Driving around design immunity to move forward on your dangerous road case against the city, county or state
In every dangerous condition case against a public entity, design immunity looms as a hidden minefield. These cases may not survive summary judgment without strategic identification of the facts that matter in defeating this favorite of all roadway defenses.
Let’s be honest: getting around design immunity is too often an afterthought. We initially take these cases because a carelessly designed roadway (or signal, or crosswalk, or sidewalk) caused someone to suffer devastating injuries and we sometimes fail to see beyond that. To be successful, you need to move design immunity to the front of your legal analysis. You need a discovery approach that explores all possible avenues for avoiding design immunity in any dangerous roadway case. And make no mistake: after the California Supreme Court’s decision in Hampton late last year, this task has become even more challenging.
Design immunity basics
A case involving a dangerous public roadway must be framed as involving a “dangerous condition of public property” under Government Code sections 835 and 815. Section 835 requires the plaintiff to establish that, due to negligent conduct of the entity’s employee or due to the entity’s failure to warn, a property owned or controlled by the entity was in a dangerous condition that created a reasonably foreseeable risk of the kind of harm that occurred.
But even where the plaintiff makes this showing, Government Code section 830.6 provides the defendant entity with the affirmative defense of design immunity. To take advantage of this immunity, the public entity has the burden to produce evidence establishing three elements: (1) causation (the plaintiff contends a design defect caused the incident); (2) discretionary approval (a person or body vested with discretionary authority approved the design, or it was approved in conformity with preexisting standards); and (3) reasonableness (there is substantial evidence on the basis of which a reasonable person or entity could have approved the design or standards). The first two questions, if facts are disputed, are for the jury. The reasonableness question is always one for the court to decide.
Finally, even if the entity establishes these elements of immunity, a plaintiff can avoid design immunity by proving that the changed-conditions exception applies. (CACI 1123; Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63.) There are three elements to this exception: (1) the design became dangerous because of a change in physical conditions; (2) the defendant had actual or constructive notice of the change; and (3) the defendant had a reasonable amount of time to carry out corrective work or did not reasonably attempt to provide adequate warnings of the condition.
Causation: Was design defect the cause?
A case that involves a dangerous condition of public property does not necessarily involve defective design. If an entity caused a dangerous condition on its property by negligently constructing, installing, or maintaining the property, design immunity does not apply. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575).
In a case where defective design played a role alongside other wrongdoing (inadequate maintenance, for example), the case survives immunity so long as the inadequate maintenance was a concurrent cause of injury. (Ibid.) In Mozzetti, a roadway was defectively designed to allow inadequate drainage, but it was also negligently maintained such that it kept clogging. Because negligent maintenance was involved, the city was not immunized from liability for the resulting flooding.
Questions for discovery:
• Did the as-built construction drawings differ from, or add to, the design drawings in any material respect?
• Did the actual scene differ in any material respects from the as-built drawings? (Use an investigator, Google Earth historical imagery, and agency aerial and scene photographs to establish this.)
• When did the agency last conduct maintenance? Striping? Paving? Sign installation (check sign logs)?
• How often did the agency conduct maintenance checks? For what types of issues? When most recently before the accident? Were any relevant issues identified but not remediated?
• Were any relevant issues present at the scene but not identified by maintenance? Were any lights out? Is there any overgrown foliage? Sand or dirt in a bike lane? Faded striping? Bent signs? Observe the scene at nighttime and don’t neglect the historical images.
• Were there pending orders for work to be done at the scene at the time of the incident? Or had any changes been requested, designed, or studied, but not yet implemented?
• Was any construction ongoing? Were any temporary signs or warnings present?
Likewise, if the dangerous condition was due to “physical surroundings” independent of the entity’s design, and the entity had notice but failed to warn of the danger, this also provides a path to escape immunity. (Flournoy v. State (1969) 275 Cal.App.2d 806.)
Of course, there must be some wrongdoing on the entity’s part. If the plaintiff alleges that the entity should have protected against the physical surroundings, this may collapse back into a defective design claim. On the other hand, if the design failed altogether to address an aspect of the physical surroundings, then arguably the plaintiff is not criticizing anything about the design, but rather the absence of a design in that regard. (See Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 759.) If physical surroundings had become more dangerous since the design was adopted, the plaintiff should also argue that the changed condition exception applies (as discussed in more detail below).
Questions for discovery:
• Did some sort of “physical surrounding” play a role in the accident? Consider ice, snow, rainwater, flooding, trees and foliage, wildlife, debris, embankments, surrounding buildings and parked cars obstructing visibility, and sun position, for example.
• Did the entity know of these physical surroundings? If not, should it have known of them?
• Were there any material changes in these physical surroundings since the time of the design (if so, argue the changed conditions exception)?
• Did the entity take any steps to warn or otherwise protect against dangers presented by these surroundings?
Discretionary approval: Did someone with discretionary authority approve the design?
Under the second element of immunity, plaintiffs do not get much mileage out of questioning whether the person who approved the design had authority to do so, or whether that authority was discretionary. Instead, immunity is more often avoided by showing that the actual scene differed from the approved design in a way that contributed to the injury. (Cameron v. State (1972) 7 Cal.3d 318; see also Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451.)
As our courts have recognized, there is overlap between the first and second element of design immunity. If some constructed feature at the scene was not part of the approved design, this defeats both element one (it is not a design defect if nobody designed it that way) and element two (nobody approved the dangerous feature).
Questions for discovery:
• Is there any constructed or natural condition at the accident scene that is at variance with the design drawings or construction documents (an explicit conflict)?
• Is there any dangerous natural or constructed condition at the accident scene that is not mentioned in the design drawings and/or construction documents?
• Did the agency fail altogether to consider pedestrian safety, bicyclist safety, or some other aspect of design? Does the agency acknowledge that its plans should always consider this? Ask what the agency did to protect X group of people under Y circumstances or conditions.
• At a scene where multiple entities share responsibility (for example, a crosswalk across a freeway onramp where the state is responsible for the onramp, but a local entity is responsible for the sidewalk), were there gaps where neither agency considered the impact of the other agency’s designs and actions? Or was there conflict between overlapping designs?
Before the California Supreme Court handed down the unfortunate Hampton decision last year, another way to defeat the second element was to offer evidence that the employee approved a design that violated applicable standards. After Hampton, that approach is off the table. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 358.)
There may be a tiny, post-Hampton carve-out though. The court implied that, if the plaintiff offers affirmative evidence that the employee who approved the design departed from applicable standards but lacked authority to do so, this combination of facts may overcome immunity. It is unclear whether this would defeat the “discretionary approval” element or the “reasonableness” element, so plaintiffs should argue it defeats both.
Questions for discovery:
• Did someone with authority to do so approve the design?
• Did that person or entity have authority to approve the design?
• Did the design depart from applicable standards (ASHTO policies, for example)?
• If so, do internal written policies or deposition testimony establish that the person(s) approving the design were required to follow those guidelines and standards (i.e., that they lacked authority to do otherwise)?
Reasonableness: Did substantial evidence support the approved design?
Because the reasonableness element is decided by a judge rather than a jury, it is an unappealing hook on which to hang our hats. However, the Hampton court emphasized that questions regarding the wisdom of the approval, or the process leading to it, pertained to the reasonableness of the design. (Hampton, supra, 62 Cal.4th 340, at 349-350.) Citing a law revision commission report, Hampton noted that this reasonableness requirement is designed to protect against “arbitrary abuses of discretionary authority.” (Id. at 350.) So, like it or not, if approval was arbitrary, the plaintiff will need to engage this issue under the rubric of reasonableness.
There are only a couple cases in which courts have found inadequate evidence of reasonableness. The most useful is Arreola v. County of Monterey (2002) 99 Cal.App.4th 722. In that case, the state of California built an embankment without considering the possibility of flood water from the levee system. While the embankment was being designed, the Army Corps of Engineers published a report finding that a storm could produce almost twice as much water as they had previously anticipated. Three months later, the state engineers nevertheless approved the design without reconsidering it in light of this report. The court reasoned:
Since State’s engineers never took flooding into consideration, it is questionable whether the immunity applies at all. Presuming that it does, we find that State has not offered substantial evidence of reasonableness. (Id. at 759.)
Thus, in a case where some aspect of the design lacked any factual support, or any analysis, or altogether failed to take into account some feature of the public property, the design as to that feature is arbitrary. Alternatively, one might argue that no design exists as to that feature, and make a parallel argument under element one (causation). Either way, the legislative goal in enacting section 830.6 was to prevent juries from second-guessing the entity’s decisions. (Hampton at 352.) If the entity failed to make a decision (because it simply failed to consider something), immunity should not apply.
Do not let defendants get away with a mere showing that the design as a whole was based on some evidence of something. Break it down into subparts. If some feature of the design or scene was never considered, then decisions about that aspect were either arbitrary or were never made at all. If we argue that these were decisions poorly made, we lose. If we argue that these decisions were never made, we might win. Most arguments made here can (and should) also be pursued as undermining the other two elements of design immunity.
Questions for discovery:
• Did the person(s) who approved the design fail altogether to consider certain categories of people who would be affected (pedestrians, drivers, bicyclists, the disabled and elderly)?
• Did the person(s) who approved the design fail altogether to consider certain physical conditions (lighting, flooding, visibility, sight distance, the volume of traffic, etc.)? Were there any reports available that were utterly ignored?
• As to any aspect of the design, was there a total absence of analysis or factual support? Was a conclusion reached without any engineering study or other analysis? Were assumptions made? To spot areas that lacked support, request “all evidence that supported the determination that pedestrians would have adequate time to cross the street during the pedestrian countdown.”
• Does correspondence (internal and external) from the time of design approval reveal gaps in what was considered?
Did the public entity have notice of a dangerous change in physical conditions yet fail to act in a reasonable time? This is perhaps the most useful argument to avoid design immunity. It is for the jury to decide whether a design has become dangerous because of a change in physical conditions, whether the entity had notice of the condition, and whether the entity had reasonable time to carry out remedial work. (Cornette, supra, 26 Cal.4th 63, 72-80.)
Questions for discovery:
• What vehicle and pedestrian traffic volumes, speeds, and patterns were anticipated at the time of the design?
• Do traffic studies, traffic volume counts, pedestrian counts, and speed surveys show a substantial change in traffic patterns between the time of design approval and the time of the accident?
• Were there material design changes at the subject location (a widened street, an extra lane, new signage, a changed speed limit)?
• Were there material natural changes at the subject location (tree branches obstructing visibility, homes that grew up around the location)?
• Were there material changes nearby (new public parks, installation of signals at nearby intersections, new office complexes, public transportation facilities) that changed the character of, or traffic patterns at, the subject location?
• Do TASAS, SWITRS, accident reports, or the like show a change in accident frequency corresponding with the changed conditions?
• Do claims or complaints submitted to the agency show new concerns corresponding with the changed conditions?
• Do collision reports show a change in the type or severity of accidents at the location?
• Did correspondence since the design approval show knowledge of changed conditions?
• Were any reports issued after design approval to indicate changed conditions?
• At a scene where multiple entities share some responsibility (for example, a crosswalk across a freeway onramp where the state is responsible for the onramp, but a local entity is responsible for the sidewalk), did a change implemented by one entity create new risks that were never addressed by the other entity?
By thinking about these questions systematically, and always framing them in light of the factors courts will consider at summary judgment, we increase our odds of winning these cases.
Sara Peters is an associate attorney prosecuting complex and catastrophic personal injury cases at Walkup, Melodia, Kelly & Schoenberger. She coaches mock trial at Stanford Law School, where she received her J.D. in 2008, and is a contributing editor for The Rutter Group 2015 Claims & Defenses practice guide. She serves as Co-Director of Attorneys Bettering the Community, a local nonprofit, and as CLE Vice Chair of the BASF Barristers Litigation Section. Ms. Peters has been peer-nominated as a Northern California Super Lawyers Rising Star from 2013-2015.
2016 by the author.
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