Design Immunity Defense Under Government code § 830.6: Obstacles
to avoid in pleading and Presenting your case By Shahram A. Shayesteh

The purpose of the section 830.6 design immunity defense?is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.? (Cameron v. State (1972) 7 Cal.3d 318, 326.) This reflects a legislative intent to insulate discretionary planning and design decisions by responsible public officials from review in tort litigation. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939.) As the Supreme Court noted in Baldwin v. State (1972) 6 C3d 424, 433, the expressed legislative intent of section 830.6 was to provide an immunity similar to the judicially created immunity recognized by New York courts. [2] (See Law Revision Commission Comment to Government Code § 830.6.) Thus, the design immunity defense is available not only in actions under the Tort Claims Act on the basis of dangerous condition, but also when a plaintiff sues on the theory of nuisance under Civil Code § 3479. (Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1164 n.9.) This immunity has also been held to be constitutional. (Thomson v City of Glendale (1976) 61 Cal.App.3d 378 [no violation of equal protection].) [3]

Under Government Code § 830.6, a public entity is not liable for injuries caused by a dangerous condition of public property if it establishes all of the following three elements:

(1) The plan or design caused the accident;

(2) Approval of the plan or design before construction was discretionary; and

(3) Substantial evidence supports the reasonableness of the plan or design.

(Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69; Alvarez v. State (1999) 79 Cal.App.4th 720, 727; Dole Citrus v. State (1997) 60 Cal.App.4th 486, 490; Uyeno v. State (1991) 234 Cal.App.3d 1371, 1376.)

THE FIRST ELEMENT: CAUSATION
The first element of the design immunity defense requires a showing that the plaintiff?s injuries were caused by a feature inherent in the approved plan or design, as opposed to some other cause. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940). This element is ordinarily established by the allegations in the complaint that the injury occurred as a result of the plan or design. (Id., at p. 941; see also Fuller v. Department of Trasp. (2001) 89 Cal.App.4th 1109, 1114 [holding that defendant public entity is entitled to rely on plaintiffs? pleadings to establish necessary element of causation].)

Section 830.6 immunity, however, only applies to accidents caused by design decisions and does not immunize decisions that were not made. For example:

· In Cameron v. State (1972) 7 Cal.3d 318, 325, design immunity did not apply because the highway design plans did not specify the superelevation (otherwise known as ?banking?) of the highway, nor was there any evidence that the uneven superelevation was a result of an approved design or plan.

· In De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 748, design immunity did not apply because there was no showing that the installation and position of a stop sign, obscured by a tree and shrubbery, was part of an approved design or plan.

· In Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 574, design immunity did not apply because a one-page surface drawing did not show the requisite details of the road design and there was no showing that several material changes made during construction were properly approved as part of the design or plan. In addition, the city did not show that the damages were caused solely by a design defect as distinguished from poor maintenance and clogging of the drainage system.

Thus, if the injury-producing feature was not a part of the discretionarily approved design, the immunity defense may be defeated. (Grenier v. city of Irwindale (1997) 57 Cal.App.4th 931, 941 n.7.)

On the other hand, when the injury-producing feature or the absence of a safety feature is shown to be a part of the design or plan, the immunity is a defense. One court rejected plaintiff?s argument that the absence of a median barrier on a freeway was not a design choice. The state presented substantial evidence that no barrier was required by state standards when the plan was approved. (Higgins v. State (1997) 54 Cal.App.4th 177, 185.) Likewise, it was held that the omission of a median barrier on a bridge was a design decision. (Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1158.) Another court held that the absence of a median barrier was a design decision, and the court rejected plaintiff?s further argument that the state?s evidence must show what factors were considered in deciding that a barrier was not appropriate. (Alvarez v. State (1999) 79 Cal.App.4th 720, 734.) Finally, relying on Cameron v. State (1972) 7 Cal.3d 318, and Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, a plaintiff argued that the omission of a median barrier on a freeway was not a design choice, because the design called for a 46-foot median without a barrier, but the highway was built with a 45-foot 5-inch median, 7 inches short of what the design called for. The court distinguished Cameron and Mozzetti and held that the minor deviation was not significant and the highway as built substantially conformed to the plans. (Wyckoff v. State (2001) 90 Cal.App.4th 45, 52.)

Section 830.6 immunity does not apply to injuries caused during construction of an improvement. In other words, the statute immunizes ?the plan or design of the finished product and not the plan or design for constructing the improvement.? (Winig v. State (1995) 37 Cal.App.4th 1772, 1777.)

THE SECOND ELEMENT: APPROVAL WAS DISCRETIONARY
The second element requires the defendant to establish either that the plan or design was approved before construction by the ?the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval;? or that the ?plan or design is prepared in conformity with standards previously so approved.? (Govt. Code § 830.6.) Even an informal plan or drawing may suffice because there is no requirement that the design be expressed in any particular form. (Thomas v. City of Glendale (1976) 61 Cal.App.3d 378.) The authorized approval need not be in writing, but may be oral. (Bane v. State (1989) 208 Cal.App.3d 860.)

A failure to prove this element makes the immunity inapplicable. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565.) In Mozzetti, the court held that the defendant failed to prove design immunity because the injury-causing features of road improvement design were not included in the partial sketch approved by the city council, but were added later without resubmission for council approval. (Id., at p. 575; see also Johnston v. County of Yolo (1969) 274 Cal.App.2d 46 [defendant?s failure to approve that county road commissioner had approved plan or design for sharp double curve in highway].)

To ascertain which board or officer has discretionary approval authority under section 830.6, courts must look to both law delineating the distribution of a public entity?s powers (Johnston v. County of Yolo (1969) 274 Cal.App.2d 46.) and to applicable administrative measures (Uyeno v. State (1991) 234 Cal.App.3d 1371.) In Thompson v. City of Glendale (1976) 61 Cal.App.3d 378, design immunity applied where the trial court found that the city?s maintenance superintendent had properly exercised design approval authority because he had been delegated by the director of public works pursuant to the city charter. The decision to repose such authority in the superintendent was not undermined by the fact that the superintendent was neither a licensed engineer nor an architect, because no statutory requirement to that effect existed. The court also noted that there is no requirement under section 830.6 that the design be prepared by a public employee, because it is standard practice to have private technicians prepare construction plans and designs for public works. (Id., at p. 385.)

In contrast to Thomson, the court in Levin v. State (1983) 146 Cal.App.3d 410, held that the design immunity defense was not available in an action involving a death caused by lack of median barrier and an exterior guardrail, when the engineer who approved the design was a consultant without authority to render such approval. Similarly, in Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, the court held the design immunity was not available as a defense to injuries caused by a sharp ?S? curve in a county road. The court concluded that design approval authority was vested by law in the county road commissioner, who was required to be a registered engineer. The record showed that the road commissioner had actually regarded the design in question as inconsistent with professional standards, but that he had directed construction to proceed anyway under orders from a county supervisor. Under these circumstances, the design immunity was not available, because the evidence was not sufficient to establish official design approval as an exercise of professional engineering judgment by the commissioner. (Id., at p. 54.)

When a public entity cannot establish discretionary approval of a plan or design before construction, it can still show that the construction was in conformity with standards previously approved. (Higgins v. State (1997) 54 Cal.App.4th 177, 186 [freeway constructed without median barrier was in conformity with existing state standards that do not require barrier I medians wider than 45 feet].) [4]

THE THIRD ELEMENT: SUBSTANTIAL EVIDENCE SUPPORTS THE PLAN OR DESIGN

The third element requires that the defendant present ?any substantial evidence,? sufficient to satisfy the trial or appellate court as a matter of law, that the plan or design, or the standards under which the plan or design was prepared, could have been adopted by ?a reasonable public employee? or approved by ?a reasonable legislative body or other body or employee.? (See Higgins v. State (1997) 54 Cal.App.4th 177, 186; see also Uyeno v. State (1991) 234 Cal.App.3d 1371.) In Fuller v. Department of Transp. (2001) 89 Cal.App.4th 1109, the plaintiff claimed that the speed limit on a highway was not part of the plan or design that could reasonably be approved because speed has ?nothing to do with the construction of, or improvements to, public property.? In rejecting this argument, the court reasoned that highways are intended to carry vehicular traffic, the movement of which contemplates safe and efficient speeds. Therefore, the setting of a speed limit is subject to the reasonable-approval element of the section 830.6 design immunity analysis. (Id., at p. 1114.)

To determine whether there is substantial evidence that the plan or design was reasonably approved or adopted, the courts examine whether the evidence ?reasonably inspires confidence? and ?is of solid value.? (Muffett v. Royster (1983) 147 Cal.App.3d 289, 307; Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 798. Ordinarily, the opinion of a civil engineer about the reasonableness of a design constitutes ?any? substantial evidence sufficient to support a design immunity defense. (Fuller v. Department of Transp. (2001) 89 Cal.App.4th 1109, 1118; Higgins v State (1997) 54 Cal.App.4th 177, 187; Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 941; Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1162.)

In determining reasonableness, the court can also consider evidence about prevailing professional standards of design and safety. In Moritz v. City of Santa Clara (1970) 8 Cal.App.3d 573, summary judgment for the defendant city was sustained on the basis of evidence showing that the plan for marking and posting of signs relating to a pedestrian crosswalk was in full conformity with the Vehicle Code and with specifications promulgated by the State Division of Highways. According to the court, such conformity met the reasonableness test for the design immunity. Id., at p. 577-578. [5] Conversely, evidence demonstrating that the design or plan of the approved improvement failed to satisfy accepted engineering standards and thereby created a substantial but avoidable risk of injury has been recognized as sufficient to support the conclusion that the approval of the plan or design was not reasonable. (Levin v. State (1983) 146 Cal.App.3d 410 [guardrail standards for highway were disregarded].)

The accident history of the improvement may also bear on the reasonableness of the approval of a plan or design. For example, design immunity was established on the defendant?s motion for summary judgment by evidence showing that, in the four and a half years following construction and before the plaintiff?s injury, only one accident per 685,000 cars had occurred at the intersection in question. (Callahan v. City & County of San Francisco (1971) 15 Cal.App.3d 374; see also McKray v. State (1977) 74 Cal.App.2d 59 [evidence of lack of accidents at site demonstrated that improvement not dangerous as matter of law; court found no need to consider design immunity].)

Since Government Code § 830.6 has explicitly conferred on the courts the responsibility of assessing whether there is substantial evidence supporting the reasonableness of the adoption or approval decision, cases may arise in which the public entity's decision is not supported by substantial evidence. To date, however, there are no reported decisions that fully articulate specific criteria for determining that a design approval decision is ?unreasonable.? Rather, several cases have suggested individual elements that may influence the courts. For example, in Levin v. City of Los Angeles (1977) 68 Cal.App.3d 481, the court considered whether the hazard to foreseeable users posed by the approved plan or design would be ?obvious? to ?any reasonable person.? There, a double lane, paved road abruptly changed into a single lane that had no transitional tapering, was narrower in width, and lacked adequate illumination and warning signs was held to be an obvious trap for motorcyclists (such as the plaintiff) traveling at night and, therefore, was an unreasonable design to which the design immunity could not be applied. The court also noted that it was ?patently unreasonable [not to taper the roadway] in light of the $200 to $300 cost to do so.? (Id., at p. 489.)

Additionally, another element to consider in assessing reasonableness under the design immunity defense may be the comparative degree of foreseeable danger balanced against the burden of an alternative design that would reduce or eliminate the danger. In Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, an unfenced pond designed primarily for aesthetic purposes had been constructed in a public park frequented by children. The pond incorporated in its approved design a deep sump hole with sharply sloping sides located in the middle of the pond and intended as a sanctuary for fish during hot summer weather. Plaintiff's four-year-old son drowned in this hole. An expert in environmental planning testified that the design was reasonable in light of its aesthetic purpose and this evidence was accepted by the trial court as sufficiently ?substantial? to support the design immunity. On appeal, the court reversed this decision and noted that the pond was often used by children for fishing and wading and, therefore, the hidden hole in the pond constituted a trap. The court of appeal also found that the expert testimony presented by defendant was insufficient as a matter of law to satisfy the ?substantial evidence of reasonableness? test of section 830.6. (Id., at p. 799.)

GOVERNMENT CODE § 830.6 DEFENSE IS DETERMINED AS A MATTER OF LAW

Section 830.6 provides in specific terms that the element of reasonableness of approval is for the trial or appellate court to determine. (Govt. Code § 830.6 [?. . . if the trial or appellate court determines that there is any substantial evidence. . .?].) Although the statue is silent on whether the other elements are for the court or jury to decide, courts have treated all three elements of the defense as issues for the court to determine as a matter of law. (Wyckoff v. State (2001) 90 Cal.App.4th 45, 108; Fuller v. Department of Transp. (2001) 89 Cal.App.4th 1109, 1113). [6]

Some decisions have suggested that the ?substantial evidence? test is sufficient to establish the first two elements of the defense, causation and discretionary approval. (See, e.g., Higgins v. State (1997) 54 Cal.App.4th 177, 185.) But in Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, the court emphasized:

Design immunity is an affirmative defense often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law. [Citation] The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation omitted] The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence. [Citation] We are not concerned with whether the evidence of reasonableness is undisputed; the statue provides immunity when there is substantial evidence of reasonableness, even if contradicted. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 937.)

GOVERNMENT CODE § 830.6 DESIGN IMMUNITY CAN BE LOST

Before section 830.6 was amended in 1979, the design immunity defense could be lost if, after the original improvement had been completed according to a reasonably approved plan, the improvement functioned under changed physical circumstances as a dangerous condition of which the public entity had notice. (Baldwin v. State (1972) 6 Cal.3d 424 [design immunity not applicable as matter of law to high-speed highway without left-turn lane or traffic signal at heavily used intersection in light of history of repeated accidents].)

The legislature responded to Baldwin in 1979 by amending section 830.6 to specify the circumstances under which a public entity retains its design immunity despite having received notice that the plan or design has been dangerous because of a change in physical conditions. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 71.) In Cornette, the Supreme Court held that under Baldwin and section 830.6 as amended in 1979, a plaintiff must establish three elements to assert that the design immunity defense has been lost:

(1) The plan or design has become dangerous because of a change in physical conditions;

(2) The public entity had actual or constructive notice of the changed condition; and

(3) The public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan; or the public entity, unable to remedy the condition because of practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.

(Id., at p. 72.) Cornette also held that plaintiff is entitled to a jury trial of these three issues where triable issues of material fact are present. (Id., at p. 67.)

No case has clearly defined what constitutes a change in physical conditions. The facts in Baldwin demonstrated an enormous increase in traffic in the 30 years after the highway was constructed due in part to major development of lands that were served by the highway. (Baldwin v State (1972) 6 C3d 424, 429.) However, Higgins v State, (1997) 54 Cal.App.4th 177, did not regard mere increased traffic as a changed condition when the increase was not sufficient to require installing a median barrier under the state?s standards. (Id., at p. 188; see also Wyckoff v. State (2001) 90 Cal.App.4th 45, 59 [increased traffic is not a changed condition when it does not require installation of a median barrier and does not exceed the design capacity of the freeway].)

Most of the cases have focused on what is not a changed condition. Mere passage of time is not sufficient to constitute a change in physical conditions. (Cameron v. State (1972) 7 Cal.3d 318, 326 n.10.) A change in the standards of a public entity is also not a changed condition. (Dole Citrus v. State (1997) 60 Cal.App.4th 486, 493; see also Alvarez v. State (1999) 79 Cal.App.4th 720, 738 [design immunity is not lost owing to changed conditions merely because state had installed medians on other parts of freeway and had determined and recommended that a median barrier be installed at site of accident].) [7]

Even assuming plaintiff shows the existence of a changed physical condition, cases have required a strong showing that this has resulted in a dangerous condition that the state is aware of. (Alvarez v. State (1999) 79 Cal.App.4th 720, 737 (seven prior similar accidents in six years did not meet state?s accident warrants). [8]

CONCLUSION

Although the obstacles created by the design immunity defense under Government Code § 830.6 are somewhat daunting, they can be overcome with careful pleading, keeping in mind the three elements of the defense, and artful presentation of the case, by focusing on the second and third elements, discretionary approval of the design and substantial evidence of reasonableness. Since it is the defendant public entity?s burden to plead and prove this defense (Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1157.), in most cases, a plaintiff can prevail by presenting sufficient evidence that the injury-causing feature was not in the defendant?s design or plans, or that the feature was inherently unreasonable, which can be established through expert testimony or the accident history of that feature.

If all else fails, a plaintiff can argue that design immunity has been lost because of a dangerous change in the physical conditions of the feature, but this legal theory is, at best, a long shot given the high bar set by the courts.

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[1] Government Code § 830.6 states in pertinent part: ?Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement 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 determines 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. . . .?

[2] See, e.g., Weiss v Fote (1960) 200 N.Y.S.2d 409, 413 (immunity for traffic signal plan at intersection that resulted from extensive study by city agency; court held that to allow jury to pass on reasonableness of plan would ?place in inexpert hands what the Legislature has seen fit to entrust to experts?).

[3] In some situations, despite the applicability of section 830.6, a public entity may be held liable for property damage sustained as the result of a planned public improvement that incorporates features that unnecessarily expose private property to a risk of harm. Such liability would be imposed by constitutional compulsion in the form of inverse condemnation rather than tort liability. (Baldwin v State (1972) 6 Cal.3d 424; Mozzetti v City of Brisbane (1977) 67 Cal.App.3d 565, 575 n3,.)

[4] See also Uyeno v. State (1991) 234 Cal.App.3d 1371 (traffic signal timing was not part of plans but set in conformity with previously approved standards); Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007 (although a highway limit line was painted without plan, it was in conformity with previously approved standards).

[5] See also Uyeno v State (1991) 234 Cal.App.3d 1371 (plan adopted for timing of traffic signals at intersection was developed in accordance with prevailing standards; immunity applied); Mozzetti v City of Brisbane (1977) 67 CA3d 565, 136 CR 751 (defective drainage plan in conjunction with street improvement); Thomson v City of Glendale (1976) 61 CA3d 378, 132 CR 52 (design met building code standards).

[6] See also Alvarez v State (1999) 79 Cal.App.4th 720, 727 (?[w]hether each element of design immunity exists is a question of law?); Mozzetti v City of Brisbane (1977) 67 CA3d 565, 572, 136 CR 751 (issues of advance approval as well as reasonableness of approval constitute legal questions to be determined by court rather than jury); Johnston v County of Yolo (1969) 274 CA2d 46, 56, 79, CR 33 (trial court's refusal to give jury instructions on immunity held proper)

[7] Similarly, technological advances in the development of movable median barriers are not sufficient changed conditions to uphold a loss of design immunity. (Sutton v Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149, 1162.) Evidence of an increase in the speed limit from 55 to 65 miles per hour is also not sufficient to constitute a changed condition because traffic speed is not a factor in the state?s standards for installing median barriers nor is there any conclusive evidence that higher speed limits result in higher cross-median accident rates. (Wyckoff v. State (2001) 90 Cal.App.4th 45, 60.)

[8] See also Compton v. City of Santee (1993) 12 Cal.App.4th 591, 599 (no triable issue of fact as to dangerous condition where four similar accidents occurred at the same intersection because plaintiff failed to present evidence that these accidents were ?statistically aberrant, i.e. unusual or excessive in some respect.?); Higgins v. State (1997) 54 Cal.App.4th 177 (three prior accidents in four years insufficient to show the accident rate was statistically aberrant); Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931 (one prior accident in seven years insufficient); Dole Citrus v. State (1997) 60 Cal.App.4th 486 (one similar incident in two years insufficient); Sutton v. Golden Gate Bridge, Highway & Transp. Dist. (1998) 68 Cal.App.4th 1149 (accident rate actually declined after changed conditions); and Wyckoff v. State (2001) 90 Cal.App.4th 45 (nine prior accidents in two years, which number did not meet the state's accident warrants).