Hampton v. Cty. of San Diego ( 2013 )

Filed 7/26/13
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RANDALL KEITH HAMPTON et al., D061509
Plaintiffs and Appellants,
v. (Super. Ct. No.
37-2010-00101299-CU-PA-CTL)
COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Timothy
B. Taylor, Judge. Affirmed.
Thorsnes Bartolotta McGuire, John F. McGuire, Ian C. Fusselman and Benjamin I.
Siminou for Plaintiffs and Appellants.
Thomas E. Montgomery, County Counsel, and Christopher J. Welsh, Deputy
County Counsel, for Defendant and Respondent.
I.
INTRODUCTION
In November 2009, a vehicle that Randall Keith Hampton was driving collided
with another vehicle at an intersection in Valley Center. Hampton and his wife sued the
driver of the other vehicle as well as the County of San Diego (County).1 The Hamptons
brought claims against the County for dangerous condition of public property (Gov.
Code, § 835 et seq.)2 (fourth cause of action) and loss of consortium (third cause of
action). The County moved for summary judgment on the ground that the Hamptons'
claims were barred by the affirmative defense of design immunity. The trial court
granted the County's motion. On appeal, the Hamptons claim that the court erred in
granting the County summary judgment. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Hamptons' complaint
In their cause of action claiming dangerous condition of public property, the
Hamptons alleged that the County had duties to "properly and safely plan, design, build,
construct, operate, manage, maintain, direct, control, sign and supervise the roadways at
the intersection of Cole Grade Road and Miller Road in the County of San Diego," and
that the County breached these duties by "providing . . . inadequate sight distance for
1 The County is the only respondent in this appeal.
2 Unless otherwise specified, all subsequent statutory references are to the
Government Code.
2
vehicular traffic approaching Miller Road from Cole Grade Road as well as for traffic
pulling out from Miller Road onto Cole Grade Road . . . creating a defective and
dangerous condition for motorists and traffic." The Hamptons further alleged:
"As a proximate result, Defendant ROBERT PAUL CULLEN [the
other driver involved in the accident] was unable to see the plaintiff
as the plaintiff pulled out from Miller Road onto Cole Grade Road
and the plaintiff RANDALL KEITH HAMPTON was unable to see
Defendant ROBERT PAUL CULLEN as defendant approached this
intersection while driving on Cole Grade Road[,] causing their
vehicles to collide at this intersection. As a proximate result of
Defendants' conduct, Plaintiff sustained the injuries and damages as
herein alleged."
In a loss of consortium cause of action, the Hamptons alleged that Randall Keith
Hampton had been unable to perform "necessary duties as a husband and the work and
services usually performed in the support . . . of the family," due to the County's conduct.
B. The County's motion for summary judgment
1. The County's motion
The County filed a motion for summary judgment and/or adjudication on the
ground that the affirmative defense of design immunity applied to bar the Hamptons'
claims against the County. In a supporting brief, the County noted that in order to
establish the defense of design immunity, a public entity is required to 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.
3
The County contended that the causal connection element was met based on the
Hamptons' allegation that the intersection at which the collision occurred constituted a
dangerous condition. With respect to the discretionary approval element, the County
stated that the County had approved plans for improvements to the intersection in 1995,
prior to the construction of those improvements in 1998. Finally, the County argued that
the declaration of Robert Goralka, a licensed engineer, demonstrated the reasonableness
of the plans for the intersection. The County also maintained that the Hamptons would
be unable to demonstrate changed conditions resulting in a loss of design immunity,
arguing that the Goralka declaration "establishes that the physical configuration of the
intersection was the same when this accident occurred as it was in 1998 when the
improvement project was completed."
The County supported its motion with two "Road Review[s]"3 pertaining to the
intersection, engineering documents entitled "Plans for Construction of Cole
Grade/Miller Road Interim Intersection Improvements [(Plans)]," and Goralka's
declaration, among other items.
In his declaration, Goralka stated that he is the County's traffic engineer and that
his current duties involved managing various aspects of traffic operations on County
roads. Goralka further stated that a 1989 Road Review noted that the sight distance from
Miller Road looking south on Cole Grade Road was less than desirable due to a "hump"
3 The Road Reviews were generated by the County's Department of Public Works
and identified various traffic conditions near the intersection and offered
recommendations for improving such conditions.
4
in Cole Grade Road. The Road Review recommended lowering the crest on Cole Grade
Road south of the Miller Road intersection to obtain additional sight distance at the
intersection.
Goralka stated that he had reviewed the Plans and noted the following with respect
to their approval:
"The[] [P]lans consist of road cross-section diagrams, profiles, and
striping plans. . . . Prior to actual construction[,] the [Plans] were, on
March 3, 1995[,] signed by David Solomon, a licensed civil engineer
and traffic engineer who served as Deputy County Engineer and was
in charge of the County . . . Design Engineering Section. As the
person in charge of the County's Design Engineering Section, he had
been delegated by the County Board of Supervisors, through the
Director of the Department of Public Works, discretion and authority
to approve plans such as [the Plans]. After the project was
completed, 'as built' plans were approved and signed by John
Bidwell, a licensed civil engineer who served as Senior Civil
Engineer of the County's Design Engineering Section on April 13,
1998."
Goralka described the purpose of the Plans as follows:
"The [Plans] called for the lowering of the crest on Cole Grade
Road, just south of the Miller Road intersection. The effect of
lowering the crest is to improve intersection sight distance for the
users of westbound Miller Road who look to view northbound traffic
on Cole Grade Road as they are preparing to enter the intersection.
The 'as-built' plans confirm that the crest of Cole Grade Road was
lowered by several feet. The plans called for widening of both Cole
Grade and Miller Roads, at their intersection to accommodate a left
turn pocket on both northbound and southbound Cole Grade Road
for vehicles turning west, and east respectively onto Miller Road.
The as-built plans confirm that this feature of the project was
constructed."
With respect to the issue of sight distance at the intersection in the wake of the
improvements, Goralka stated the following:
5
"I have reviewed the [1999 Road Review] regarding Cole Grade
Road. . . . In this Road Review, which is after the intersection
improvement project, the reviewer notes that sight distance for
westbound traffic is not adequate from 10 feet behind the limit line
on Miller Road at the intersection with Cole Grade Road. This is a
measurement typically used in designing new roads, and it does not
mean that the County failed to provide reasonable sight distance for
existing, previously constructed roads such as the intersection of
Miller Road and Cole Grade Road. My usual manner of gauging
operational sight distance from a side street at an intersection such as
this, and the manner I have usually seen used by those working for
the County, is to measure back from the prolongation of the painted
edge of [the] lane line, not the limit line. In this instance, the edge of
the lane line is several feet in front of the limit line. As a practical
matter, a driver on westbound Miller Road who creeps forward from
the limit line but has not yet crossed into the oncoming travel lane is
able to gain more sight distance to the left, looking for traffic on
northbound Cole Grade Road. This results in 'operational' sight
distance."
Goralka also stated that, in his opinion, the Plans are reasonable.
"The [Plans] are reasonable. The configuration of the intersection
shown in the plans provides adequate operational sight distance for a
driver who creeps forward from the limit line. Having viewed the
site in person, I can say that the operational sight distance provided
between westbound Miller Road and northbound Cole Grade Road is
adequate. The plans did not achieve a more desirable amount of
sight distance sought when a new intersection is being designed
from scratch in an open area. But the project did achieve operational
sight distance, which is a reasonable improvement when, as here,
there are design constraints including roadways already in place that
are near the crest of a hill and an embankment with existing
utilities."
2. The Hamptons' opposition
The Hamptons filed an opposition in which they argued that the County was not
entitled to summary judgment based on the affirmative defense of design immunity
because the County failed to establish as a matter of law the "discretionary approval" and
6
"reasonable design" elements of the defense.4 The Hamptons based their opposition
primarily on the contention that the Plans disregarded the County's "own methodology
for measuring sight distance." In support of this contention, the Hamptons stated that the
Plans failed to provide either adequate "design sight distance" or "operational sight
distance."5
The Hamptons noted that although the parties agreed that the County's design sight
distance standard had not been met,6 the parties disputed whether the Plans achieved
sufficient operational sight distance under County guidelines. The Hamptons maintained
that in stating that operational sight distance at the intersection was adequate, the
County's expert, Goralka, "fail[ed] to follow the County['s] protocol for measuring sight
distance." The Hamptons argued that Goralka failed to base his calculation of
operational sight distance on measurements derived "from the edge of the pavement" as
4 The Hamptons did not dispute that the County had established the first element of
its design immunity defense, namely, the existence of a causal relationship between the
Plans and the accident.
5 The Hamptons argued that "[t]he purpose of providing design sight distance is to
allow a driver intending to enter the intersection with sufficient time to decide whether it
is safe to enter." The Hamptons contended that "[t]he purpose of providing 'operational'
sight distance is to allow a party sufficient time to perceive and then stop before
impacting a vehicle in the intersection."
6 Although the County agreed that the design sight distance standard had not been
met, the County contended that this standard applied only to the design of new
intersections, and that operational sight distance standards applied to improvements made
to existing intersections.
7
required under County protocol, and that he had instead improperly measured from "the
edge of the lane."7
With respect to the discretionary approval element, the Hamptons argued that "the
Plans are silent as to sight distance," and that the County thus failed to "provide[]
evidence that the deviations from design standards . . . were approved or even
considered." In addition, the Hamptons argued that any approval of the Plans was
necessarily unreasonable in light of the fact that the plans deviated from County sight
distance standards.
The Hamptons also argued that the County's failure to maintain the intersection
had resulted in changed conditions that precluded the application of the County's design
immunity defense. Specifically, the Hamptons maintained that plant growth along an
embankment on Cole Grade Road south of Miller Road further reduced the already
inadequate sight distance at the intersection provided for in the Plans.
The Hamptons supported their motion with various documents and the declaration
of Edward Stevens, a licensed civil engineer who has significant traffic engineering
experience. In his declaration, Stevens stated that an embankment runs along the east
side of Cole Grade Road as it approaches Miller Road and that this embankment limits
sight distance for westbound traffic on Miller Road looking south toward northbound
traffic on Cole Grade Road. Stevens further stated that the Plans do not depict the
7 It is undisputed that since there is a difference of several feet between the edge of
the pavement and the edge of the lane of traffic at the intersection at which the accident
occurred, a sight distance measurement taken relative to the pavement edge yields less
sight distance than one taken from the edge of the lane line.
8
embankment and that as a result, it is not possible to determine from the Plans the actual
sight distance at the intersection. Stevens stated that although the County standard for
design sight distance requires at least 550 feet of sight distance at the intersection and the
County standard for operational sight distance requires at least 388 feet, actual design
sight distance at the intersection was only 214 feet and operational sight distance was
only 323 feet.
Stevens stated the following with respect to Goralka's declaration as to the
adequacy of sight distance at the intersection:
"The standards set out by the County of San Diego . . . require that
design and operational sight distance be measured backwards from
the prolongation of the curb or gutter line or edge of the pavement,
not from the edge lane line. The Declaration of Robert Goralka
suggests that satisfactory operational sight distance exists at the
si[te]. However, Mr. Goralka does not use the standard adopted by
the County of San Diego for measuring sight distance. Further, Mr.
Goralka's methodology is not generally accepted in the traffic
engineering community as an appropriate means of measuring
design or operational sight distance."
Stevens contended that because of the lack of information pertaining to sight
distance in the Plans, "the engineer approving the Plans could not have exercised
discretionary approval of the sight distance." In addition, Stevens maintained that given
the inadequacies in the Plans pertaining to sight distance, "there is no basis upon which a
traffic engineer could have reasonably approved the Plans."
Stevens attached various documents to his declaration, including two County
engineering drawings, numbered DS-20A and DS-20B. The drawings are marked, "San
Diego County Design Standard[s]" and are entitled, "Clear Space Easement Type A" and
9
"Clear Space Easement Type B," respectively. The drawings appear to depict easements
necessary to achieve adequate "corner sight distance"8 at two different shaped
intersections. Both documents also contain an identical table that lists the "minimum
corner intersection sight distance" in feet for various "design speed[s]." The table states
that for a design speed of 50 miles per hour (MPH), 500 feet of corner intersection sight
distance is required, and that when the design speed increases to 60 MPH, 600 feet of
sight distance is required.
Stevens also included a document that contains several tables. One table, entitled,
" 'Corner' Sight Distance on Level Roadways," repeats the corner sight distance
information discussed in the previous paragraph, and includes a notation that states the
following: "Corner sight distance measured from a point on the minor road at least 10
feet from the edge of the major road pavement and measured from a height of eye of 3.5
feet on the minor road to a height of object of 4.25 feet on the major road. (See Count[y]
. . . Public Road Standards Drawings DS-20A and DS-20B)." Another table is entitled,
" 'Operational' Stopping Sight Distance on Level Roadways," and contains a note that
states, "Operational [Sight] Distance Measured from a point on the minor road 8 feet
from the edge of pavement. (Distance from the front of the vehicle to the driver's eye is
nearly always 8 ft [citation].) Measured from a height of eye of 3.5 feet on the minor
road to a height of object of 3.5 feet on the major road [citation]."
8 It appears from the record that the terms "design sight distance" and "corner sight
distance" are used interchangeably.
10
3. The County's reply
The County filed a reply in which it reiterated its argument that Goralka's
declaration established the existence of discretionary approval of the Plans prior to
construction. With respect to the reasonableness of the Plans, the County argued that the
fact that "experts disagree on the best approach to the sight distance problem" did not
establish a lack of "substantial evidence to support the reasonableness of the approach
actually followed by the County."
Specifically, the County argued that " 'operational' rather than 'design' criteria
appl[y] to an intersection of existing roadways," such as the intersection at issue. The
County also contended, "The way that operational sight distance at this intersection was
measured is consistent with the County's practices, where the edge of the lane used by
oncoming traffic is several feet in front of the limit line, thereby allowing drivers on
westbound Miller Road plenty of room to safely creep forward and look both ways before
reaching the oncoming lane and crossing into the intersection." The County further
argued that when operational sight distance is measured in this manner, the Plans provide
for adequate sight distance. Finally, the County argued that any growth in plants on the
embankment along Cole Grade Road did not constitute a relevant changed condition
since even with such growth, the embankment does not reduce the operational sight
distance of a reasonable driver who creeps forward beyond the limit line and checks for
oncoming traffic prior to entering the intersection.
11
In support of its reply, the County lodged a portion of the deposition testimony of
its retained expert, Arnold A. Johnson. In the deposition, Johnson testified that a County
document entitled "Service Request Guidelines Si[ght] Distance at Intersection" states,
"Sight distance is measured 8 feet back from the prolongation of the curb or 8 feet back
from an edge line." (Emphasis added.) The County also lodged a portion of Stevens's
deposition in which Stevens acknowledged that if Hampton had pulled his vehicle to a
point forward of the limit line on Miller Road just before entering the lane of traffic on
Cole Grade Road, "Cullen's vehicle would be within his view if it was within 550 feet of
the intersection. . . ."
C. The trial court's ruling
The trial court held a hearing on the motion. At the conclusion of the hearing, the
court took the matter under submission. Four days later, the trial court issued an order
granting the County's motion for summary judgment. The court ruled that the County
had established its design immunity affirmative defense as a matter of law. In reaching
this conclusion, the court reasoned in part:
"Defendant County has shown that no material issues of fact exist to
overcome the County's statutory entitlement to design immunity. As
is made clear by the Goralka Declaration . . . the [Plans] were
approved by Deputy County Engineer David Solomon, a licensed
civil engineer and traffic engineer on [March 3, 1995]. He was in
charge of the County of San Diego Design [E]ngineering Section.
As the person in charge of that Section, he had been delegated by the
County Board of Supervisors, through the Director of the
Department of Public Works, to have discretion and authority to
approve such plans. This bespeaks sufficient discretion to entitle the
County to invoke design immunity, as a matter of law. The court
finds that the Goralka declaration is of solid evidentiary value and
inspires confidence in the conclusions expressed.
12
"Further, . . . (as built) Drawings were signed off on by John
Bidwell, a licensed civil engineer who served as Senior Civil
Engineer of the County's Design Engineering Section on [April 13,
1998]. [Citation.] Defendant County has satisfied the three
elements necessary to show the County's entitlement to design
immunity by substantial evidence . . . . Typically, the opinion of a
civil engineer as to the reasonableness of the design constitutes the
'substantial evidence' that is necessary to support the design
immunity defense. [Citation.]
"The fact that Plaintiffs have an expert, Ed Stevens, who disagrees
with the County's witness, is of no consequence. It does not matter
whether the evidence of reasonableness is disputed, as the statute
provides immunity even when the public entity's substantial
evidence of the reasonableness of its design is contradicted by the
opposing party's traffic engineer. [Citations.]
"The court finds that there is substantial evidence upon which a
reasonable public employee could have adopted the plan or design
which gave rise to the 1998 modifications to Cole Grade Road near
the subject intersection. . . . Further the court determines that
plaintiff has failed to offer material admissible evidence of
significant changed physical conditions since 1988 rendering the
subject intersection dangerous (let alone that the County had prior
notice of same). There is no material triable issue of fact on this
contention. The County is entitled to Judgment as a matter of law."9
The trial court subsequently entered judgment in favor of the County.
D. The Hamptons' appeal
The Hamptons timely appealed from the judgment.
9 The trial court also sustained numerous objections that the County made to
Stevens's declaration, including portions of his declaration described above. On appeal,
the Hamptons contend that the trial court erred in sustaining those objections, contending
that the "propriety of [the County's] objections turns on this court's view of the law on
design immunity." We need not consider the propriety of the trial court's evidentiary
rulings, because even assuming that all of Stevens's declaration was admissible, for the
reasons that follow, we conclude that the trial court properly granted the County's motion
for summary judgment.
13
III.
DISCUSSION
The trial court properly granted the County's motion for summary judgment
A. The trial court properly determined that the County established, as a matter of
law, the affirmative defense of design immunity
The Hamptons contend that the trial court erred in concluding that the County
established, as a matter of law, the affirmative defense of design immunity.
1. Governing law
a. The law governing summary judgment
A moving party is entitled to summary judgment when the party establishes that it
is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.
(c).) A defendant may make this showing by demonstrating that the plaintiff cannot
establish one or more elements of all of his causes of action, or that the defendant has a
complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th
461, 466.)
In reviewing a trial court's ruling on a motion for summary judgment, the
reviewing court makes " 'an independent assessment of the correctness of the trial court's
ruling, applying the same legal standard as the trial court in determining whether there
are any genuine issues of material fact or whether the moving party is entitled to
judgment as a matter of law. [Citations.]' [Citation.]" (Trop v. Sony Pictures
Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
14
b. General principles of law governing the affirmative defense of
design immunity
In Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69 (Cornette), the
Supreme Court explained the purpose of the design immunity defense as follows:
"The rationale for design immunity is to prevent a jury from second-
guessing the decision of a public entity by reviewing the identical
questions of risk that had previously been considered by the
government officers who adopted or approved the plan or design.
[Citation.] ' " '[T]o permit reexamination in tort litigation of
particular discretionary decisions where reasonable men may differ
as to how the discretion should be exercised would create too great a
danger of impolitic interference with the freedom of decision-
making by those public officials in whom the function of making
such decisions has been vested.' " [Citation.]' [Citation.]" (Id. at
p. 69.)
Section 830.6, which codifies the defense of design immunity, provides in relevant
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."
"In other words, a public entity claiming design immunity must 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
15
evidence supporting the reasonableness of the plan or design. [Citations.]" (Cornette,
supra, 26 Cal.4th at p. 69.)
The discretionary approval element may be resolved as an issue of law if the
material facts pertaining to the element are undisputed. (Grenier v. City of
Irwindale (1997) 57 Cal.App.4th 931, 940 (Grenier).) The element "simply means
approval in advance of construction by the legislative body or officer exercising
discretionary authority." (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515,
526 (Ramirez).) "A detailed plan, drawn up by a competent engineering firm, and
approved by a city engineer in the exercise of his or her discretionary authority, is
persuasive evidence of the element of prior approval." (Grenier, supra, at pp. 940-941.)
The third element, substantial evidence supporting the reasonableness of plan or
design always presents a question of law. (See Cornette, supra, 26 Cal.4th at
p. 72 ["Section 830.6 clearly makes the resolution of the third element of design
immunity, the existence of substantial evidence supporting the reasonableness of the
adoption of the plan or design, a matter for the court, not the jury."].) Further, the statute
provides immunity when there is any substantial evidence of reasonableness, even if
contradicted. (Grenier, supra, 57 Cal.App.4th at p. 940.)
2. Application
The Hamptons contend that the trial court erred in concluding that the County
established the elements of discretionary approval of the Plans and substantial evidence
supporting the reasonableness of the Plans. We consider each element in turn.
16
a. Discretionary approval
The County presented undisputed evidence that a licensed civil and traffic
engineer working for the County, David Solomon, approved the Plans prior to the
construction of the improvements. The Plans consist of construction documents that
include various drawings, including details of the intersection at which the accident
occurred. The Plans themselves indicate that they have been "approved by" Solomon.
The County also presented undisputed evidence both that Solomon had the discretionary
authority to approve the Plans, and that a licensed engineer working for the County
approved and signed "as built" plans after construction of the improvements. This
evidence demonstrates the discretionary approval element, as a matter of law. (See, e.g.,
Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263 (Laabs) [evidence that an
engineer employed by a public entity "reviewed and approved" construction plans
established discretionary approval element as a matter of law]; Grenier, supra, 57
Cal.App.4th at p. 941 [concluding that City established discretionary approval element as
a matter of law where "plans were prepared by Saguchi, a civil engineer, and approved by
Alvarado, the city engineer, after review"]; Ramirez, supra, 192 Cal.App.3d at p. 525
[concluding discretionary approval element demonstrated as a matter of law where "the
City's engineer, along with the engineers and other officials of the county who were
recognized as being competent in the design of highways, approved the design before it
was adopted by the City"].)
17
In arguing that the trial court erred in concluding that the County established the
discretionary approval element, the Hamptons cite two cases, Levin v. State of
California (1983) 146 Cal.App.3d 410 (Levin), and Hernandez v. Department of
Transp. (2003) 114 Cal.App.4th 376 (Hernandez). The Hamptons argue, "Levin and
Hernandez teach that where, as here, there is evidence the design at issue violated the
public entity's own standards, the public entity cannot establish the second element of
design immunity—discretionary approval—unless it shows that the engineer who
approved the plans (1) knew it was substandard, (2) elected to disregard the standard, and
(3) had the authority to do so." We agree that Levin and Hernandez support this
proposition. (Levin, supra, at p. 418 [concluding that state failed to establish
discretionary approval of plans because state failed to show that the public employee who
approved plans decided to "to ignore the standards [pertaining to placement of a
guardrail] or considered the consequences of the elimination of the eight feet shoulder"];
Hernandez, supra, at p. 388 [concluding triable issue of fact existed as to discretionary
approval element because there was "[c]onflicting evidence . . . presented in the trial
court as to whether the off-ramp design at issue in this case deviated from the applicable
guardrail standards and, if so, whether that deviation was knowingly approved by the
responsible Caltrans authorities"].) However, for reasons we explain below, we do not
find either decision persuasive in this regard, and we therefore decline to follow Levin or
Hernandez with respect to the nature of the evidence that the governmental entity must
present to establish the discretionary approval element.
18
In Levin, Dr. Marcia Levin was killed in an automobile accident that occurred
when she tried to avoid a head-on collision with a drunk driver who had illegally crossed
the double yellow line, into Levin's lane. (Levin, supra, 146 Cal.App.3d at p. 414.)
Levin was "driving at a lawful speed, and in a reasonable manner, and tried to avoid the
collision swerving to her right, but went over a steep embankment into the channel from
which the embankment had been excavated." (Ibid.) Levin's car overturned and she
drowned. (Id. at p. 415.) Levin's family members sued the state and brought a cause of
action for wrongful death. (Id. at p. 413.) The state filed a motion for summary
judgment based on the defense of design immunity, which the trial court granted. (Ibid.)
On appeal, the Levins contended that the trial court erred in granting the state's
motion for summary judgment. (Levin, supra, 146 Cal.App.3d at pp. 413-414.) After
outlining the elements of the design immunity defense, and concluding that the causal
relationship element of design immunity had been established (id. at pp. 415- 417), the
Levin court noted that the discretionary approval element was "the major focus of the
contentions on this appeal." (Id. at p. 417.) With respect to this element, the Levin court
observed that the changes to Route 37 had been approved by a person named J. A.
Legarra, a state deputy highway engineer who had the authority to approve such changes.
The Levin court also noted that the record contained evidence that another state engineer
had "considered the placement of a median barrier and exterior guardrails, but concluded
that neither was advisable on this particular stretch of Highway 37." (Id. at p. 418.)
Despite the existence of this evidence, the Levin court concluded that the state had not
established the discretionary approval element of its design immunity defense, reasoning:
19
"The state has not challenged the existence and application of
the . . . guardrail standards. [The state's evidence does] not mention
them or the degree of the steep slope created by the embankment,
which was created by the 1974 construction. There was no evidence
that Legarra had discretionary authority to disregard the standards.
"As our Supreme Court pointed out in Cameron v. State of
California (1972) 7 Cal.3d 318, 326 [(Cameron)], the rationale of
the design immunity defense is to prevent a jury from simply
reweighing the same factors considered by the governmental entity
which approved the design. An actual informed exercise of
discretion is required. The defense does not exist to immunize
decisions that have not been made. Here, as in Cameron, supra, the
design plan contained no mention of the steep slope of the
embankment. The state made no showing that Legarra, who alone
had the discretionary authority, decided to ignore the standards or
considered the consequences of the elimination of the eight feet
shoulder. It follows that the state also failed to establish the second
element of the defense." (Id. at p. 418, italics added; accord
Hernandez, supra, 114 Cal.App.4th at p. 388 [applying Levin and
concluding that triable issues of fact existed as to discretionary
approval element of design immunity defense in light of conflicting
evidence as to whether off-ramp design at issue in case deviated
from applicable standards and, if so, whether deviation was
knowingly approved,] italics added.)
We respectfully disagree with Levin and Hernandez to the extent they suggest that
a public entity attempting to establish the discretionary approval element of a design
immunity defense must establish an exercise of informed discretion, and that evidence
that the public entity failed to adhere to standards pertaining to an element of a design
plan constitutes evidence of a lack of discretionary approval of the design. The text of
section 830.6, from which the discretionary approval element is derived, does not contain
any requirement of informed discretion. (See Alvis v. County of Ventura (2009) 178
Cal.App.4th 536, 552 (Alvis) ["[S]ection 830.6 does not state the approval must be
knowing or informed. A court may not rewrite a statute to make it conform to a
20
presumed intent that is not expressed."].) Nor does the relevant statutory text require the
presentation of evidence demonstrating that the design conformed to relevant standards.
On the contrary, the statute provides that the discretionary element may be established
either by evidence of appropriate discretionary approval or evidence that the plan
conformed with previously approved standards. (§ 830.6 ["Neither a public entity nor a
public employee is liable under this chapter for an injury caused by the plan or design . . .
where such plan or design has been approved . . . by some . . . employee exercising
discretionary authority to give such approval or where such plan or design is prepared in
conformity with standards previously so approved," italics added].)
The Supreme Court's decision in Cameron, supra, 7 Cal.3d 318, the sole case that
the Levin court cites in its analysis of the discretionary approval element,10 does not
support a requirement that the design conform to previously approved standards. In
Cameron, plaintiffs suffered injuries in an automobile accident that occurred after the
driver of the vehicle in which they were traveling lost control of the vehicle while
negotiating a curve on a highway. (Cameron, supra, at p. 321.) The plaintiffs brought a
cause of action against the state alleging that it "failed in its duty to keep the highway in a
safe condition in that the curve was so improperly graded or banked that an automobile
could not negotiate the curve even though going at a lawful speed." (Id. at p. 322.) The
trial court concluded that the state established as a matter of law all of the elements of its
10 Levin, supra, 146 Cal.App.3d 410 is the only relevant authority that the Hernandez
court cited with respect to this issue. (See Hernandez, supra, 114 Cal.App.4th at pp. 385-
388.)
21
design immunity defense. (Id. at p. 322, fn. 3.) On appeal, the Supreme Court agreed
with the plaintiffs "that the design immunity conferred by Government Code section
830.6 is inapplicable since the design plan approved . . . did not specify the degree of
superelevation [on the curve] and since it was the improper superelevation which
constituted the dangerous condition causing the accident." (Id. at p. 322.)
Cameron does not support the Levin court's interpretation of the discretionary
approval element because the holding in Cameron was premised not on an analysis of the
element of discretionary approval, but on the court's analysis of an entirely different
element of the design immunity defense, namely, the requirement that there be a causal
relationship between the plan and the accident. In Cameron, the court determined that a
causal relationship was lacking because the plan did not contain the design feature (a
superelevated curve) that plaintiffs alleged was the cause of the accident. (Cameron,
supra, 7 Cal.3d at p. 326 [concluding that because the "superelevation as . . . constructed
did not result from the design or plan introduced into evidence[,] . . . there was no basis
for concluding that any liability for injuries caused by this uneven superelevation was
immunized by section 830.6," fn. omitted, italics added].)
In addition, while the Levin court was correct in noting that the Cameron court
observed that the rationale of the design immunity defense is to prevent a jury from
simply reweighing the same factors considered by the governmental entity that approved
the design (Levin, supra, 146 Cal.App.at p. 418, citing Cameron, supra, 7 Cal.3d at
p. 326), the Cameron court merely stated that this rationale would not be served by
providing immunity for a lawsuit based on the existence of a project design that is
22
unrelated to the accident. In contrast, permitting a jury to reweigh the reasonableness of
a project design that is related to the accident, as in Levin and as in this case,11 would
permit a jury to simply reweigh the same factors already considered by the governmental
entity, in contravention of the rationale for design immunity.
On a related point, the Levin court's statement in arguing that a public entity must
demonstrate that its employee's approval was informed (Levin, supra, 146 Cal.App.3d at
p. 418), conflates the third element of design immunity—the reasonableness of the
design, with the second—discretionary approval of the plans. This conflation is
significant, because while conflicting evidence as to the discretionary approval element
would require that a public entity's motion for summary judgment premised on design
immunity be denied (Grenier, supra, 57 Cal.App.4th at p. 940), conflicting evidence as to
the reasonableness of the design would not (ibid.).
Finally, the determination of the nature of the evidence necessary to satisfy this
element in Levin and Hernandez is in conflict with numerous decisions in which courts
have held that the discretionary approval element is satisfied by proof that the plans were
11 In Levin, as noted above, the court concluded that the causal relationship element
of design immunity had been established. (Levin, supra, 146 Cal.App.3d at pp. 415-417.)
In this case, the Hamptons did not dispute in the trial court or in this court that the County
established the existence of a causal relationship between the design and the accident.
Thus, we need not consider whether any alleged inadequacy of sight distance at the
intersection as built was unrelated to the design plans, as was the case with the
superelevated curve at issue in Cameron. (See Cameron, supra, 7 Cal.3d at p. 326.)
Further, nothing we say in this opinion is contrary to the Cameron court's holding that
evidence that a plan omitted the condition that is the alleged cause of the accident may
defeat a showing of a causal relationship, since that element is not in dispute in this case.
(Ibid.)
23
approved by a public employee having discretionary authority to effectuate such
approval. (See e.g., Becker v. Johnston (1967) 67 Cal.2d 163, 172-173 (Becker); Laabs,
supra, 163 Cal.App.4th at p. 1263; Grenier, supra, 57 Cal.App.4th at p. 941; Ramirez,
supra, 192 Cal.App.3d at p. 525.) For example, in Becker, supra, at pages 172-173, the
Supreme Court cited the following evidence pertaining to the discretionary approval
element of the design immunity defense at issue in that case:
"The record in this case contains a copy of the plans of the
intersection here involved, as recorded by the Recorder of
Sacramento County in State Highway Map Book 3. Such plans on
their face indicate that on July 11, 1927, they were approved by
F.W. Hazelwood, Division Engineer, Division III; Fred Quinn,
Engineer, Surveys and Plans; and R.W. Morton, State Highway
Engineer; and, further, that the work was completed in 1929 in
accordance with the plans."
The Becker court held that this evidence, when considered in connection with evidence
pertaining to the reasonableness of the design plan, established, as a matter of law, the
public entity's design immunity defense. (Id. at p. 173.)
As discussed above, in this case, the evidence that the County presented pertaining
to the discretionary approval of the Plans is similar to that presented in Becker and in
numerous other cases in which courts have concluded that a public entity demonstrated
the discretionary approval element as a matter of law. Accordingly, we conclude that the
trial court properly determined that in presenting undisputed evidence that a licensed civil
and traffic engineer employed by the County approved the Plans prior to construction,
that this engineer had the discretionary authority to approve the Plans, and that another
licensed engineer employed by the County approved and signed the "as built" plans after
24
construction of the improvements, the County demonstrated the discretionary approval
element of its design immunity defense as a matter of law.
b. Substantial evidence of the reasonableness of the Plans
The Hamptons also contend that the trial court erred in concluding that the County
presented substantial evidence supporting the reasonableness of the plans.
i. Additional relevant law
As discussed above, a public entity claiming a design immunity defense must
present substantial evidence supporting the reasonableness of the plan or design.
(Cornette, supra, 26 Cal.4th at p. 69.) "In order to be considered substantial, the
evidence must be of solid value, which reasonably inspires confidence. [Citations.]"
(Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 757.) "The task for the trial
court is to apply the deferential substantial evidence standard to determine whether any
reasonable [public] official could have approved the challenged design. [Citation.] If the
record contains the requisite substantial evidence, the immunity applies, even if the
plaintiff has presented evidence that the design was defective. [Citation.]" (Ibid.) In
Ramirez, supra, 192 Cal.App.3d 515, the court explained the rationale for this standard,
as follows:
"The statute does not require that property be perfectly designed,
only that it be given a design which is reasonable under the
circumstances. By deciding on a 'reasonableness' standard, the
Legislature intended that government officials be given extensive
leeway in their decisions concerning public property.
25
"A governmental entity. . . is entitled to rely on what is apparently
competent advice in making legislative decisions. The fact that on
hindsight that advice may prove to have been flawed is not a basis
for imposing liability on the governmental entity." (Id. at p. 525.)
Therefore, " ' "[A]s long as reasonable minds can differ concerning whether a
design should have been approved, then the governmental entity must be granted
immunity." [Citation.]' [Citation.]" (Sutton v. Golden Gate Bridge, Highway &
Transportation Dist. (1998) 68 Cal.App.4th 1149, 1158.)
"The fact of approval by competent professionals can, in and of itself, establish the
reasonableness element. (See, e.g., Ramirez[, supra,] 192 Cal.App.3d at p. 526.)"
(Higgins v. State of California (1997) 54 Cal.App.4th 177, 187 (Higgins).) However,
"[t]ypically, 'any substantial evidence' consists of an expert opinion as to the
reasonableness of the design, or evidence of relevant design standards. [Citations.]"
(Laabs, supra, 163 Cal.App.4th at pp. 1263-1264, italics added.)
ii. Application
It is undisputed that the Plans were approved by a licensed civil and traffic
engineer. As this court recognized in Compton v. City of Santee (1993) 12 Cal.App.4th
591, this fact supports a finding of reasonableness. (Id. at p. 597 ["First, the design of the
Magnolia Avenue Bridge was supervised by R. J. Massman, county engineer. This
factor, alone, probably suffices to establish immunity."].) In addition, Goralka's
declaration in which he stated that "[t]he [Plans] are reasonable," constitutes additional
evidence of the reasonableness of the plans. (Laabs, supra, 163 Cal.App.4th at pp. 1263-
1264 [substantial evidence of the reasonableness of a design may be demonstrated by an
26
expert's opinion]; see also Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007,
1015 (Hefner) ["Ordinarily, the opinion of a civil engineer as to the reasonableness of a
design constitutes 'any' substantial evidence sufficient to support a design immunity
defense under section 830.6"].)
Contrary to the Hamptons' contention that Goralka's declaration is "perhaps the
charter example of conclusory expert testimony," Goralka provided a reasoned
explanation for his conclusion that the operational sight distance at the intersection is
adequate. Goralka explained that it was reasonable for the engineer to anticipate that a
reasonable driver on westbound Miller Road would move slowly past the limit line on
Miller Road in order to gain adequate sight distance to the left, prior to entering the
intersection with Cole Grade Road. That Goralka's explanation is reasonable finds
support in case law:
"The practice of stopping at a limit line and then 'creeping' forward
to a point of visibility has long been recognized as 'practical' under
California law. [Citation.] There are many reasons why a limit line
would be placed where visibility of oncoming traffic might be
impaired. Troll[e]y or railroad tracks could require the limit line to
be set back from the intersection. Or (as anyone who has driven in
San Francisco would understand), many times the limit line is placed
below the crest of a steep hill to avoid a pedestrian crosswalk,
requiring the driver to cross the limit line before he or she can tell
whether it is safe to proceed further." (Hefner, supra, 197
Cal.App.3d at p. 1016.)
The Hamptons' presentation of conflicting expert testimony as to the
reasonableness of the Plans does not demonstrate that the County failed to present
substantial evidence of their reasonableness. (See, e.g., Grenier, supra, 57 Cal.App.4th
at p. 941 ["That a plaintiff's expert may disagree does not create a triable issue of fact," as
27
to the existence of substantial evidence of the reasonableness of a design]; Higgins,
supra, 54 Cal.App.4th at p. 186 [same]; Compton, supra, 12 Cal.App.4th at pp. 596-597
[same].)
The Hamptons' citation to Levin, supra, 146 Cal.App.3d at page 418, also does not
support reversal. While the Levin court concluded that the testimony of the state's expert
witness in that case did not constitute substantial evidence of the reasonableness of the
design plan, the Levin court reached this conclusion in part because there was undisputed
evidence that the design at issue did not meet applicable standards. (Ibid. ["The state has
not challenged the existence and application of the above quoted guardrail standards"].)
In contrast, in this case, the County maintains that the intersection complied with all
applicable County guidelines for sight distance. The County supported this argument in
the trial court with expert testimony that the intersection provides adequate sight distance,
when such distance is probably measured under County standards. (See pt. II.B.3., ante.)
Under these circumstances, the fact that the Hamptons' expert concluded otherwise does
not preclude summary judgment. For example, in Compton, supra, 12 Cal.App.4th 591,
the plaintiff presented an "expert's testimony that the 'sight distances' were below
recommended standards," and argued that "this testimony raises an issue of fact as to
whether the design was reasonable." (Id. at p. 596.) This court rejected plaintiff's
argument, reasoning:
28
"The problem with this argument is that it does not focus on the key
determination to be made in a design immunity case. The issue is not
whether the trial court or jury could find the design unreasonable
based on conflicting evidence, but whether there is any reasonable
basis on which a reasonable public official could initially have
approved the design." (Id. at pp. 596-597; accord Grenier, supra, 57
Cal.App.4th at pp. 938, 940-942 [concluding City presented
substantial evidence of the reasonableness of a design
notwithstanding plaintiff's expert testimony that design failed to
meet various applicable standards].)
Further, the Levin court's conclusion that the state had failed to present substantial
evidence of the reasonableness of the design at issue in that case was premised in part on
the fact that "the record reveals a conflict between Levin's experts and the state's as to the
reasonableness of the design." (Levin, supra, 146 Cal.App.3d at p. 418.) However, as
noted above, the law is well established that "section 830.6 provides immunity even if the
evidence of reasonableness is contradicted." (Alvis, supra, 178 Cal.App.4th at p. 554.)
We therefore decline to follow the reasoning of Levin in this respect.
In sum, the trial court properly concluded that there is substantial evidence in the
record that the Plans are reasonable.
3. Conclusion
Contrary to the Hamptons' counsel's suggestion at oral argument, we do not hold
that a public entity is entitled to design immunity any time an employee with authority
signs off on a plan and another employee/engineer attests that the plan is reasonable. To
begin with, as noted previously, the Hamptons did not dispute in the trial court or in this
court that the County established a causal relationship between the Plans and the
accident. Thus, while "section 830.6 does not immunize for liability caused independent
29
of design," we have no occasion to consider the potential application of this principle in
this case. (Alvis, supra, 178 Cal.App.4th at p. 550, citing Cameron, supra, 7 Cal.3d at
pp. 328-329.) With respect to the discretionary approval element, we conclude that the
trial court properly determined that the County presented evidence establishing that an
employee with discretionary authority approved the Plans for the redesign of the
intersection at issue, and that nothing more is required to establish the second element of
design immunity. Finally, we conclude that the County presented substantial evidence of
the reasonableness of the Plans by offering expert testimony that the intersection provides
adequate sight distance when such distance is properly measured under the applicable
County guideline. Accordingly, we conclude that the trial court properly determined that
the County established, as a matter of law, the affirmative defense of design immunity.
B. The trial court properly determined that there is no triable issue of fact
with respect to the Hamptons' contention that changed circumstances
resulted in a loss of design immunity
The Hamptons maintain that the trial court erred in concluding that they failed to
demonstrate a triable issue of fact with respect to their contention that changed
circumstances at the intersection resulted in a loss of design immunity.
1. Governing law
In order to defeat the County's motion for summary judgment on the ground of
loss of design immunity, the Hamptons bore the burden of producing evidence sufficient
to demonstrate a triable issue of fact with respect to the following three elements: (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 dangerous condition thus created;
30
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 due to practical
impossibility or lack of funds, had not reasonably attempted to provide adequate
warnings. (Laabs, supra, 163 Cal.App.4th at p. 1268.)
2. Application
The Hamptons contend that they established the existence of a triable issue of fact
with respect to whether the County lost any applicable design immunity based on the
existence of an "accumulation of additional foliage on the embankment which further
limited sight distance looking south from Miller Road." We are not persuaded.
To begin with, we disagree that any changes in the physical topography of the
embankment constituted evidence that the design for the intersection had become
dangerous. It is undisputed that the embankment does not impede operational sight
distance for a westbound driver on Miller Road looking south on Cole Grade Road who
is within eight feet of the edge of lane of traffic on Cole Grade Road regardless of any
overgrowth.12 Further, as discussed above, the County presented evidence that it was
reasonable for an engineer to design the intersection using operational sight distance
12 The County's retained expert testified that the embankment had no effect on sight
distance when a driver is "within 8 feet of the edge line," and stated "the embankment is
not a factor, in my opinion." The Hamptons' expert, Edward Stevens, was asked during
his deposition, "[I]f Mr. Hampton had pulled forward and just before entering—the front
of his vehicle would enter and cross into that through lane, if he had looked left, Mr.
Cullen's vehicle would be within his view if it was within 550 feet of the intersection,
correct?" Stevens responded, "That's true."
31
calculations measured from this location. (See pt. II.B.3., ante.) Thus, any changes in
the physical condition of the embankment do not constitute evidence of a dangerous
condition.
With respect to the notice element, the Hamptons cite a 2008 "County of
San Diego - Department of Public Works Traffic Engineer Request." This one-page
handwritten document appears to pertain to a citizen's request that an "Adopt-A-Road"
sign be placed on Miller Road. The document recommends removing Miller Road from
the Adopt-A-Road availability list on the grounds that the "majority of the road is
curvilinear," and there are "limited roadsides[13] due to vegetation being overgrown and
[the] embankment." The document does not refer to the intersection in question, and
clearly does not demonstrate the existence of a triable issue of fact with respect to
whether the County had actual or constructive notice of a dangerous condition created by
the purported changed condition. Finally, the Hamptons do not discuss the third element
of loss of design immunity, pertaining to funding, in their brief.
Accordingly, we conclude that the Hamptons failed to demonstrate that the trial
court erred in determining that there is no triable issue of fact with respect to the
Hamptons' contention that changed circumstances resulted in a loss of design immunity.
13 The handwriting on the document makes this word difficult to read, but it appears
to state "roadsides."
32
IV.
DISPOSITION
The judgment is affirmed. The Hamptons are to bear costs on appeal.
AARON, J.
WE CONCUR:
NARES, Acting P. J.
O'ROURKE, J.
33