Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS030473.
Jones, P.J.
Plaintiffs are the widower and two children of the decedent, Audrey Llewellyn. Llewellyn died in a tragic car accident in January 2007 when a car traveling in the opposite direction on Interstate 80 vaulted over a metal barrier and landed in the path of Llewellyn’s car. Llewellyn crashed into the car and was killed. Plaintiffs filed a wrongful death lawsuit against the State of California (the State) and others alleging the State maintained a dangerous condition of public property under Government Code section 835. The trial court granted the State’s motion for summary judgment, concluding: (1) there was no “condition of property that created a substantial risk of injury when the property was used in a foreseeable manner with due care;” (2) the State did not create the dangerous condition or have actual or constructive notice of the condition before the accident; and (3) the State was entitled to design immunity pursuant to section 830.6.
Unless otherwise noted, all further statutory references are to the Government Code.
Plaintiffs appeal. They contend the trial court erred by granting summary judgment because there were triable issues of fact regarding whether: (1) the dangerous condition was created by the Department of Transportation’s negligent failure to perform a trajectory analysis described in Traffic Bulletin No. 15 and required by a Department of Transportation traffic manual; and (2) the State created the dangerous condition or had notice of it before the accident. Plaintiffs also contend the State failed to prove it was entitled to design immunity.
We reverse the judgment. Plaintiffs presented evidence that the State was required to conduct a trajectory analysis on the barrier pursuant to Traffic Bulletin No. 15 and that the State violated this safety standard by failing to conduct the analysis. This evidence created a triable issue of fact regarding whether the State created a dangerous condition of public property, and whether the State had notice that the property was in a dangerous condition. (§§ 835, 835.2.) There was also a triable issue of fact regarding the second element of design immunity — whether the State obtained discretionary approval of the design prior to construction. (§ 830.6.)
FACTUAL AND PROCEDURAL BACKGROUND
The area along Interstate 80 in Vacaville, near the Cherry Glen overcrossing, is a split-level roadway with the eastbound lanes of traffic at the bottom of a sloped dirt median and the westbound lanes of traffic at the top of the median. A metal barrier is located at the top of the embankment, adjacent to the westbound lanes of traffic. The median separating the eastbound and westbound lanes of traffic is approximately 30 to 40 feet long and has a grade of 2:1.
On the morning of January 20, 2007, Mary Gelpke was driving her Toyota Corolla eastbound on Interstate 80, near the Cherry Glen overcrossing. Gelpke was driving in the fast lane, traveling 65 miles per hour. Suddenly, her car veered to the right, into the number two lane. To try to regain control of the car, Gelpke turned to the left, causing the car to cross back over the fast lane and to enter the dirt embankment. The car ascended the embankment and vaulted into the air, clipping the top of the metal guardrail and landing in the westbound lanes of traffic. Llewellyn’s car hit Gelpke’s and burst into flames. Five additional cars were involved in the accident. Four people died, including Llewellyn. After the accident, a passenger in Gelpke’s car told the police that he “remembered music on in the car and he thought [Gelpke] was adjusting her iPod” when another passenger shouted to Gelpke, “‘[W]atch out!’”
Plaintiffs filed a wrongful death lawsuit against the State and others, alleging the State maintained a dangerous condition of public property under section 835. Plaintiffs alleged the roadway where the accident occurred constituted a dangerous condition of public property because the State failed to install and maintain adequate barriers or guardrails. Plaintiffs further alleged the State “negligently created and/or possessed knowledge, actual or constructive” of the dangerous condition. Plaintiffs’ theory was the metal guardrail at the top of the median separating the eastbound and westbound lanes of traffic did not prevent eastbound vehicles from vaulting into westbound traffic.
The State’s Motion for Summary Judgment
The State moved for summary judgment, claiming plaintiffs could not establish the existence of a dangerous condition or that the State had notice of such a condition. Alternatively, the State argued it was entitled to design immunity pursuant to section 830.6. The evidence presented in support of the motion established the following undisputed facts.
Interstate 80 at the accident location was built in 1966 pursuant to State Contract No. 10-090604. The district engineer, the engineer of design, state highway engineer, a registered civil engineer, and the director of public works signed and approved the highway design plan in April 1964, before construction began. As originally designed and built, a sloped dirt median separated the eastbound and westbound lanes of traffic. A single beam metal guardrail was installed adjacent to the westbound lanes of traffic. There was no guardrail next to the eastbound lanes of traffic.
In 2003, the Office of Traffic at the California Department of Transportation (Office of Traffic) proposed a project to upgrade the barriers along Interstate 80, including the location where the accident occurred. In the project report, the Office of Traffic proposed upgrading existing cable and metal beam barriers with concrete and metal beam barriers. Traffic engineers consulted the Roadside Design Guide (RDG) published by the American Association of State Highway Transportation Officials, which recommended placing a barrier at the top of a median slope — but not at the bottom of the slope — where the grade of the slope is greater than 10:1. The design engineers did not recommend adding a barrier at the base of the roadway, adjacent to the eastbound lanes of traffic for two reasons: (1) the absence of “significant accident history” at the accident location in the five years preceding the accident; and (2) the RDG did not recommend placing a barrier at the top of a grade. On July 26, 2004, the design engineer signed the designs for the project. The plans were approved on October 25, 2004 and accepted as built on October 26, 2005.
Plaintiffs refer to the median barrier upgrade as the “2003 upgrade.” The State refers to the upgrade as the “2004 upgrade, ” presumably because the plans for the upgrade were designed and approved in 2004. We refer to the median barrier upgrade as “the upgrade” or the “2004 upgrade.”
Each day, between 154, 000 and 181, 000 cars travel in both directions along Interstate 80 where the accident occurred. In the five years preceding the accident, there were no cross-median collisions where a car traveling eastbound crossed over the guardrail into westbound traffic. During this same time period, the Department of Transportation received no complaints concerning the location where the accident occurred.
Plaintiffs’ Opposition
In opposition to the State’s motion, plaintiffs contended the roadway constituted a dangerous condition without a barrier and that “the barrier installed by the State was inadequate to prevent the subject accident.” Plaintiffs’ theory was the roadway where the accident occurred was in a dangerous condition without a median barrier and that the installation of the barrier in place at the time of the accident did not constitute a reasonable safeguard against that danger. Plaintiffs argued that “an adequate median barrier” would have prevented the accident and that if the State had performed a trajectory analysis — as required by Traffic Bulletin No. 15 — it would have realized the “barrier alone was inadequate to prevent eastbound vehicles from crossing the median into westbound traffic.”
Plaintiffs supported their opposition with a lengthy declaration from their expert William Kunzman, who averred, among other things, that the barrier in place at the accident location “was not an adequate median barrier for errant eastbound vehicles. An adequate median barrier prevents an errant eastbound car... from entering westbound traffic.... [T]he barrier in place at the time of the... accident was not adequate because an errant eastbound vehicle, travelling the speed limit, could ramp up and over the barrier....” Kunzman explained that the Department of Transportation was required to conduct a “trajectory analysis” of the barrier at the accident location pursuant to Traffic Bulletin No. 15, and had the Department of Transportation conducted such an analysis, it would have determined the barrier was “not effective to prevent errant eastbound vehicles from crossing into westbound traffic.”
In his declaration, Kunzman quoted section 7-04.6 of the 1996 Caltrans Traffic Manual (Traffic Manual), which states, “where median cross-slopes are greater than 1:10, vehicle trajectory can affect barrier performance. Using the procedure outlined in Traffic Bulletin No. 15, the relationship between median and traveled way cross-slopes should be checked to ensure desired barrier performance.” Kunzman’s declaration also attached Traffic Bulletin No. 15, entitled “A Method for Checking the Integrity of Cable and Beam Barriers.” Dated April 25, 1967, Traffic Bulletin No. 15 addresses the problem of vehicles driving off of a highway and into a median embankment, becoming airborne, and launching over a barrier. It describes the procedure to test the effectiveness of a cable or beam barrier and recommends placing a metal beam barrier at the top of the median slope when a cable barrier is inadequate: “Convex configurations of pavement and median slopes cause vehicles running into the median to leave the ground. For this reason, it is necessary to ascertain whether the vehicle is back on the ground at the cable barrier location or whether it is necessary to raise one or both beams at beam barrier locations. [¶] When the cable barrier is considered for installation in medians whose cross[-]slopes are not in the same plane as the adjacent pavement slopes, it is necessary to determine whether the trajectory of the impacting vehicle from either side is within the 27 to 28 inch critical height of the cable.”
Traffic Bulletin No. 15 explains that “[w]hen using the [trajectory analysis] method outlined above, it is quite possible that there may be no convenient location within the median that would meet the criteria of the cable being no more than 28 inches above the ground for vehicles colliding from the low side and yet at least 27 inches above the vehicle trajectory for vehicles colliding from the high sides. In these cases, a staggered beam barrier as shown in Figure 2 should be used or a beam barrier should be placed at the top of the slope. If the amount of required beam staggering exceeds 12 inches, the beam barrier should be placed at the top of the slope instead.”
Kunzman conducted a trajectory analysis pursuant to Traffic Bulletin No. 15 and concluded the “barrier in place at the time of this incident was not effective to prevent errant eastbound vehicles from crossing into westbound traffic. The hinge point distance from the slope to the existing median barrier is approximately 5 feet.... [A] vehicle drops.21 feet within that 5 feet horizontal distance. At the 2-to-1 slope angle of this median, a vehicle traveling 65 mph will entirely clear the barrier except for its tires, which may clip a barrier post just as occurred in this accident. Consequently, the median barrier in existence at the accident location on the day of this accident was not a reasonable or sufficient median barrier for errant eastbound vehicles.”
Finally, Kunzman averred that “[t]he barrier that existed at the accident location... was not adequate to remedy this dangerous condition. One remedy for this dangerous condition is to place another barrier at the bottom of the slope adjacent to the edge of the travel way for eastbound traffic.” Kunzman noted that the Department of Traffic installed a barrier at the bottom of the embankment adjacent to the eastbound lanes of traffic after the accident.
Next, plaintiffs contended the State had notice of the dangerous condition because it failed to conduct a trajectory analysis pursuant to Traffic Bulletin No. 15. Plaintiffs also argued the State had notice of the condition because there were 11 accidents over a 44-month period where a vehicle traveling eastbound “crossed the median and struck the back of the... barrier.” According to plaintiffs, it is “certainly inferable that westbound vehicles strike the barrier at least as often as eastbound vehicles given the barrier’s closer proximity to the westbound lanes of travel.” Plaintiffs, however, acknowledged that in the five years preceding the accident, there were no “cross-median collisions” where a “vehicle crossed from the eastbound lanes [of traffic] to the westbound lanes” and conceded that the Office of Traffic did not have any record of receiving complaints about the area of the roadway where the accident occurred in the five years preceding the accident.
Of these accidents, one involved a person under the influence of alcohol, six involved an improper turn, and several involved speeding and other vehicle code violations.
Finally, plaintiffs argued the State was not entitled to design immunity because the median barrier installed as part of the upgrade was “not the median barrier called for by the design” and because the State did not obtain “formal approval” for the design deviation. (Original italics.) Plaintiffs noted that the upgrade plans called for the installation of a concrete barrier adjacent to the westbound lanes of traffic but that the State installed a metal thrie-beam barrier. Additionally, plaintiffs noted that the State “produced no evidence that written approval for the failure to follow Traffic Bulletin [No.] 15 was ever obtained.” Finally, plaintiffs argued the State was not entitled to design immunity because it did not offer “any evidence that the upgrade design went through Caltrans’ ‘design exception process, ’ which requires written approval of deviations from Caltrans standards.”
The State’s Reply
The State argued that the roadway where the accident occurred “was not dangerous as a matter of law.” First, the State explained that pursuant to section 835, the “roadway must be analyzed in the condition that existed at the time of the injury, and not in a hypothetical condition without a median barrier in place” and noted that “plaintiffs’ argument that the existence of a dangerous condition should be determined under a hypothetical in which there is no median barrier at the top of the slope is absolutely baseless.” Next, the State contended plaintiffs failed to show a triable issue of fact regarding notice of the allegedly dangerous condition because the accidents mentioned in plaintiffs’ opposition were factually dissimilar and because “[t]here were zero cross-median accidents from eastbound to westbound for the entire five-year period” preceding the accident. (Original italics.) As the State explained, the conditions on the day of the accident did not create a substantial risk of injury pursuant to section 830, subdivision (a).
Finally, the State argued it was entitled to design immunity. The State contended it established the first element — that there was a causal relationship between the layout or location of the barrier and the accident. Second, the State claimed both the original design for the roadway and the upgrade design were approved in advance of construction by employees with the requisite authority. Third, the State argued it established the third element of design immunity, the reasonableness of the approval of the original and upgrade plans for the roadway.
The Order Granting Summary Judgment
The court granted the State’s motion for summary judgment. The court concluded plaintiffs could not “meet the first element of a dangerous condition, that is, a condition of property that created a substantial risk of injury when the property was used in a foreseeable manner with due care.” Next, the court determined the “State did not create the dangerous condition. The original design of the highway in 1964 as built in 1966 met or exceeded design standards. The highway upgrade project met or exceeded all design guidelines and standards.”
Third, the court determined “[t]he State did not have actual or constructive notice of a dangerous condition prior to the subject accident.” The court found no actual notice because the State did not receive any complaints about the location in the five years preceding the accident. The court found no constructive notice because the State used various monitoring systems to identify locations with a history of cross-median accidents and these systems did not identify the location as having a history of such accidents. Finally, the court concluded the State was entitled to design immunity.
The court entered judgment for the State and plaintiffs timely appealed.
DISCUSSION
Standard of Review
A defendant moving for summary judgment must show either (1) one or more elements of the plaintiff’s cause of action cannot be established, or (2) there is a complete defense to that cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the moving party carries this burden, “he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Id. at pp. 850-851.)
We review the order granting summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940, original italics; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.)
Plaintiffs Created a Triable Issue of Fact Regarding the Existence of a Dangerous Condition of Public Property
“Under section 835, ‘a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [that]: [¶]... The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.’” (Avedon v. State of California (2010) 186 Cal.App.4th 1336, 1340-1341 (Avedon); see also 2 Van Alstyne et al., Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2011) Dangerous Condition of Public Property, § 12.5, pp. 864-865 (Tort Liability Practice) [listing essential elements of liability pursuant to section 835].)
“Section 830 defines ‘dangerous condition’ as ‘a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.’” (Avedon, supra, 186 Cal.App.4th at p. 1341.) “A condition is not a dangerous condition... if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.) Accordingly, before we may submit the issue of the existence of a dangerous condition to a trier of fact, our independent review requires us “to determin[e] that there is evidence from which a reasonable person could conclude that a substantial, as opposed to a possible, risk” of harm “is involved.” (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foll. § 830.2, p. 309.) “If... it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not ‘dangerous’ within the meaning of section 830, subdivision (a). [Citation.]” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 799, fn. omitted; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) The mere occurrence of an accident, by itself, does not constitute evidence that the property was in a dangerous condition. (§ 830.5, subd. (a); 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 259, pp. 428-429.)
The State contends summary judgment is appropriate based on the absence of prior similar accidents in the five years preceding the accident. We have no quarrel with the general proposition that “[t]he absence of prior accidents tends to prove that there is no substantial risk of injury.” (Tort Liability Practice, supra, § 12.20C(c); see also Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 483.) At least one court, however, has suggested that while “the absence of other similar accidents is ‘relevant to the determination of whether a condition is dangerous[, ]’ it is not necessarily “dispositive of whether a condition is dangerous, or that it compels a finding of nondangerousness absent other evidence.” (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346, original italics.)
The State contends two cases, McKray v. State of California (1977) 74 Cal.App.3d 59, 62 (McKray) and Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374 (Callahan) establish that summary judgment is appropriate where the defendant demonstrates — through the absence of similar accidents — that the condition posed no substantial risk of injury. In McKray, the plaintiff, a passenger in a car that drove off of the shoulder and hit a concrete abutment, sued the State of California and others. (McKray, supra, at p. 61.) The state moved for summary judgment and “filed declarations that no accidents had occurred on this highway section during the five and one-half years for which statistics were available, and that no complaints about this roadway had been received. It also showed that some 21 million cars had traveled the southbound lanes in that period and that, while there had been an increase in traffic, peak hour checks showed that at no time did traffic approach the designed capacity of the roadway.” (Id. at p. 62.) The trial court granted summary judgment, determining “the accident was due solely to the ‘pilot error’ of [the driver], and also that design immunity... barred the action as against the state.” (Ibid.) We affirmed, concluding, “[n]o reasonable person could conclude that any risk of injury existed to one using the highway ‘with due care in a manner in which it was reasonably foreseeable that it would be used.’... The record conclusively establishes that [the driver’s] negligence was the sole cause of plaintiff’s injury.” (Id. at p. 63.)
In Callahan, supra, 15 Cal.App.3d at page 379, we upheld the trial court’s grant of summary judgment, concluding as a matter of law that the traffic intersection at issue was not dangerous within the meaning of section 830. In Callahan, the plaintiff was a passenger in a car drag racing with two other cars on a street that ended in a T-intersection near Lake Merced. Traveling 60 miles per hour in “very heavy fog, ” the plaintiff’s car overran the intersection and went down an embankment. (Callahan, supra, at pp. 376, 377, 380.) There had been previous accidents at the intersection but none where a car overran the intersection. (Id. at pp. 377-378.)
We upheld summary judgment. We noted that 19 million vehicles had traversed the intersection in the four-and-one-half years before the accident and that none had overrun the intersection: “[t]he paucity of accidents occurring during this time clearly indicates that the intersection was a safe one except for drivers described by the witness here, i.e., ‘maniacal’ or driving at an excessive and hazardous speed.” (Callahan, supra, 15 Cal.App.3d at p. 379.) Additionally, we explained, “[t]here is further evidence not disputed by plaintiff which strengthens the City’s contention that careful drivers would not overshoot the end of Brotherhood Way even in a heavy fog. The three cars involved here were racing down Brotherhood Way. Two ran into the parking lot. However, [plaintiff’s] car went through logs, through a fence, down the embankment to Lake Merced. One was able to stop at the parking lot, and the third car was able to stop in the intersection without going into the parking lot. This third car was obviously traveling in exactly the same conditions except that it was going at a slightly slower speed. Considering this fact and the absence of similar accidents or complaints, it seems that the only conclusion reasonable men could draw is that this intersection under conditions of fog did not constitute a dangerous condition for drivers exercising due care.” (Id. at pp.379-380, italics added.)
Neither McKray nor Callahan supports the State’s contention that summary judgment is appropriate based solely on the lack of prior similar accidents. First — and in contrast to McKray and Callahan — the State did not contend Gelpke was negligent; instead, it contended the reason Gelpke’s car entered the median was “unknown.” Moreover, there was no evidence Gelpke was driving “maniacal[ly]” or “at an excessive and hazardous speed” as in Callahan. (Callahan, supra, 15 Cal.App.3d at p. 379.) Additionally, the conclusion we reached in both McKray and Callahan was not based solely on the lack of prior accidents, but on the lack of accidents together with undisputed evidence of the driver’s negligence.
To be sure, the State provided evidence of a lack of cross-median accidents in the five years preceding the accident at issue. The State also presented evidence in the form of two declarations that the 2004 upgrade complied with relevant safety standards. But plaintiffs presented evidence in opposition to the motion for summary judgment that the State failed to conduct a trajectory analysis required by Traffic Manual section 7-04.6 and described in Traffic Bulletin No. 15 when it designed and built the upgrade. At his deposition, engineer Yuri Zolotarevsky testified that he did not conduct a trajectory analysis at the accident location pursuant to Traffic Bulletin No. 15 to check “barrier integrity” because he believed Traffic Bulletin No. 15 applied only to situations where a car was traveling down a sloped median, not up a sloped median. Plaintiffs’ expert, however, averred that the State was required to conduct the trajectory analysis and that the analysis would have demonstrated the barrier would not prevent eastbound vehicles from vaulting over the barrier into westbound traffic. Plaintiffs also presented evidence that Au-Yeung, Chief of the Office of Traffic, conceded that section 7-04.6 of the Traffic Manual discussed design considerations for sloped medians and that when a topic is covered by the Traffic Manual, Department of Transportation employees are expected to follow the manual. The State’s expert, Edward Ruzak, did not opine on the applicability of Traffic Bulletin No. 15 and did not conduct a trajectory analysis.
In the trial court, the State argued Traffic Bulletin No. 15 did not apply to situations where a vehicle travels up a sloped median. But on appeal, the State takes a different tack: it contends Traffic Bulletin No. 15 applies only to cable barriers, which are obsolete. Alternatively, the State contends it complied with Traffic Bulletin No. 15 because it placed a metal beam barrier at the top of the median. The State relies on the following language in Traffic Bulletin No. 15: “When using the [trajectory analysis] method outlined above, it is quite possible that there may be no convenient location within the median that would meet the criteria of the cable being no more than 28 inches above the ground for vehicles colliding from the low side and yet at least 27 inches above the vehicle trajectory for vehicles colliding from the high sides. In these cases, a staggered beam barrier as shown in Figure 2 should be used or a beam barrier should be placed at the top of the slope. If the amount of required beam staggering exceeds 12 inches, the beam barrier should be placed at the top of the slope instead.” (Italics added.) The State notes that there was a metal barrier at the top of the embankment, adjacent to the westbound lanes of traffic. The problem with the State’s argument is that it overlooks the fact that the State did not conduct the trajectory analysis required by Traffic Bulletin No. 15.
We conclude plaintiffs presented evidence that the State did not follow applicable safety codes or standards with respect to the 2004 upgrade and that this evidence is sufficient to avoid summary judgment on this basis. (See Curreri v. City Etc. of San Francisco (1968) 262 Cal.App.2d 603, 608; Tort Liability Practice, supra, § 12.20E, p. 888.1 [“Evidence that applicable safety codes or standards were not followed in the construction or improvement of public property has also been deemed relevant but not necessarily conclusive on the question of its dangerous character”].) “In the trial court, issue finding, not issue determination, is the pivot on which summary judgment turns.” (Sambrano v. City of San Diego (2001)94 Cal.App.4th 225, 235.) The trial court therefore erred by granting summary judgment on the ground that plaintiffs “cannot meet the first element of a dangerous condition[.]”
We reject plaintiffs’ assertion that the State was required to prove the installation of a barrier adjacent to the westbound lanes of traffic constituted a “reasonable protective measure” pursuant to section 835.4, subdivision (b). Section 835.4, subdivision (b) provides a defense to liability where the public entity establishes the “action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable.” That statute provides a defense after plaintiffs have established liability pursuant to section 835. (Metcalf v. City of San Joaquin (2008) 42 Cal.4th 1121, 1137; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202.)
Plaintiffs Created a Triable Issue of Fact Regarding Whether the State Had Notice of the Dangerous Condition Pursuant to Section 835.2
“In addition to a showing of dangerous condition and proximate cause, the plaintiff must establish one of two types of culpable conduct that justify the imposition of liability. The first is that the dangerous condition be created by “‘[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment.’” (5 Witkin, supra, Torts, § 270, p. 446, quoting § 835, subd. (a).) “[T]he second and more common basis of liability is that the public entity had ‘actual or constructive’ notice of the dangerous condition ‘a sufficient time prior to the injury to have taken measures to protect against’ it.” (5 Witkin, supra, Torts, § 271, p. 446, quoting § 835, subd. (b).)
Plaintiffs contend they created a triable issue of fact regarding whether the State negligently or wrongfully created the dangerous condition. We agree. Plaintiffs established that the engineer who designed the 2004 upgrade negligently failed to comply with the State’s safety standards as set forth in section 7-04.6 of the Traffic Manual and Traffic Bulletin No. 15. Plaintiffs’ expert demonstrated that a trajectory analysis conducted pursuant to Traffic Bulletin No. 15 would have shown “that the median barrier system in place at the time of the accident was inadequate” to “prevent an eastbound vehicle from launching over the barrier and into westbound traffic.”
For these same reasons, plaintiffs created a triable issue of fact regarding whether the State had “constructive notice of the dangerous condition and that such notice was received a sufficient time before the injury to allow [it] to take measures to protect the [decedent].” (Tort Liability Practice, supra, § 12.45(2), p. 922.) A plaintiff establishes constructive notice by proving the dangerous condition existed “for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (§ 835.2, subd. (b).) Plaintiffs created a triable issue on whether the State had constructive notice that the roadway was in a dangerous condition because it failed to conduct a trajectory analysis pursuant to Traffic Bulletin No. 15. As discussed above, the trajectory analysis would have revealed that the barrier adjacent to the westbound lanes of traffic was inadequate to prevent a cross-median accident like the one that occurred here. (§ 835.2, subd. (b).)
Plaintiffs Created a Triable Issue of Fact on the Second Element of Design Immunity
Section 830.6 sets forth the design immunity defense, which provides that a public entity is not liable for a dangerous condition of public property where the public entity establishes: “(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.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69 (Cornette).)
Section 830.6 provides in relevant part: “Neither a public entity nor a public employee is liable... 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.”
The second element of design immunity — discretionary approval of the plan or design prior to construction — is at issue here. “The second element, discretionary approval prior to construction, ‘simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.’ [Citation.] 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 v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)
As noted above, the configuration of Interstate 80 at the accident location was designed in 1964 and built in 1966. In support of its motion for summary judgment, the State provided evidence that engineers designed the roadway by, among other things, specifying the layout and location of the barrier at the top of the median, adjacent to the westbound lanes of traffic. The State also offered evidence that the district engineer and the engineer of design signed and approved the original design of the highway at the accident location. Additionally, the State provided evidence that the civil engineer who prepared the 2003 project report — which proposed and described the upgrade to the barrier at the accident location — signed the report, as did the project manager. Finally, the State established that the upgrade design plans were signed by the design engineer on July 26, 2004, approved on October 25, 2004 and accepted as built on October 26, 2005.
In opposition to the motion for summary judgment, however, plaintiffs presented evidence that the State did not comply with section 7-04.6 of the Traffic Manual or Traffic Bulletin No. 15. Plaintiffs also offered evidence that when design engineers propose to deviate from the Traffic Manual, they must obtain written approval to do so by going through a “design exception process.” The State did not provide any evidence that Zolotarevsky went through a “design exception process” to obtain any such approval to deviate from the Traffic Manual. Additionally, the State did not provide any evidence that Zolotarevsky or anyone else obtained written approval to install a metal thrie-beam barrier rather than the concrete barrier called for in the design plans.
Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 387-388, is instructive. There, the plaintiffs sued the Department of Transportation after their car went off of the side of a freeway off-ramp. The plaintiffs alleged the lack of a guardrail constituted a dangerous condition of public property. (Id. at p. 379.) In support of its motion for summary judgment, the Department of Transportation presented evidence that the off-ramp “was part of a construction project designed in the late 1960’s and completed in May 1971. The off-ramp was built as designed without guardrails at the location where [plaintiffs’ car] left the roadway. The design plan shows the existence of the embankment, its approximate height and slope and the locations where guardrails were to be placed—a total of 875 feet of guardrail along the 1575-foot ramp, 600 feet of railing at the top of the ramp and 275 feet at the bottom. Caltrans also produced the certified ‘as-built’ plans signed by officials with authority to approve them. Caltrans’s expert testified to the normal approval process utilized by Caltrans when the project was designed and opined that the signatures on the as-built plans indicate that the individuals who signed had approved the design contained in the plans prior to construction of the off-ramp.” (Id. at p. 380.)
In opposition to the summary judgment motion, the plaintiffs presented evidence that the “off-ramp as designed violated Caltrans’s then applicable guardrail-installation guidelines, which, according to [the plaintiffs’] expert, required installation of an embankment guardrail along the entirety of the ramp under the analysis prescribed by the state’s ‘guardrail need determination curve.’ Any deviation from the applicable guidelines required the designer to obtain formal approval, which would be recorded in a ‘project approval document.’ [The plaintiffs] noted (and Caltrans did not dispute) that no ‘project approval document”’ for the off-ramp could be located. At his deposition Caltrans’s expert acknowledged that he did not know whether any of the three engineers who signed the as-built plans actually considered the guardrail installation guidelines and approved the purported deviation from the guidelines’ requirements.” (Hernandez, supra, 114 Cal.App.4th at pp. 380-381, fn. omitted.)
The trial court granted Caltrans’s motion for summary judgment “on the ground of design immunity.” (Hernandez, supra, 114 Cal.App.4th at p. 381.) The appellate court, however, reversed, concluding “triable issues of fact exist as to the second element of the design immunity defense.” (Id. at p. 388.) The Hernandez court explained that “[c]onflicting evidence was 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. Under the rationale of Cornette, supra, 26 Cal.4th at pages 72 to 74, the trial court’s order granting summary judgment in favor of Caltrans based on inferences drawn from conflicting evidence was error.... Indeed, even if we were to conclude that the second element of the design immunity defense is properly determined by the court, rather than a jury, this patently factual question—were the design plans in fact approved by authorized Caltrans officials—cannot properly be decided on summary judgment when conflicting evidence has been presented.” (Hernandez, supra, 114 Cal.App.4th at p. 388.)
Levin v. State of California (1983) 146 Cal.App.3d 410, 418 (Levin) — where the Court of Appeal reversed the trial court’s grant of summary judgment in favor of the State of California — is also on point. There, the plaintiff’s decedent was hit by another car and went off of the roadway and down an embankment. (Id. at pp. 414-415.) Shortly before the accident, the state put in a passing lane that eliminated several feet of the shoulder, and the plaintiff argued there should have been a guardrail at the location. (Id. at p. 416.) In its motion for summary judgment, the state presented evidence that a consultant who worked on the design specifically considered the installation of the guardrail and recommended against it, as well as evidence that J.A. Legarra, the deputy highway engineer, approved the design and that he had the authority to do so. (Id. at p. 417.) The Court of Appeal concluded the state failed to establish discretionary approval, the second element of the design immunity defense. (Id. at p. 418.) The court explained, “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 [design immunity] defense.” (Ibid.)
The same is true here. As in Hernandez and Levin, plaintiffs presented evidence that the State deviated from applicable safety standards — the Traffic Manual and Traffic Bulletin No. 15 — without obtaining written permission to so. Au-Yeung testified that the Traffic Manual applied to the accident location and that design engineers who propose to deviate from the Traffic Manual must obtain written approval to do so by going through a “design exception process.” Zolotarevsky did not perform a trajectory analysis pursuant to Traffic Bulletin No. 15 because he did not believe it applied to the accident location, and the State did not provide any evidence that Zolotarevsky went through a “design exception process.” Additionally, the State did not provide any evidence that Zolotarevsky or anyone else obtained written approval to install a metal thrie-beam barrier rather than the concrete barrier called for in the design plans.
In its brief, the State does not address Hernandez or Levin or attempt to distinguish these cases. Because plaintiffs produced evidence that raises a triable issue of fact regarding the discretionary approval element of the design immunity defense, the court erroneously granted the State’s motion for summary judgment on this basis. (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1522 [“A defendant moving for summary judgment must show that the plaintiff... cannot refute an affirmative defense established by the defendant”].)
DISPOSITION
The judgment is reversed.
We concur: Simons, J., Needham, J.