configured in a relatively straight
line with no unusual features”—a characterization supported by both parties’ evidence—
and is not inherently dangerous.
Finally, Union Pacific argues the foreseeability factor “cuts two ways.” “For
example,” it states, “at a speed of just 40 miles per hour, a vehicle will travel
approximately 60 feet per second,” and, as a result, “obstructions located 40 feet or more
from the highway’s edge easily could be in the errant vehicle’s path of travel.”
Plaintiffs contend Union Pacific’s acknowledgement that the foreseeability factors
“provide … weak support for the trial court’s duty ruling” is a concession that “the type
of accident that occurred here … is foreseeable.” They further contend that Cabral,
supra, is instructive in that it “considered the issue of foreseeability in a factual context
that parallels this case.”
In Cabral, “[a] truck driver working for Ralphs Grocery Company (Ralphs)
stopped his tractor-trailer rig alongside an interstate highway … to have a snack.”
(Cabral, supra, 51 Cal.4th at p. 768.) A sign installed by Caltrans demarcated the area
for “Emergency Parking Only.” (Id., at p. 769.) The driver “saw the sign from where he
stopped, about 16 feet from the outermost traffic lane.” (Id., at p. 769.) While the rig
10 Caltrans’s 2012 Traffic Manual states “a 30-foot CRZ may be difficult to justify
for engineering, environmental or economic reasons. For these reasons, a minimum CRZ
of 20 feet on conventional highways is advised.”

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was stopped, a pick-up truck veered off the freeway and “collided at high speed with the
rear of the … trailer[.]” (Ibid.) After a jury found the Ralphs driver partially at fault for
the incident, the Court of Appeal reversed and held “Ralphs owed no legal duty to avoid
a collision between a negligent driver and the company’s stopped truck.” (Ibid.) The
California Supreme Court reversed the judgment of the Court of Appeal. (Id., at p. 787.)
In doing so, it concluded it was “not categorically unforeseeable” that “drivers may lose
control of their vehicles and leave a freeway for the shoulder area, where they may
collide with any obstacle placed there.” (Id., at pp. 768, 787.) The high court wrote:
“That [the Ralphs driver] parked 16 feet from the outermost traffic lane, rather than six
feet or 26 feet; that parking for emergencies was permitted in the dirt area he chose; that
[the pick-up driver] likely left the highway because he fell asleep or because of some
unknown adverse health event, rather than from distraction or even intoxication—none of
these are critical to whether [he] owed [the pick-up driver] a duty of ordinary care.” (Id.,
at p. 774.)
There are material similarities between Cabral and the instant case. Both involve
a vehicle or vehicles veering off of a highway and crashing into a stationary object in
relative proximity to the traffic lanes. The difference in the relative proximity of the
alleged hazards at issue here (20.7 feet) and in Cabral (16 feet) to traffic lanes is not
significant for purposes of determining foreseeability. (See Cabral, supra, 51 Cal.4th at
p. 774.)
There are also differences between Cabral and the instant case with regard to
foreseeability. For example, in Cabral, the allegedly negligent Ralphs driver was on
notice that non-emergency parking was not permitted by virtue of a sign installed by
Caltrans, whereas, here, there is no evidence Union Pacific was ever notified of an issue
pertaining to the subject tree. Moreover, because Caltrans is designated as the
responsible agency for highway design, construction, improvement, and maintenance
(Sts. & Hy. Code, §§ 90–92, 143, subd. (f)(1)(A)), and has a duty, when on notice of a

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dangerous condition, to “take such protective and remedial measures as may be
reasonably practical for the safety” of the motoring public (Briggs v. State of California
(1971) 14 Cal.App.3d 489, 499, fn.5), the owner of highway-adjacent land might
reasonably expect to be notified by Caltrans in the event a dangerous condition existed on
the land. That owner might reasonably contend that, “in the setting of modern life … a
reasonably thoughtful [person]” would not take account of an allegedly dangerous
conditions in guiding his or her conduct absent such notification from Caltrans. (See
Kesner, supra, 1 Cal.5th at p. 1145.)
Although there are differences between Cabral and the instant case with regard to
foreseeability, we cannot conclude that incidents such as the subject incident are not
foreseeable. 11 Consequently, for purposes of writ review, we presume this factor weighs
against creating a judicial exception to the ordinary duty of care.
2. Certainty of Injury
The second foreseeability factor, i.e., the degree of certainty that the plaintiff
suffered injury, “is relevant ‘primarily, if not exclusively, when the only claimed injury is
an intangible harm, such as emotional distress.’ ” (Kuciemba v. Victory Woodworks, Inc.
(2023) 14 Cal.5th 993, 1023 (Kuciemba).) Here, the claim is not intangible, and there is
no dispute that plaintiffs suffered injury as a result of the subject incident. However, the
relevance of this factor to the current case is placed in doubt by the foregoing statement
in Kuciemba. Thus, we conclude this factor neither favors nor disfavors creating a
judicial exception to the duty of ordinary care.
11 Our foreseeability determination is in keeping with our high court’s directive
that “Rowland factors are evaluated at a relatively broad level of factual generality.”
(Cabral, supra, 51 Cal.4th at p. 772.) Had we been called upon to consider whether
accidents of the specific type at issue here are foreseeable, our determination might have
been different given the relatively unique and catastrophic nature of the subject incident.

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3. Closeness of the Connection Between Union Pacific’s Conduct and
the Injury Suffered
As to the third and final foreseeability factor—i.e., the closeness of the connection
between Union Pacific’s conduct and the injuries suffered by plaintiffs (or decedents)—
Union Pacific concedes “[t]here is always a risk that two cars will collide on a highway,
possibly resulting in serious injury or death to the drivers or passengers, whether or not
some obstacle is located 20 feet from the edge of the highway.” Union Pacific argues,
however, “the tree did not increase the chances that motorists would lose control of their
cars and leave the highway. Nor did Union Pacific have any control over the decedent
drivers’ behavior,” citing, without discussion, Vasilenko v. Grace Family Church (2017)
3 Cal.5th 1077, 1085–1086 (Vasilenko).
In Vasilenko, the plaintiff had parked in the defendant church’s overflow parking
lot and was struck by a car as he attempted to cross a public street in order to get to the
church’s main premises. (Vasilenko, supra, 3 Cal.5th at p. 1081.) He sued the church
contending it “owed him a duty of care to assist him in safely crossing the public street.”
(Ibid.) The trial court granted summary judgment in favor of the church on grounds no
duty was owed but the Court of Appeal reversed. (Id., at p. 1083.) Our high court agreed
with the trial court that no duty was owed and reversed the decision of the Court of
Appeal. (Id., at pp. 1082, 1098.)
The Vasilenko court wrote, “The third [Rowland foreseeability] factor … is
‘strongly related to the question of foreseeability itself’ [citation], but it also accounts for
third-party or other intervening conduct. [Citation.] Where the third party’s intervening
conduct is foreseeable or derivative of the defendant’s, then that conduct does not
‘ “diminish the closeness of the connection between defendant[’s] conduct and plaintiff’s
injury.” ’ ” (Vasilenko, supra, 3 Cal.5th at p. 1086.) The court wrote: “[U]nless the
landowner impaired the driver’s ability to see and react to crossing pedestrians, the
driver’s conduct is independent of the landowner’s. Similarly, unless the landowner

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impaired the invitee’s ability to see and react to passing motorists, the invitee’s decision
as to when, where, and how to cross is also independent of the landowner’s.” (Ibid.)
Thus, the court determined there was “only an attenuated relationship to the invitee’s
injury” and “conclude[d] that the closeness factor tips against finding a duty.” (Ibid.)
We agree there is no evidence before us that the tree increased the chances that a
collision on SR 99 would occur, or that Union Pacific was able to control the decedent
drivers’ behaviors. However, the subject incident did occur, in part, on Union Pacific’s
land and there is evidence the subject tree was an instrumentality that contributed to
decedents’ deaths. The evidence tends to show (1) the decedents Sandiford’s recreational
vehicle struck decedent Abrams’s Freightliner truck causing the vehicles to veer off the
roadway and onto Union Pacific’s land; (2) the recreational vehicle’s left side (where its
fuel components were located) struck the tree; (3) a fire ensued due to the catastrophic
failure of the fuel components on both vehicles; (4) the fire did not start until the vehicles
collided with the tree; (5) the “material first ignited was gasoline … released from the
[recreational vehicle’s] fuel system”; and (6) decedents Sandiford died as a result of “fire
related injuries, including smoke inhalation.”
Thus, there are facts to suggest a close connection between Union Pacific
permitting the tree to remain on its land and decedents’ deaths. We conclude this third
foreseeability factor weighs against creating an exception to the duty of ordinary care.
D. Rowland Policy Factors
“Even if the foreseeability factors of Rowland … weigh in favor of recognizing a
duty of care, the courts ‘must also consider whether public policy requires a different
result.’ [Citations.] ‘A duty of care will not be held to exist even as to foreseeable
injuries ... where the social utility of the activity concerned is so great, and avoidance of
the injuries so burdensome to society, as to outweigh the compensatory and cost-
internalization values of negligence liability.’ ” (Jabo v. YMCA of San Diego County
(2018) 27 Cal.App.5th 853, 885.) “ ‘[S]ocial policy must at some point intervene to

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delimit liability’ even for foreseeable injury [citation], and ‘policy considerations may
dictate a cause of action should not be sanctioned no matter how foreseeable the risk.’ ”
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 476, italics omitted.)
1. Moral Blame
“ ‘Moral blame has been applied to describe a defendant’s culpability in terms of
the defendant’s state of mind and the inherently harmful nature of the defendant’s acts.’ ”
(Martinez v. Bank of America Nat. Trust & Sav. Ass’n (2000) 82 Cal.App.4th 883, 896
(Martinez).) “ ‘[T]his factor in the duty analysis is intended to describe a high degree of
moral culpability beyond that associated with ordinary negligence.’ ” (Day v. Lupo Vine
Street, L.P. (2018) 22 Cal.App.5th 62, 74–75.) A “high[] degree of moral culpability”
may be found “where the defendant (1) intended or planned the harmful result [citation];
(2) had actual or constructive knowledge of the harmful consequences of their behavior
[citation]; (3) acted in bad faith or with a reckless indifference to the results of their
conduct [citations]; or (4) engaged in inherently harmful acts.’ ” (Martinez, supra, at p.
896.)
Union Pacific argues it has no moral blame in this matter because it had “no
responsibility for highway design, did not cause the highway collision at issue, and there
had been no accidents involving the tree over the course of decades.” Union Pacific
quotes Scott for the proposition “there is nothing inherently wrong with placing a fixed
object on one’s property.” (Scott, supra, 5 Cal.App.4th at p. 517.)
In response, plaintiffs contend Union Pacific’s “conduct need not be highly
blameworthy to satisfy this element” and note that in Cabral, where a duty was found,
the high court stated, “a driver who negligently stops his or her vehicle alongside a
freeway does not act in an especially blameworthy manner.” (Cabral, supra, 51 Cal.4th
at p. 782.) The court observed that “no state or federal law encourages or authorizes
drivers to stop their vehicles alongside an interstate highway” for nonemergency
purposes. (Ibid., italics omitted.) The court summed up the point: “Stopping alongside

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the freeway for such discretionary purposes is hardly a heinous act, but neither does it
receive any special legal protection.” (Ibid.)
With regard to the moral blame factor, there are significant differences between
the facts in Cabral and those of the present case. In Cabral, the Ralphs driver actually
created the alleged hazard by parking in an unauthorized area (Cabral, supra, 51 Cal.4th
at p. 782) whereas, here, there was no act on the part of Union Pacific that created the
alleged hazard (e.g., by planting the tree near SR 99). Also in Cabral, the Ralphs driver
was arguably on notice he was creating a hazard because he observed the Caltrans sign
advising that only emergency parking was allowed (Cabral, at p. 769) whereas, here,
there were no related warnings, postings, or other notifications that might have alerted
Union Pacific to a dangerous condition caused by the subject tree. Finally, the Cabral
court noted the Ralphs driver could have been ticketed for parking in an area designated
for emergency parking only (Cabral, at p. 782) whereas, here, the alleged negligent act
was not an infraction or other public offense.
Plaintiffs also contend “moral blame … can attach to [Union Pacific’s] failure to
take reasonable steps to avert foreseeable harm,” citing Peterson v. San Francisco
Community College Dist. (1984) 36 Cal.3d 799, 814 (Peterson). This statement does not
accurately capture the bases for the Peterson court’s finding of moral blame.
In Peterson, the plaintiff was assaulted on a stairway in a community college
parking lot. (Peterson, supra, 36 Cal.3d at p. 805.) She alleged the perpetrator “used a
modus operandi … similar to that used in previous attacks on the same stairway”; the
school was “aware that other [similar] assaults … had occurred in that area and had taken
steps to protect students”; and she had “relied upon this increased protection.” (Id., at
p. 805.) She also alleged a “special relationship” between her and the defendant school
district giving rise to a duty to protect her or warn her of the danger. (Id., at p. 804.)
The defendant school district demurred on various grounds but the Peterson court
concluded the “primary question … [was] whether under the facts as alleged the

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defendants owed her a duty of care.” (Peterson, supra, 36 Cal.3d at p. 805.) After
weighing the Rowland factors, the court held the plaintiffs’ allegations were “sufficient to
establish a common law duty of care” toward plaintiff. (Id., at p. 815.) The Peterson
court’s determination that the school district’s alleged failure to act was morally
blameworthy was not merely due to its failure to take reasonable steps to correct a
foreseeable risk; it was also based on other factors including the defendants’ knowledge
of prior similar attacks and its subsequent failure to warn plaintiff of, or to take measures
to protect the plaintiff against, a known danger. (Ibid.) Here, Union Pacific had no
knowledge of prior similar incidents.
Moral blame may also be warranted in situations where the defendant reaps a
financial benefit from risks it has created or knowingly allowed to exist. (Kuciemba,
supra, 14 Cal.5th at pp. 1025–1026 [considering whether the defendant businesses
financially benefitted from ignoring health and safety standards]; Kesner, supra,
1 Cal.5th at p. 1151 [moral blame found, in part, because “commercial users of asbestos
benefitted financially from their use of asbestos and had greater information and control
over the hazard than employees’ households”].) Here, although Union Pacific arguably
saved money or resources by not removing the tree, there is no evidence it did so in a
conscious effort to avoid any duty to remove the tree.
Finally, “[r]elative inequality between the parties may also bear upon moral
blame.” (Kuciemba, supra, 14 Cal.5th at p. 1026.) “ ‘[W]here the plaintiffs [or, in cases
such as this, the decedents] are particularly powerless or unsophisticated compared to the
defendants or where the defendants exercised greater control over the risks at issue,”
courts have found moral blame. (Ibid., quoting Kesner, supra, 1 Cal.5th at p. 1151.) The
parties have not argued, or submitted evidence tending to show, that decedents were
particularly powerless or unsophisticated compared to Union Pacific in any meaningful
way with regard to the alleged hazard posed by the subject tree. The driving public is
sufficiently sophisticated to appreciate the risk of high-speed motor vehicle travel.

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Moreover, the case cited in Kesner for the proposition that moral blame may be found
where a defendant “exercised greater control over the risks at issue” was Peterson,
discussed ante. (Kesner, at p. 1151, citing Peterson, 36 Cal.3d at p. 814.) As mentioned,
moral blame was assigned in that case due, in part, to the fact the defendant was on notice
of prior similar incidents. (Peterson, at p. 815.)
Here, Union Pacific did not create the alleged hazard, did not cause the collision
between the decedents’ two vehicles, was not on notice of the alleged risk posed by the
tree as a result of any prior similar incidents or notifications from others, had no greater
knowledge of the risk posed by the tree than did passing motorists, committed no
infraction, public offense or any heinous act, and had no responsibility for the design of
SR 99 or clear recovery zones. Moreover, there is no evidence it made a calculated
decision not to remove the tree in order to obtain monetary gain or some other benefit.
We conclude no moral blame can be attributed to Union Pacific in this matter.
Consequently, this factor weighs in favor of creating a judicial exception to the ordinary
duty of care.
2. The Policy of Preventing Future Harm
Union Pacific contends the policy of preventing future harm “is most significant
where the defendant is the entity ‘best suited’ to prevent the injury at issue.” Union
Pacific cites to University of Southern California v. Superior Court (2018)
30 Cal.App.5th 429 (University), disapproved on other grounds in Brown v. USA
Taekwondo, supra, 11 Cal.5th 204, wherein it was stated,
“ ‘The policy of preventing future harm is ordinarily served by
allocating costs to those responsible for the injury and best suited to prevent
it. [Citation.] “In general, internalizing the cost of injuries caused by a
particular behavior will induce changes in that behavior to make it safer.
That consideration may be ‘outweighed, for a category of negligent
conduct, by laws or mores indicating approval of the conduct or by the
undesirable consequences of allowing potential liability.’ ” ’ ” (University,
at p. 454, quoting Vasilenko, supra, 3 Cal.5th at p. 1087.)

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Union Pacific argues “only Caltrans has both the expertise to determine the attributes of a
clear recovery zone that any portion of a highway might require and the ability to take
appropriate steps to provide for the needed recovery zone.”
In response, plaintiffs contend the policy of preventing future harm weighs against
creating an exception to the general duty of care in this matter. Plaintiffs note that in
Kesner, the court wrote: “In general, internalizing the cost of injuries caused by a
particular behavior will induce changes in that behavior to make it safer.” (Kesner,
supra, 1 Cal.5th at p. 1150.) Plaintiffs further argue there are no laws or mores at play
here that outweigh the policy of preventing future harm.
In this matter, we believe Union Pacific has the stronger argument. First, we agree
that Caltrans has expertise in this matter that members of the public generally lack. This
is due, in no small measure, to the fact that the Legislature has designated Caltrans as the
responsible agency for the design, construction, improvement and maintenance of the
highway system in California (Sts. & Hy. Code, §§ 91, 92, 143, subd. (f)(1)(A)), and has
granted Caltrans “full possession and control of all state highways” and the State’s rights
therein. (Id., at § 90.) Likewise, it has given Caltrans the power to acquire land for
highway purposes through eminent domain or other means (id., at §§ 102, 104), and
Caltrans is subject to a duty, upon receiving notice of a dangerous condition, to “take
such protective and remedial measures as may be reasonably practical for the safety” of
highway users (Briggs, supra, 14 Cal.App.3d at p. 499, fn. 5). The Caltrans publications
submitted by plaintiffs demonstrate that Caltrans employees are trained to recognize and
address hazards posed by mature trees and other fixed objects.
Materials submitted by plaintiffs also demonstrate that numerous variables and
engineering considerations must be taken into account in designing a clear recovery

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zone.12 The same is true for installing barriers or guardrails.13 It is not reasonable to
expect the lay public to have (or develop) the necessary expertise to properly ascertain
and apply those variables. If lay persons are required to make such calculations and
judgments, it is relatively certain mistakes will be made, which could easily exacerbate
potential dangers and result in greater risks to the motoring public. Moreover, placing
12 For example, Caltrans’s 2012 Traffic Manual states, “Site-specific conditions
such as volume, speed, alignment, side slope, weather, and environmental conditions
need to be considered when determining the CRZ.” Caltrans’s 2018 Highway Design
Manual sets a 30 to 40 foot setback from trees exceeding a certain size, but may be
reduced “on cut slopes which are 2:1 or steeper.” In fact, 2011 design guidelines from
the American Association of State Highway and Transportation Officials (AASHTO)
provide different CRZ widths depending on (1) four different categories of average daily
traffic (i.e., under 750, 750–1500, 1500–6000, and over 6000 vehicles), (2) five different
design speeds (i.e., under 40 miles per hour (mph), 45–50 mph, 55 mph, 60 mph, and 65–
70 mph), (3) three different categories of either foreslope or backslope (i.e., 1V:6H or
flatter (we presume the V stands for vertical and H stands for height), 1V:5H to 1V:4H,
and 1V:3H). This list is but a sample of the variables and engineering considerations that
experts take into account in determining a CRZ.
13 According to Federal Highway Administration (FHWA) guidelines, guardrails
must be properly designed and installed according to AASHTO guidelines. (FHWA’s
1986 Guide to Management of Roadside Trees, p. 38) A 2012 Caltrans Traffic Manual
indicates different types of guardrails (i.e., metal beam guardrails, concrete barriers, and
cable guardrails) may be used depending on the risk involved. (2012 Caltrans Traffic
Manual, § 7-03.2.) Caltrans publications describe a number of variables and engineering
considerations in the use of guardrails including collision history, roadway alignment,
volume of traffic, speed of traffic, climate, the size or length of the guardrail, and its
placement in relation to the highway. (2012 Caltrans Traffic Manual, §§ 7-03.1–7-03.3;
Caltrans’s 2017 Traffic Safety Systems Guidance, p. 20.) “Where guardrail is to be
installed on an existing highway …, the conditions relating to the road-side feature
should be verified, such as slopes, clearances, dimensions, underground utilities, and
material.” (2012 Caltrans Traffic Manual, § 7.03.1.) FHWA guidelines suggest
guardrails to shield fixed objects (such as trees) should be resorted to only where removal
of the obstruction is impractical. (FHWA’s 1986 Guide to Management of Roadside
Trees, p. 38.) In addition, FHWA guidelines caution: “Using a section of guardrail
horizontally longer than the width of the tree … may create a greater problem than
leaving the tree unprotected[,]” and guardrails “may actually increase the number of
accidents … particularly when the guardrail protects a narrow object such as a tree,”
italics added. (Ibid.)

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potential liability with landowners who lack such expertise may well create perverse
incentives for Caltrans to avoid its responsibilities in making our highways safe in order
to save on costs and/or spread potential liability to others who lack such expertise. Thus,
the policy of preventing future harm may, in fact, be undermined were we to recognize a
landowner duty in cases such as the one now before us.
Whether recognizing a duty on the part of Union Pacific and like-situated
landowners would sufficiently incentivize private owners to clear their land of all
stationary objects within 30 to 40 feet of an abutting highway is, at best, a dubious
proposition. The cost for removing a single tree (i.e., the tree in question) was more than
$3,300 per Caltrans. 14 It is not difficult to imagine that many affected landowners would
be unable (or unwilling) to absorb the cost of removing all fixed objects within a suitable
distance for a clear recovery zone. Thus, there may be little preventative benefit in
recognizing a duty in matters such as this.
Based on the foregoing, we conclude the policy of preventing future harm weighs
in favor of creating a judicial exception to the ordinary duty of care owed by landowners.
3. Burden
Union Pacific argues it is “common knowledge … that California has thousands of
miles of roads and highways bordering private property that contains trees” and other
“structures that could become an obstacle for an errant motorist.” Union Pacific argues
that cars often travel on such roads and highways “at or very close to freeway speeds,”
citing California Vehicle Code section 22349, which generally provides a maximum
speed limit of 55 miles per hour for undivided two-lane highways. (Veh. Code, § 22349,
subd. (b).) Union Pacific posits “the risk of injury for motorists traveling at higher
speeds on a two-lane highway in a wooded area surely is at least as great as the risk
14 As previously mentioned, Caltrans removed the tree in 2021, five years after the
subject incident, as part of a project to widen SR 99. In discovery, Caltrans stated the
cost to remove the tree was $3,339.96.

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associated with roads and freeways like SR 99.” It then asks, “whether private
landowners should be under a duty to remove these trees from their property lest they be
exposed to potentially ruinous liability,” and argues this court should answer the question
in the negative.
Union Pacific has not presented evidence concerning the prevalence of trees
bordering highways or the number of landowners that might be impacted if courts were to
uphold a duty on their part to provide what amounts to an effective clear recovery zone.
Moreover, Union Pacific has not requested this court judicially notice such facts. We
will not do so sua sponte. 15
Notably, a similar argument was made and rejected in Cabral, supra. In that case,
defendant argued that “recognizing a duty to exercise care in parking alongside a freeway
‘would have far-reaching consequences,’ allowing for potential liability for … a
landowner who places a fixed object such as a light post or mailbox next to a road if these
vehicles or objects were later hit by a drunken or drowsy motorist on the road.” (Cabral,
supra, 51 Cal.4th at p. 783.) In rejecting the argument, our high court stated, “ ‘freeways
are radically different in their purpose and design from other public roads,’ making
extrapolation of liability rules from freeways to other urban, suburban, or rural roads an
uncertain exercise at best.” (Ibid.) Given this statement in Cabral, and the lack of
supporting evidence as to the prevalence of trees and other fixed objects along highways,
we cannot make a burden determination on these grounds.
15 Although one might readily acknowledge the prevalence of trees and other
structures along, and in relative proximity to, California roads and highways (including
SR 99), there are many other factors that impact whether, under plaintiffs’ theory of the
case, a landowner would be subject to a duty to remove, or protect the public from, those
objects. (See, e.g., footnotes 12 and 13, ante.) Even were this court inclined to judicially
notice the widespread presence of trees and structures along California’s roads and
highways, we would be hard-pressed to draw a broader conclusion concerning the impact
of recognizing a duty in cases such as this on other owners of highway-adjacent land.

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Union Pacific also relies on the following passage in Scott, supra, to argue in favor
of this court creating an exception to the duty imposed by section 1714:
“While future harm might be prevented by holding property owners
responsible whenever a fixed object on their property contributes to injuries
suffered on adjacent highways, we doubt that society is willing to so restrict
property rights. Imposing liability in these circumstances would effectively
require landowners to dedicate a portion of their property as a safety zone
to protect errant drivers. [Citation.] We think that a decision to force
property owners to protect the motoring public should be reached through
legislative action rather than tort law.” 16 (Scott, supra, 5 Cal.App.4th at
p. 517, italics added.)
To this Union Pacific adds, “the state and other public entities may always exercise the
power of eminent domain subject to payment of just compensation.” It argues the
Legislature is best suited to consider “all competing public policies, determine when
wider clear recovery zones should be used, and, if necessary, provide funding to acquire
the needed property.” Aside from directing this court to comments made in Scott (as
reflected in footnote 16 of this opinion), plaintiffs did not address this argument in their
briefing to this court.
A similar point was made in the concurring and dissenting opinion in Laabs v.
Southern California Edison Co. (2009) 175 Cal.App.4th 1250 (Laabs)—a case involving
a two-vehicle collision at an intersection of two city streets. (Id., at p. 1264.) There, the
passenger in one of the vehicles was injured when the collision caused one of the cars to
veer off and hit “a concrete light pole erected 18 inches from the curb.” (Ibid.) The
Laabs court reversed a summary judgment in favor of Southern California Edison
16 In a footnote, the Scott court clarified: “We do not mean to imply that a property
owner is free to place an object next to a highway with no thought to the possible
consequences. For example, property owners may be held liable if they obstruct views at
an intersection [citation], or if they place a fixed object where it is reasonably foreseeable
that persons traveling with reasonable care would deviate from the highway in the
ordinary course of travel (see Rest. 2d Torts, § 368).” (Scott, supra, 5 Cal.App.4th at
p. 517, fn. 3.)

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Company concluding it had “not established under these circumstances the absence of a
duty of care to plaintiff as a matter of law.” (Id., at p. 1279.) The justice authoring the
concurring and dissenting opinion, in considering public policy, wrote:
“ ‘Carried to its logical conclusion [the majority’s proposition] would
require a landowner to remove every tree, fence, post, mailbox or name
sign located on his property in the vicinity of the highway, or permit them
to remain, subject to possible liability…. [¶] ‘[S]uch a rule would result in
limiting the owner’s use of that portion of his property which abuts the
road, and would be equivalent to a taking of private property for a public
use without just compensation ….’ (Hayes v. Malkan (1970) 26 N.Y.2d
295, ….)” (Laabs, supra, 175 Cal.App.4th at p. 1295, (conc. & dis. opn. of
Hollenhorst, J.), italics added.)
Our state Constitution provides, in part: “Private property may be taken or
damaged for a public use and only when just compensation … has first been paid to, or
into court for, the owner.” (Cal. Const., Art. 1, § 19, subd. (a).) Our federal Constitution
provides similarly. “The Takings Clause of the Fifth Amendment states: ‘nor shall
private property be taken for public use, without just compensation.’ ” (DeVillier v.
Texas (2024) 601 U.S. 285, 291; U.S. Const., 5th Amend.)
“The fundamental concept that underlies the just compensation clause of the Fifth
Amendment is that government cannot force some people alone to bear public burdens
that, in fairness and justice, should be borne by the public as a whole.” (7 Miller & Starr,
Cal. Real Estate (4th ed 2024 update) Inverse Condemnation, § 23:24; Massingill v.
Department of Food & Agriculture (2002) 102 Cal.App.4th 498, 505 [same, analyzing
California and federal Constitutions’ takings clauses].)
In Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental
Protection (2010) 560 U.S. 702 [130 S.Ct. 2592, 177 L.Ed.2d 184] (Stop the Beach),
Justice Scalia, writing the plurality opinion, held the federal takings clause “bars the State
from taking private property without paying for it, no matter which branch is the
instrument of the taking…. [T]he particular state actor is irrelevant. If a Legislature or a

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court declares that what was once an established right of private property no longer
exists, it has taken that property, no less than if the State had physically appropriated it or
destroyed its value by regulation.” (Id., at p. 715.) As stated in Surfrider Foundation v.
Martins Beach 1, LLC (2017) 14 Cal.App.5th 238 (Surfrider), “The lesson we take from
Stop the Beach is that where it has been determined that a court action eliminates an
established property right and would be considered a taking if done by the legislative or
executive branches of government, it must be invalidated as unconstitutional, whether
under the takings or due process clauses.” (Id., at p. 262 [considering takings under
California and federal Constitutions].)
Other jurisdictions have grappled with issues similar to those presented here. For
example, the court in Hayes v. Malkan (1970) 26 N.Y.2d 295 [258 N.E.2d 695]
(Malkan), cited by the concurring/dissenting justice in Laabs, was faced with facts and
legal questions similar to those in Laabs. In Malkan, the plaintiff was a passenger in a
vehicle that struck a utility pole located on private property, approximately seven inches
from the road on which the vehicle was driving. (Malkan, supra, 258 N.E.2d at p. 695.)
The plaintiff sued and obtained a judgment against the defendant utility company that
owned the utility pole. (Id., at p. 697.) On appeal, New York’s highest court ruled the
trial court erred by “instruct[ing] the jury that ‘the law imposes a duty upon the defendant
… that the pole must be so located as to avoid unreasonable and unnecessary danger to
travelers upon the highway, regardless of whether it is on private or public property.’ ”
(Id., at p. 695, italics in original.)
The Malkan court observed the court had taken the position in other cases that
“placement of poles or other objects …, raises a question of fact for jury determination as
to whether the placement of that object was such as to create an unreasonable danger for
travelers on the highway” but distinguished those other cases as involving placement of
fixed objects on public property rather than private property. (Malkan, supra, 258 N.E.2d
at p. 696.) Where the pole (or other object) is on private property, the court determined

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“there should be no liability against the landowner, or his licensee, for an injury to a
traveler arising out of a collision” with it. (Ibid.) The court explained that a contrary
ruling would “severely restrict[] the property owner’s use of his own land.” (Ibid.)
The Malkan court concluded this “would impose an intolerable burden upon a
property owner,” would limit the landowner’s use of the property, and “would be
equivalent to a taking of private property for a public use without just compensation.”
(Malkan, supra, 258 N.E.2d at p. 696.) It determined a utility pole was not “a trap, nor is
any other visible, sizeable, above-the-surface structure.” (Id., at p. 697, italics added.)
As a policy matter, the court concluded:
“It is the continuing duty of the State or the municipality, not the
abutting landowners, to maintain the highways and streets in a reasonably
safe condition for ordinary use by the public…. If the public right of way is
too narrow, because of objects on the abutting land, the burden should fall
upon the State to acquire additional property for its right of way and pay
just compensation for it. In the absence of regulating legislation, the
adjoining landowner or his licensee should not be required to restrict the
lawful use of his own property, or to use it at his peril.” (Malkan, supra,
258 N.E.2d at p. 697, italics added.)
A similar holding was reached in Hutchings v. Bauer (1992) 149 Ill.2d 568
[599 N.E.2d 934]. There, the Supreme Court of Illinois considered whether operators of
a horse training business breached a duty of care to the public by erecting a barrier on
their land to prevent errant motorists from crashing through fencing that enclosed a
frequently used training lane for horses. (Id., 599 N.E.2d at pp. 934–935.) The court
wrote: “The defendants were under no duty to dedicate and donate their land to the public
without compensation for use as a travelled way. To hold otherwise would constitute a
denial of substantive due process under our Federal and State Constitutions.” (Id., at
pp. 935–936.)
The takings clauses in our state and federal Constitutions embody a fundamental
public policy against appropriating private property for public use without payment of

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just compensation to the owner. Yet, plaintiffs are attempting to hold Union Pacific
responsible for creating a clear recovery zone, which would preclude most uses of the
property at issue by requiring that it remain largely unimproved and free of any
substantial fixed objects. Such matters, by legislation, are the responsibility of Caltrans.
(E.g., Sts. & Hy. Code, §§ 90-92, 143, subd. (f)(1)(A).) A finding of duty in cases such
as this would largely have the same effect as a judgment of condemnation—except that
no compensation would have been paid by the State. The burden to the property would
last indefinitely (or as long as a clear recovery zone was needed for the adjacent portion
of SR 99). And landowners whose property rights are so affected would likely
experience a decline in their property’s value if a portion of their property had to be
dedicated to public use as a clear recovery zone and was divested of any (or most) viable
economic uses. Relatedly, a prospective purchaser of such property would likely insist
on a discounted price for the property should obstructions remain in place and require
removal.
Recognition of such a duty would effectively result in a taking of property without
just compensation. (See Stop the Beach, supra, 560 U.S. 702, 715; Surfrider, supra,
14 Cal.App.5th at p. 262.) In addition, the imposition of liability for breaching such a
duty might well spawn inverse condemnation suits by private landowners against the
State on the theory that their land was effectively taken for a public purpose. 17
17 A property owner whose land has been taken or damaged for public use without
just compensation may initiate a lawsuit for inverse condemnation. (Pacific Bell v. City
of San Diego (2000) 81 Cal.App.4th 596, 601.) “To state a cause of action for inverse
condemnation, the property owner must show that there was a taking or damaging by a
public entity of a valuable property right that the property owner possesses, that the
taking or damaging was for a public use, and that the invasion or appropriation directly
and specially affected the property owner to his or her injury. Property is ‘taken or
damaged’ within the meaning of the California Constitution so as to give rise to a claim
for inverse condemnation, when: (1) the property has been physically invaded in a
tangible manner; (2) no physical invasion has occurred, but the property has been
physically damaged; or (3) an intangible intrusion onto the property has occurred, which

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We believe these policy considerations weigh heavily in favor of creating a
judicial exception to the ordinary duty of care.
4. Availability of Insurance
Union Pacific contends recognizing a duty in situations similar to the case before
us would likely cause an increase in the cost of homeowner’s insurance especially for
abutting landowners that live in rural areas. Plaintiffs contend California already
recognizes the duty that Union Pacific seeks exemption from—i.e., the duty imposed by
section 1714. Thus, plaintiffs contend, the costs of recognizing such a duty are already
subsumed in the pricing of homeowner’s insurance.
We have no evidence before us that indicates whether insurance companies
already factor in potential liability in situations such as that before us, or whether
insurance companies have operated under an assumption potential liability in such
situations does not exist. Consequently, we cannot assess this factor in determining
whether to create a judicial exception to section 1714.
V. Summary
Although we are of the opinion the type of incident at issue in this lawsuit was
foreseeable, we conclude public policy clearly weighs in favor of creating a judicial
exception to the duty of care in this matter.
has caused no damage to the property but places a burden on the property that is direct,
substantial, and peculiar to the property itself.” (7 Miller & Starr, Cal. Real Estate (4th
ed. 2024 update) Inverse Condemnation, § 23:1, fns. omitted.)

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DISPOSITION
The petition for writ of mandate is granted. Let a writ of mandate issue directing
the trial court to vacate its order denying Union Pacific Railroad Company’s motion for
summary judgment, and enter a new order granting the motion. Petitioner is entitled to
recover its costs in this proceeding.
SNAUFFER, J.
WE CONCUR:
HILL, P. J.
MEEHAN, J.

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