Design Immunity Defense Gets Special Treatment on Summary Judgment

This may be one that is more for the lawyers than it is for the contractors or owners.

If you’ve ever filed a motion for summary judgment or summary adjudication you know the standard is clear. You’re going to lose if the court finds a disputed issue of material fact. In other words, since summary judgment or summary adjudication is such an extreme remedy – you win without having to go to trial after all –  the standard is pretty high. Thus, if there’s a dispute as to a material fact (was the light green or was it red?) it’s enough that the court will deny your motion.

That is, unless you’re seeking summary judgment or adjudication on a design immunity defense as the next case, Menges v. Department of Transportation, Case No. G057643 (December 24, 2020), reveals.

The Menges Case

On February 6, 2012, at approximately 10:40 a.m., Kevyn Menges was a passenger in a friend’s car heading home to San Clemente, California. It was daylight, the weather was clear and the pavement was dry. The car Menges was in was waiting at a stop light on Avenida Pico to make a left-hand turn onto the on-ramp to Interstate 5. When the light turned green and the car began the left turn, a tractor-trailer driven by Gerald Pesikca, broadsided them as he traveled down the off-ramp from I-5.

According to a witness driving behind the truck, he did not see any brake lights as the truck traveled down the quarter-mile off-ramp. Another witness said that as the truck approached the end of the off-ramp the truck swerved left, straddled a curb and sideswiped a vehicle stopped at the bottom of the off-ramp. As the truck entered the intersection it crashed through a light standard and broadsided the car carrying Menges. Another witness said that he didn’t hear any horns, down shifting, or any skidding or screeching from the truck.

Pesicka said that he had no recollection of the accident, that he was driving to Oceanside to pick up a load of cargo, and had no reason to exist the freeway at Avenida Pico. Pesicka drug and alcohol tests were negative. Pesicka suffered a stroke a day later, was hospitalized, and later died.

On May 12, 2012, Menges’ guardian ad litem filed suit against Pesicka and others and eventually named Caltrans. As to Caltrans, Menges asserted that her injuries were due to a dangerous condition on public property. Specifically, she contended that “confusing” and “deceiving” pavement striping, signage on I-5 at the top of the Avenida Pico off-ramp, and striping of the city street section at the bottom of the off-ramp, caused Pesicka to “mistakenly and unintentionally” exit I-5, leading to the accident.

In July 2018, Caltrans filed a motion for summary judgment based on the design immunity defense. It provided evidence that the last improvement at I-5 and Avenida Pico occurred on September 10, 2008 and that the project was built in compliance with Caltrans’ design plans approved for use in September 2005. In support of its motion, Caltrans submitted the declaration of Ronald Nelson, a traffic engineer, who opined that the design and construction was reasonable.

In response, Menges submitted declarations by two civil engineers, Brad Avrit and Edward Ruzak, who were critical of the design. Caltrans objected to both declarations. At the hearing, the trial court granted Caltrans’ motion for summary judgment finding that the design immunity defense applied because substantial evidence supported the reasonableness of the design.

Menges appealed.

The Appeal

In a split decision, the 4th District Court of Appeal upheld the trial court decision. Explaining that a public entity may be liable for personal injuries caused by “dangerous conditions” on its property, the Court explained that a public entity may avoid liability through the affirmative defense of design immunity, which requires that the public entity establish three elements:

  1. A causal relationship between the plan or design and the accident;
  2. Discretionary approval of the plan or design prior to construction; and
  3. Substantial evidence supporting the reasonableness of the plan or design.

“Substantial evidence,” explained the Court of Appeal, is “evidence of solid value and which reasonably inspires confidence.” “[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The state does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.” “We are not concerned with whether the evidence of reasonableness is disputed; the statute provides immunity when there is a substantial evidence of reasonableness, even if contradicted.” Further, “[t]hat a plaintiff’s expert may disagree does not create a triable issue of fact.”

This may seem odd to most practitioners, but as the Court of Appeal explained, “a case involving design immunity does not function as a typical summary judgment case would”:

The court’s role in evaluating the third element of the design immunity is not to provide a de novo interpretation of the design, but instead to decide whether there is “any substantial evidence” supporting its reasonableness.  “Any substantial evidence” to establish this third element of the immunity may consist of the following: Discretionary approval of the design plans themselves; the expert opinion of a civil engineer as to the reasonableness of the design; or evidence the design or plan complies with prevailing professional standards. “A mere conflict in the testimony of expert witnesses provides no justification for the matter to go to a lay jury who will then second-guess the judgment of skilled public officials.

So, there you have it. The design immunity defense gets special treatment on summary judgment. And disputes between experts, in and of themselves, won’t create a triable issue of fact. Rather, when it comes to public works projects, because design and engineering is not something that should be left in the hands of a lay jury, let alone a lay judge, a public entity asserting the design immunity defense will prevail so long as substantial evidence supports the reasonableness of its plan or design.

And, here, explained the Court of Appeal, “Menges, ignoring the proper standard, asks us to consider evidence of how the off-ramp looked and testimony from her expert witnesses to determine whether the design was reasonable. However, given our standard of review in this specific scenario, we are unable to interpret that evidence de novo. Indeed, . . . Caltrans provided substantial evidence to support discretionary approval of the design plans, an expert opinion as to the reasonableness of the design, and evidence the design complied with California’s approved standards.”

The Dissent

However, as discussed, this was not a unanimous decision. Justice Thompson of the 4th District dissented arguing:

Design immunity is only a defense if the improvements are constructed in substantial conformity with the approved design. If Caltrans designed an off-ramp but constructed a wall instead, the reasonableness of the off-ramp design would have no bearing on its liability if someone drives into the wall.

In this case, Menges contends the freeway off-ramp was not constructed in substantial conformity with the approved design. The parties offered conflicting expert opinions on this point that show triable issues of material fact which cannot be resolved by summary judgment. So a trial is required to determine if design immunity applies.

Justice Thompson gave three reasons why he felt that the majority’s decision was wrong. First, he contended that the majority erroneously sustained Caltrans’ objections to Menges’ expert declarations, explaining that the trial court did not rule on the objections and therefore the trial court should have been found to have overruled the objections, and that the opinions themselves which identified three specific departures from the approved design should have been admissible.

Second, he contended that the majority, by focusing on whether substantial evidence supported the conclusion that the off-ramp was constructed in substantial conformity with the approved design, got it wrong. According to Justice Thompson, the “substantial evidence” standard only applies to the “reasonableness of the plan or design,” not whether the as-constructed off-ramp was constructed in substantial conformity the approved design.

And, finally, because Menges’ experts disagreed with Caltrans’ expert that the off-ramp was built in accordance with the approved design, this, according to Justice Thompson, was enough to create a triable issue of material fact requiring the trial court to deny Caltrans’ summary judgment motion.


I’m not sure if I agree with the majority or the dissent on this one. However, what the case does make clear, is that while the design immunity defense might get special treatment on summary judgment, and that the court does not provide de novo interpretation of designs since this is an area for the experts not lay people (whether judge or jury), determining whether substantial evidence supports the reasonableness of the plan or design (whether you admit it or not) does in fact require de novo review since someone needs to make a judgment call as to whether the evidence was substantial or not.


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