S.C. Takes Broad View of Design Immunity

Friday, December 11, 2015

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S.C. Takes Broad View of Design Immunity

By KENNETH OFGANG, Staff Writer

A public entity need not show that the official who approved the design of a road or other public work followed, or even knew, what the entity’s design standards were in order to claim design immunity, the state Supreme Court ruled yesterday.

The court unanimously affirmed a ruling by the Fourth District Court of Appeal in favor of San Diego County. The lower courts agreed that the county could not be held liable for injuries sustained in an auto collision by a motorist who claimed that the design and construction of the intersection where the collision occurred violated the county’s own standards for visibility.

The plaintiff, Randall Hampton, was seriously injured in the pre-dawn collision in 2009. He alleged that he pulled forward from rural Miller Road onto two-lane Cole Grade Road while attempting to turn left. He alleged that the collision was caused both by the negligence of the other driver, who pulled “right in front of him,” as well as by that of the county.

The county, he said, should have taken into account the loss of visibility over a high embankment covered with vegetation, which was not described or depicted in design drawings or considered in the design plan.

The county, however, won its summary judgment motion, largely on the basis of a declaration by the county traffic engineer establishing that the appropriate officials in the Design Engineering Section signed off on the drawings and plans.

While there was a dispute as to how visibility should be measured under the county standards, Superior Court Judge Timothy Taylor ruled, the immunity of Government Code §830.6 applied because it was undisputed that the approval of the road’s design was made by an “employee [of the public entity] exercising discretionary authority to give such approval” and there was “substantial evidence upon the basis of which...a reasonable public employee could have adopted the plan or design or the standards therefor.”

The plaintiffs argued that discretion, in the contemplation of the Legislature, requires “an awareness of what is to be judged or chosen,” and that they had established a triable issue by showing that the engineers improperly measured visibility from behind the edge of the lane of oncoming traffic, instead of behind the “limit line.”

But both the Court of Appeal and the Supreme Court said the county had the better of the argument.

Chief Justice Tani Cantil-Sakuye, in her opinion for the high court, noted that the statutory language goes back to the 1963 Tort Claims Act, and that the Law Revision Commission, in recommending the language, took a position consistent with the county’s defense.

The purpose of the immunity, the commission said, was to avoid “reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised.” The litigation of such issues, the commission said, “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.”

Those statements reflect legislative intent, the chief justice said, while the plaintiffs’ interpretation “would implicate the adequacy of the deliberative process at the discretionary approval stage and would lead a jury into just the sort of second-guessing concerning the wisdom of the design that the statute was intended to avoid.”

Another problem with the plaintiffs’ interpretation, Cantil-Sakauye said, is that cases involving identical designs might have different outcomes, “depending simply upon the recordkeeping ability of the public entities involved, or the availability of employees who are able to remember the decisionmaking process of the persons involved — a process that may have occurred long before the lawsuit.”

Cantil-Sakauye distinguished Cameron v. State of California (1972) 7 Cal.3d 318, in which the court ruled the state had not established design immunity with respect to a “superelevation” of a highway, a condition that was omitted from the plans on which the immunity defense was based.

The court in that case, the chief justice wrote, “did not suggest that, under the discretionary approval element of section 830.6, the public entity bears the burden of demonstrating that its employee considered all potentially applicable standards.”

If the court had imposed such a requirement, she added, it would have been “a surprising retreat from the basic understanding that the discretionary approval element of design immunity asks whether a person vested with discretion to approve the plan did approve the plan or design that was built, and that the question whether it was wise to approve the plan is judged under the reasonableness element of the statute.”

Cantil-Sakauye acknowledged that a pair of later Court of Appeal decisions cited Cameron in reaching results consistent with the plaintiffs’ arguments in the present case. But those cases do not reflect the actual holding in Cameron or the correct interpretation of the statute, she said.

The case is Hampton v. County of San Diego, 15 S.O.S. 5907.