Readers of this blog are familiar with the concept of the design immunity defense.
Codified at Government Code section 830.6, it provides in pertinent that a public entity is not liable for an injury caused by a plan or design of a public improvement where the plan or design has been “approved in advance . . . by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved” if the trial or appellate court finds that there “is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”
In the next case, Tansavatdi v. City of Rancho Palos Verdes, Case No. B293670 (January 29, 2021), the 2nd District Court of Appeal examined whether the design immunity defense also serves as a defense to a claim that a public entity has a duty to warn of a dangerous condition on public property.
The Tansavatdi Case
In March 2016, Betty Tansavatdi’s son was killed by a semi-trailer while waiting at a stoplight on his bicycle at the corner of Hawthorne Boulevard and Dupre Drive in Rancho Palos Verdes, California. Tansavatdi’s son had intended to go straight through the intersection on Hawthorne Boulevard while the semi-trailer had intended to turn right onto Vallon Drive.
The stretch of Hawthorne Boulevard leading to Dupre Drive did not have a bicycle lane although other stretches of Hawthorne Boulevard had bicycle lanes.
In March 2017, Tansavatdi’s mother filed suit against the City of Rancho Palo Verdes alleging a single cause of action for dangerous conditions on public property. Tansavatdi alleged that the City had created a dangerous condition and failed to warn of a dangerous condition.
The City later filed a motion for summary judgment arguing that it was shielded from liability under the design immunity defense of Government Code section 830.6. The City also claimed that the design immunity defense shielded it from liability from Tansavatdi’s claim that the City failed to warn her son of a dangerous condition through the placement of signs or other warnings.
In support of its motion, the City submitted the declaration of Nicole Jules the former Deputy Director of Public Works and Supervising Civil Engineer for the City. Jules had testified that there had never been a bicycle lane at the stretch of Hawthorne Boulevard leading to Dupre Drive, although other sections of Hawthorne Boulevard had bicycle lanes, because the City wanted to retain on-street parking for the benefit of an adjacent park. In her declaration, Jules stated that the stretch of Hawthorne Boulevard leading to Dupre Drive met or exceeded all applicable government standards and was reasonably approved.
The City also submitted the declaration of Rock Miller a traffic engineering expert. Miller stated that plans for the stretch of Hawthorne Boulevard leading to Dupre Drive were reasonable and in full compliance with applicable guidelines. He also stated that available collision data at the intersection showed that the accident was the only serious accident from 2006 to 2017 and had an “extremely good” collision record.
In opposition, Tansavatdi submitted the declaration of Edward Ruzak a traffic engineering expert who stated that the intersection constituted a dangerous condition due to the absence of a bicycle lane that would direct riders to the left of the right-turn lane. He also stated that Hawthorne Boulevard was heavily used by bicyclists, that the risk of serious collisions was significant, including a steep downgrade in the stretch where the accident occurred, and he faulted the City for failing to provide “warnings or positive guidance regarding the proper and safe use of [the road]” in the absence of a bicycle lane.
The trial court granted the City’s motion for summary judgment concluding that the City had shown entitlement to design immunity as a matter of law. The trial court did not address Transavatdi’s claim that, irrespective of whether the City established design immunity, the City was liable for failing to warn of a dangerous condition.
On appeal, the 2nd District Court of Appeal explained that while a public entity may be liable for injuries caused by a dangerous condition on its property, Government Code section 830.6 provides that a public entity may avoid liability by raising the defense of design immunity, which requires the public entity to show: (1) a causal relationship between a 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.
The Court of Appeal further explained that the first two elements – causation and discretionary approval – involve factual questions to be resolved by a jury unless the facts are undisputed. However, the third element explained the Court – the existence of substantial evidence supporting the reasonableness of the plan or design – is a legal matter for the court to decide.
The Court of Appeal found that the City had carried its burden as to each of the three elements. As to causation, the Court held that the plans for Hawthorne Boulevard, while it included markings for “BIKE LANE & ARROW” along portions of Hawthorne Boulevard, it included no such markings for the area where the accident occurred, and that Transavatdi had failed to show that the lack of such markings where the accident occurred was an inadvertent omission.
As to discretionary approval, the Court of Appeals held that the City had carried its burden. A private engineering firm had prepared the plans and submitted them for approval to the City and the City did in fact approve the plans submitted.
Finally, as to substantial evidence supporting the reasonableness of the plan or design, the Court of Appeal explained that “[g]enerally, a civil engineer’s opinion regarding reasonableness is substantial evidence to satisfy this element,” and that here, Jules and Miller, both traffic engineers, opined that the plans were reasonable and in full compliance with applicable guidelines.
However, the Court of Appeal held that it was error for the Court not to consider Transavatdi’s argument that, irrespective of whether the City established design immunity, the City was liable for failing to warn of a dangerous condition. Citing Cameron v. State of California (1972) 7 Cal.3d 318, 327, the Court of Appeal explained that the California Supreme Court has held “that a public entity may be held liable for failure to warn of a concealed dangerous condition even if that dangerous condition was covered by design immunity”:
Thus, under Cameron, the city’s entitlement to design immunity for its failure to include a bicycle lane at the site of Jonathan’s accident does not, as a matter of law, necessarily preclude its liability under a theory of failure to warn. Because it appears the trial court did not consider appellant’s failure to warn theory, we deem it advisable to allow the trial court to consider the failure to warn theory in the first instance.
So there you have it. Design immunity does not in and of itself shield a public entity from a claim that the public entity failed to warn of a concealed dangerous condition, even if that dangerous condition was covered by design immunity.