Wednesday, April 9, 2014
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Court Says County Failed to Prove Design Immunity Applied
Panel Takes Narrow View, Says Burden Is on Defense to Show a Discretionary Decision Was Made
By KENNETH OFGANG, Staff Writer
A public entity may not avoid liability for a dangerous condition of its property on the basis of design immunity, absent substantial evidence that the design in question was adopted as an act of official discretion, the Court of Appeal for this district ruled yesterday.
Div. Six overturned a judgment in favor of Ventura County, and granted the paraplegic victim of a motorcycle crash a new trial in Ventura Superior Court.
The plaintiff, Humberto Martinez, struck an asphalt berm abutting a raised drain on county-owned property along Box Canyon Road. He alleged in his complaint that the “top-hat” drainage system, consisting of a heavy steel cover on three legs elevated eight to 10 inches off the ground, with the berm used to channel water into the drain, was a dangerous condition for which the county was liable under Government Code §835.
The statute requires the plaintiff to prove that a dangerous condition existed on the defendant’s property, that the risk of injury was reasonably foreseeable, and that the defendant had actual or constructive notice sufficiently in advance of the occurrence to take preventive measures. A number of affirmative defenses are available, including design immunity under §830.6.
To prove the defense, the public entity must show that it exercised discretion in approving the design prior to construction, that the design had a causal relationship to the occurrence, and that there is substantial evidence of the reasonableness of the design.
In Martinez’s case, a number of witnesses testified that the drainage system was built “in the field” in 1990; that it was treated as a maintenance item, and thus no formal plans were drawn up; and that none of those involved in the project were licensed engineers.
The county’s road maintenance engineer at the time, Loren Blair, testified that he “probably” approved the design.
The jury found that the plaintiff had established the elements of liability, but that the defendant had established the elements of design immunity, and judgment was entered for the defendant.
Assigned Jurist’s Opinion
Los Angeles Superior Court Judge Joanne O’Donnell, however, sitting on assignment to the Court of Appeal, said the county failed to present substantial evidence of a plan or design for the drain system, and that if there was such a plan, there was no evidence that it was approved by someone who had authority to do so.
She distinguished Thomson v. City of Glendale (1976) 61 Cal.App.3d 378 (Thomson), which found the defense applicable to the design of a handrail, based on the existence of a “shop drawing” which the plaintiff argued was inadequate to support a finding of immunity.
The county’s evidence regarding the drain system, O’Donnell wrote, “does not meet even the low standard set in Thomson,” which was that the plan be “sufficiently explicit to assure that it is understandable to the employee giving the approval.”
The jurist explained:
“The County introduced no design at all for the top-hat drain, even something as simple as a shop drawing. The evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them.”
She went on to note that the legal authority to approve the drain system was placed by state law in the hands of the county road commissioner, who did not testify at the trial. There was no evidence that the road commissioner gave such approval, or delegated the authority to do so, O’Donnell said.
Question of Authority
Blair’s testimony that he likely approved the design isn’t substantial evidence that he had the authority to do so, the jurist explained.
“The locus of a county’s discretionary approval authority is fixed by law and with reference to the County’s internal distribution of its powers,” she wrote. “…The County cites no authority for the proposition that the testimony of a highway maintenance supervisor that he ‘approved’ the design of the top-hat drain, even if the testimony is uncontradicted, is substantial evidence of the discretionary approval element of design immunity in the absence of evidence that such authority had been assigned to him.”
She cited Thomson, in which the evidence showed that responsibility for maintaining the facility where the plaintiff was injured had been assigned by the city charter to the Public Works Department; that the public works director was authorized by ordinance to, and did, delegate that authority to the maintenance supervisor; and that the maintenance supervisor approved the handrail design.
O’Donnell also rejected the contention that discretionary approval could be implied from the long period of continuous use. A finding of “implied” approval, she said, would represent an expansion of the immunity “without any showing that the Legislature intended that result.”
The case is Martinez v. County of Ventura, 14 S.O.S. 1748.
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