Opinion
F061165 Super. Ct. No. 150757
08-19-2011
HAROLD JOHNSON et al., Plaintiffs and Appellants, v. CITY OF MERCED, Defendant and Respondent.
Canelo, Wilson, Wallace & Padron and Kenneth R. Mackie for Plaintiffs and Appellants. Arata, Swingle, Sodhi & Van Egmond and Colleen F. Van Egmond for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Edward M. Ross, Judge. (Retired Judge of the Los Angeles Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Canelo, Wilson, Wallace & Padron and Kenneth R. Mackie for Plaintiffs and Appellants.
Arata, Swingle, Sodhi & Van Egmond and Colleen F. Van Egmond for Defendant and Respondent.
Appellants Harold Johnson and Linda Johnson (collectively the Johnsons) appeal the summary judgment in favor of respondent City of Merced (hereafter City). The Johnsons were severely injured when their motorcycle struck an unmarked six-inch-high roadway median at night. The trial court granted summary judgment to City pursuant to Government Code section 830.6, finding City had established it was entitled to design immunity and immunity under sections 830.4 and 830.8. The Johnsons contend City is not entitled to immunity under sections 830.4, 830.6, or 830.8 because City effectively altered the design years after the median was constructed by removing and not replacing warning devices called for in the original design and the median created a dangerous condition.
All further statutory references are to the Government Code unless otherwise stated.
The evidence submitted in support of the summary judgment motion failed to establish that City was entitled to design immunity under section 830.6 as a matter of law. We also conclude City has not established as a matter of law that it is entitled to immunity under section 830.4 or 830.8. Consequently, we will reverse the summary judgment.
FACTUAL AND PROCEDURAL SUMMARY
On October 26, 2007, the Johnsons filed a civil action against City arising from a vehicular accident on February 17, 2007. The complaint alleged the Johnsons were injured "when the motorcycle they were riding collided into a poorly maintained traffic median." The complaint further alleged:
"Defendant failed to properly maintain said median in that said median had severely degraded reflective paint at the edges rendering it's [sic]reflective properties useless. The reflective buttons surrounding the perimeter of the median had all been severely degraded, damaged or completely removed prior to the accident. The 12[-]inch reflective strip attached to, and extending perpendicularly from, the leading edge of the median had beenThe complaint went on to allege that the median was a dangerous condition; the dangerous condition created a reasonably foreseeable risk of injury to persons; and City had notice of the dangerous condition for a substantial period of time and had ample opportunity to correct the dangerous condition. City filed an answer to the complaint asserting the Johnsons had not exercised due care and that City was entitled to immunity under sections 830.4, 830.6, and 830.8.
removed at the time of the accident. Moreover, the design of the median, which extended into the number one lane of westbound Olive in an arcing fashion necessitated that the median be highly visible at night."
On May 7, 2010, City filed a motion for summary judgment. City alleged it was immune pursuant to sections 830.4, 830.6, and 830.8. Alternatively, City argued (1) if immunity did not apply, City had no notice of the median as a dangerous condition; (2) the Johnsons did not use due care; and (3) any defect was trivial as a matter of law.
In their opposition to the motion for summary judgment, the Johnsons asserted that City did not have immunity, including design immunity, because (1) the median had been altered after legislative approval and had not been maintained properly; (2) removal of warning signs created a dangerous condition; and (3) the dangerous condition was not trivial.
In responding to City's statement of undisputed facts, the Johnsons admitted some facts and denied others. It was admitted that on February 17, 2007, at approximately 7:45 p.m., (1) the Johnsons' motorcycle struck the median at the intersection of Olive Avenue and G Street in Merced; (2) at the time of the accident it was dark; and (3) the concrete median was about six inches tall, approximately three and one-half feet wide at the east end, and narrowed to three-quarters of a foot at the other end. The Johnsons also admitted that the design of the median was approved by the Merced City Council on August 19, 1996. Most of the other relevant facts were disputed, including whether the median was constructed in accordance with the approved design. Whether the design plan called for reflective paint, in-ground reflectors, and/or signs was in dispute.
The Johnsons' opposition to the summary judgment motion claimed City had not proven it was entitled to design immunity because the median was not constructed or maintained according to the approved design. The Johnsons further contended that the alteration to the approved design by the removal of signage and other warning devices was done without approval of the legislative body.
If design immunity had attached, the Johnsons contended City lost immunity by failing to maintain the median as designed and negligently maintaining the median. Also, at the time of the accident, the median constituted a dangerous condition. As part of their opposition to the motion for summary judgment, the Johnsons set forth their own separate statement of undisputed facts.
In response to the Johnsons' separate statement of undisputed facts, City admitted some and denied others. Many of the denials were on the basis that the alleged undisputed fact was irrelevant. City admitted that plans to redesign the intersection where the accident had occurred were signed on January 14, 1997, and that the modified plans called for a "Type K" object marker to be placed at the easterly end of the median. It also was undisputed that City had the responsibility of maintaining object markers on medians.
City's reply to the Johnsons' opposition contended that the Johnsons had failed to dispute City's immunity under sections 830.4 and 830.8; therefore, even if design immunity was inapplicable, summary judgment should be granted. City also filed evidentiary objections to some of the evidence submitted by the Johnsons in support of their opposition to the motion.
At the hearing on City's motion for summary judgment, City raised additional objections to the evidence submitted by the Johnsons in opposition to the motion. The Johnsons requested permission to file a response to the written evidentiary objections previously raised by City, which response had been faxed to City's attorney the day prior to the hearing.
City objected on the basis that under the Code of Civil Procedure, the Johnsons were not entitled to respond to points made by City in its reply. The Johnsons countered that they were not seeking to file anything further on legal arguments that had been raised by the motion for summary judgment, but wanted only an opportunity to respond to the evidentiary objections raised for the first time by City in its reply to the opposition.
The trial court stated the parties were "getting a little bit lost in the myriad of declarations" and once the median was designed and constructed, design immunity was in place. The trial court did not rule on the evidentiary objections.
City conceded that the design for the median called for a Type K warning sign to be erected on the median. City argued that regardless of what the design plans for the median specified, City was immune because sections 830.4 and 830.8 provided immunity for failure to erect warning signs.
The trial court found that "the City doesn't have very good recordkeeping." The trial court also concluded that the case was "past design immunity" and the issue was maintenance because negligent maintenance "overrides design immunity." The trial court found that City's employee in charge of maintaining traffic signs in the area of the median had removed the sign in 2005 without replacing it, and there was an "inadequate" notation in City's records that the sign had been replaced in May 2006.
The trial court later concluded that even if there had been negligence on the part of City, "there is immunity to the City"; no showing was made that City had knowledge of any prior accidents arising from the condition of the median; and section 830.4 and 830.8 immunities applied. Counsel for City was directed to prepare findings, conclusions, and a judgment.
The order on motion for summary judgment signed by the trial court found that City had no "actual notice" of the "purported dangerous condition" of the median and therefore owed no duty to the Johnsons. The order concluded that City was entitled to immunity under sections 830.4, 830.6, and 830.8.
The order on motion for summary judgment filed August 4, 2010, is a nonappealable order. (Code Civ. Proc., § 904.1 subd. (a)(1); Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761 & fn. 7.) Here, no judgment appears in the record. City, however, did not move to dismiss the appeal or raise any issue regarding the appealability of the order. Therefore, in the interests of justice and in order to avoid delay, we will construe the order on motion for summary judgment as incorporating an appealable judgment and the notice of appeal as appealing from such judgment. (Levy v. Skywalker Sound, at pp. 761-762 & fn. 7.)
DISCUSSION
We must determine whether City was entitled to summary judgment. The Johnsons contend City has not established entitlement to design immunity or immunity under sections 830.4 and 830.8. City claims it has established that it is entitled to all three Government Code immunities as a matter of law.
I. Standard of Review for Summary Judgment
The legal principles we apply when reviewing a motion for summary judgment are well established. (See Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar); Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley)[describing the three-step analysis used by this court to analyze motions for summary judgment].) We independently review whether a triable issue of material fact exists or whether the moving party is entitled to summary judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 (Merrill).)A triable issue of fact exists when the evidence reasonably would permit the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Aguilar, at p. 850.)
The first step is to "identify the issues framed by the pleadings" because the motion is directed to the opponent's allegations and to "[show] there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.]" (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see also Brantley, supra, 42 Cal.App.4th at p. 1602.)
The second step involves determining whether the moving party has satisfied its initial burden of producing evidence "to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850; see also Brantley, supra, 42 Cal.App.4th at p. 1602.) A defendant moving for summary judgment must establish "[a] cause of action has no merit." (Code Civ. Proc., § 437c, subd. (o).) A moving party defendant bears the burden of persuasion that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Id., subd. (p)(2); Aguilar, at p. 850.)
Often, the evidence relied upon by the moving party does not establish the material facts directly. In those situations, the rules regarding when a material fact is established by inference come into play. The broadest of these rules mandates that "the court shall consider all of the evidence set forth in the [moving party's] papers ... and all inferences reasonably deducible from the evidence." (Code Civ. Proc., § 437c, subd. (c).)
When considering what inferences to draw, we must analyze the evidence in the light most favorable to the party opposing the motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 843.) Furthermore, an issue of material fact may not be resolved based on inferences if contradicted by other inferences or evidence. (§ 437c, subd. (c); Aguilar, at p. 856.)
If the moving party has met its burden, then we proceed to the third step of determining whether the opposition has demonstrated a triable issue of material fact. (Brantley, supra, 42 Cal.App.4th at p. 1602.)
The California Supreme Court summarized the applicable law on summary judgment in Merrill, supra, 26 Cal.4th at pages 476-477:
"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings ... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action ....' [Citations.]"
II. Design Immunity
The Johnsons alleged in their complaint that the median constituted a dangerous condition. Section 835 sets forth a public entity's liability for a dangerous condition. Section 835 provides:
"Except as provided by statute, 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 either:
(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) 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."
A public entity is liable for injury proximately caused by a dangerous condition of its property "if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures. [Citation.]" (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68, fn. omitted (Cornette); see also § 835, subd. (b).) The public entity, however, may escape liability by establishing what is known as "'design immunity.'" (Cornette, at p. 69.) Section 830.6 design immunity provides immunity to a claim of a dangerous condition under section 835. Section 830.6 states in 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."
Design immunity is intended to prevent a jury from simply reweighing the same factors already considered by the governmental entity that approved the design. (Baldwin v. State of California (1972) 6 Cal.3d 424, 434 (Baldwin), superseded by statute as stated in Cornette, supra, 26 Cal.4th at p. 71; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 524-525 (Ramirez).)"'"[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.]" (Cameron v. State of California (1972) 7 Cal.3d 318, 326 (Cameron).)
A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; and (3) substantial evidence supporting the reasonableness of the design. (Cornette, supra, 26 Cal.4th at p. 69; Higgins v. State of California (1997) 54 Cal.App.4th 177, 185 (Higgins).
"Design immunity is an affirmative defense often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law. [Citation.] The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation.] The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence. [Citation.] We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. [Citations.]" (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940, fns. omitted (Grenier).)
Causal relationship
The first element of design immunity -- a causal connection between the plan and the accident -- requires proof that the alleged design defect was responsible for the accident, as opposed to some independent cause. (Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 185.) "[B]y force of its very terms design immunity is limited to a design-caused accident. Stated otherwise, it does not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident [citations]." (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575 [no design immunity where flooding was caused in part by poor maintenance and clogging of drainage system]; De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 747-748 [no design immunity where the city failed to show the installation or placement of stop sign at location partially obscured by shrubbery was part of an approved plan or design].)
In this case, the trial court's order on the motion for summary judgment, which was prepared by counsel for City, states a finding that there was no causal relationship between the injuries suffered by the Johnsons and the design of the median. While City argues on appeal that the inclusion of the word "no" in the order is a typographical error, it is undisputed that City prepared the order. City also contends on appeal that the Johnsons' injuries were due to a lack of due care on the part of the Johnsons, not the median design. It is undisputed that the trial court stated during the hearing on the summary judgment motion:
"The original design had the same reflective marker to warn oncoming traffic about the existence of the median, but that's not really what caused the accident. What caused the accident was him simply moving to the left -- I guess it would be out of the established roadway and into the median which caused him to flip and therefore led to the injury."
Under these facts, it is unclear whether the inclusion of the word "no" before "causal relationship" is a typographical error; City never sought any correction of the order. Assuming arguendo that the trial court's intended finding was that there was a causal relationship between the design of the median and the Johnsons' injuries, City failed to establish the second and third elements of design immunity.
Discretionary approval
The second requirement for design immunity -- discretionary approval of the design or plan prior to construction -- "simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. [Citation.]" (Ramirez, supra, 192 Cal.App.3d at p. 526.) Thus, design immunity does not immunize design decisions that were not made. (Cameron, supra, 7 Cal.3d at p. 326; Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 185.)
That a design for the median was approved by the city council on August 19, 1996, was not disputed by the Johnsons. The exact plan or design of the median, and whether the median was in conformance with that plan or design at the time of the Johnsons' accident, was disputed. The minutes of the city council meeting at which a median at the intersection of Olive Avenue and G Street was approved did not specify which plan or design of the median was adopted.
The deposition testimony of Ronald Daugherty, a street light/traffic signal technician who worked for City, submitted in support of the motion for summary judgment, was that City followed the state's Manual for Uniform Traffic Control Devices.
The declaration of Robert M. Shanteau, a traffic engineer, submitted in opposition to the motion, stated he had reviewed (1) Daugherty's deposition, (2) the state's traffic manuals in effect for 1996 and 2006, (3) photographs of the site of the accident, and (4) all the evidence submitted by City in support of its motion for summary judgment. Shanteau declared that the markings and warning devices on and near the median were not in conformance with the manual that Daugherty stated City followed, either at the time of construction or at the time of the accident.
During argument on the motion for summary judgment, City conceded that the plans for the median included a requirement for a sign known as a Type K marker. City also conceded that the Type K marker was removed by Daugherty, at the direction of the city attorney. The Johnsons maintained that additional warning devices, as called for by the traffic manuals in effect in 1996 and 2006, were required but not present and that the removal of the Type K marker was not authorized by any legislative body. City's position was that no additional warning devices were required and, even though the plans may have called for a Type K marker, installation of that marker was not "mandatory."
The evidence submitted in support of City's summary judgment motion consisted primarily of a declaration from City's trial counsel, Colleen F. Van Egmond of Arata, Swingle, Sodhi & Van Egmond. Attached to her declaration were various documents. Counsel averred that two documents, a 1996 planning department initial study and a copy of the minutes of the city council meeting of August 19, 1996, were maintained by City as regular business documents and that both documents had been attached to the deposition of a John Franck.
Counsel also attached several pages of a deposition taken of Franck. The pages of Franck's deposition did not identify his connection to City or set forth whether he was qualified to authenticate any business records of City. Although it is clear that Franck was being questioned about a document or documents during his deposition, the Franck deposition pages attached to Van Egmond's declaration did not clearly identify the documents or at any point disclose that Franck authenticated any documents.
Under Evidence Code section 1271, a document is admissible if it is maintained in the regular course of business and several other conditions are met, including that "The custodian or other qualified witness testifies to its identity and the mode of its preparation." (Id., subd. (c).) Van Egmond was not the custodian of records for City; there was nothing in her declaration that established she was qualified to authenticate the documents, and the pages from Franck's deposition did not contain an authentication of these documents.
The minutes established that the city council, by a 4-to-3 vote, approved an amendment to City's general plan affecting the intersection of Olive Avenue and G Street as outlined in the administrative staff report dated August 13, 1996. The administrative staff report dated August 13, 1996, was not attached to the minutes.
The reports and studies attached to Van Egmond's declaration purport to be initial study #96-03 dated March 27, 1996, a memorandum dated October 12, 1992, from transportation consultants Fehr & Peers Associates, Inc., and a traffic impact study dated August 17, 1992, prepared by Fehr & Peers Associates, Inc. The 1992 traffic study included three alternatives for a median at the intersection of Olive Avenue and G Street. Van Egmond's declaration did not have any attached document that purported to be an administrative staff report dated August 13, 1996.
Even if we were to accept Van Egmond's declaration and all attachments to her declaration as properly admissible evidence, those documents did not include the August 13, 1996, staff report that presumably set forth the design of the median and provided support for the reasonableness of the design. Without this documentation, City has not met its burden of proving legislative approval of the design of the median prior to its construction, the reasonableness of the design that was approved, or that the median was maintained in accordance with the approved design.
The only evidence before the trial court at the time of the summary judgment motion was that City followed the state's Manual for Uniform Traffic Control Devices (per Daugherty's deposition), and that the warning signs and markings at the median were not in conformance with the manual in effect in 1996 or 2006 (per Shanteau's declaration).
If, as was indicated at the hearing on the motion, City's recordkeeping was poor and the August 13, 1996, staff report was not available, and definitive records showing the plan approved by the city council were not maintained or were not produced, then the discretionary approval element of design immunity cannot be established as a matter of law. Under these circumstances, discretionary approval is a factual issue to be determined by the trier of fact. (Grenier, supra, 57 Cal.App.4th at pp. 939-940.)
If the median was not constructed in strict accordance with the plans approved by the city council, or if there were any deviations from the original plans that were not approved by the responsible legislative body, or if there was conflicting evidence on this point, there is a triable issue of material fact to be decided by a jury. In Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, the court held that discretionary approval was not shown when "[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." (Id. at p. 388.)
Reasonableness of design
The third element necessary to establish design immunity, substantial evidence of the reasonableness of the design, is not present as it cannot be addressed until City has established what design was approved and adopted by the city council on August 19, 1996.
Conclusion
The Johnsons denied that the median was constructed according to the plans approved by the city council. When City fails to submit competent evidence of the plans that were approved, it has failed to establish that it is entitled to summary judgment. Causation and discretionary approval are established as a matter of law only when there is no dispute as to the facts. (Grenier, supra, 57 Cal.App.4th at pp. 939-940.)
Having failed to provide competent evidence that the median was constructed in accordance with the plans approved by the city council, City has failed to establish that design immunity pursuant to section 830.6 attached.
Although we have concluded City failed to establish all three elements entitling it to design immunity as a matter of law, we address the other issues raised in the appeal since City contends it is entitled to immunity under other provisions of law if design immunity does not apply.
III. Loss of Design Immunity
"Design immunity under section 830.6 is not perpetual but may be lost as a result of changed circumstances which subsequently render the improvement dangerous." (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 598.) "[T]he Legislature did not intend that public entities should be permitted to shut their eyes to the operation of a plan or design once it has been transferred from blueprint to blacktop." (Baldwin, supra, 6 Cal.3d at p. 427.)
If we accept as true City's position that the median was constructed in strict accordance with the plan approved by the city council on August 19, 1996, and the plans called for a Type K marker, then, at a minimum, in order to retain design immunity, the Type K marker would have to remain on the median, unless the legislative body authorized a change in the design. Design immunity does not immunize design decisions that are not made by the legislative body. (Cameron, supra, 7 Cal.3d at p. 326; Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 185.)
City concedes that the Type K marker was removed and contends the removal of the sign was at the direction of the city attorney. City also contends, however, that the sign was replaced at a later point in time, but prior to the Johnsons' accident. The evidence does not support a finding that the Type K marker was replaced. Daugherty testified that an R4-7 warning sign was removed from the median in October 2005 and not replaced. Daugherty then stated that there was a notation in the records that in 2006 a Type Q marker was installed. There was no mention in the deposition pages attached to the summary judgment motion that a Type K marker was installed and maintained.
The Johnsons argued that removal of the Type K sign at the direction of the city attorney was not the equivalent of approval of a modification to the design of the median by a legislative body. City adopted the position that requiring approval of a legislative body for subsequent changes to the plans, such as removal of signs, was "absolutely preposterous."
Changes to a median design are not necessary in order to retain design immunity, as a change in engineering standards does not constitute a change of condition leading to loss of design immunity (Dole Citrus v. State of California (1997) 60 Cal.App.4th 486, 493) and technological advances in design and engineering do not constitute a change in physical condition (Sutton v. Golden Gate Bridge Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1162-1163).
While City is to be commended if its intent is to comply with current traffic control device standards, as they may be modified over time, in order to rely on design immunity, it must establish that the change in design was made by the legislative body or another public officer exercising discretionary authority to give such approval and that the exercise of discretion was reasonable. (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 728.)
The city council apparently was the body legally vested with discretionary authority in 1996 when it approved changes to the intersection, including the construction of a raised median. City has failed to provide evidence that the city council delegated discretionary authority over design changes to any other department or public official, including the city attorney. If a delegation of authority was made, it should have been reflected in the minutes, a city policy, or some other documentation, none of which was included in the summary judgment motion.
If, as Daugherty testified in his deposition, City follows the Manual for Uniform Traffic Control Devices, as that manual may be modified over time, then City would have to establish compliance with that manual, if that is the discretionary design decision, in order to establish design immunity. As Shanteau's declaration stated, the median was not in compliance with the provisions of the applicable manual for 1996 or 2006 in numerous respects.
Therefore, assuming City established entitlement to design immunity at the time the median was constructed, City did not establish entitlement to continued design immunity when the signage called for in the approved plan was altered and there was no evidence the alteration in the design was approved by the legislative body or that the city council delegated its discretionary authority to another public official.
IV. Dangerous Condition -- Other Immunity
The Johnsons alleged in their complaint that the median constituted a dangerous condition. A public entity's liability for a dangerous condition is set forth in section 835. Briefly, section 835 requires (1) a dangerous condition, (2) a negligent or wrongful act or omission by a public entity, and (3) actual or constructive notice of the dangerous condition a sufficient time prior to the accident to have taken steps to alleviate the dangerous condition. Whether public property is in a dangerous condition is most often a question of fact. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1344 (Lane).)
Section 830.6 provides immunity for a public entity for an otherwise dangerous condition. We have concluded, however, that City failed to establish entitlement to design immunity at the time of the Johnsons' accident.
City also argued in the trial court that if design immunity was inapplicable, it had immunity under sections 830.4 and 830.8 for any purportedly dangerous condition created by the lack of signage at the median. We conclude City has failed to establish entitlement to immunity as a matter of law under either of these code sections.
The order on the summary judgment motion held City had immunity under both sections 830.4 and 830.8, in addition to 830.6, because City was under no obligation to place warning signs or markers at or about the median. The trial court also found that City had no actual notice of the purported dangerous condition created by an unmarked raised median.
Section 830.4 states:
"A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code."
Vehicle Code section 21460 addresses double yellow lines or raised markings.
Section 830.8 states:
"Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care."
Section 830.4 provides a shield against liability only in those situations where the alleged dangerous condition is based solely on the entity's failure to install traffic signs. If a traffic intersection is dangerous for other reasons, section 830.4 provides no immunity. (Paz v. State of California (2000) 22 Cal.4th 550, 564 (dis. opn. of George, C.J.); Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534-1535 (Washington).)
Section 830.8 also was intended to prevent the imposition of public entity liability based solely on the failure to provide traffic regulatory or warning signals or devices. If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signals or street markings, the statute provides no immunity. (Washington, supra, 219 Cal.App.3d at pp. 1536-1537.)
In Flournoy v. State of California (1969) 275 Cal.App.2d 806 (Flournoy),the state constructed a bridge. The water "under the bridge caused moisture to condense on the bridge, and in cold weather the wind caused ice to form on the said bridge." (Id. at p. 808.) Numerous accidents occurred as the result of the icy conditions and the state had notice of this. Flournoy died as a result of an accident caused by the icy condition on the bridge. Her heirs sued, claiming the state maintained the bridge in a dangerous condition. (Id. at pp. 807-808.) The state claimed design immunity and the trial court granted summary judgment in favor of the state. The appellate court found error.
The appellate court in Flournoy determined the design of the bridge or road could not be viewed as the cause of the accident; the plaintiffs' claim was based upon an affirmatively negligent act (the creation of a dangerous condition) and a passively negligent omission (failure to post a warning sign of the dangerous condition). The state argued that design immunity "'prevails' over any liability for a dangerous condition of public property ...." (Flournoy, supra, 275 Cal.App.2d at p. 811.) The appellate court rejected this argument, basing its conclusion on the underlying premise that design immunity is limited to a design-caused accident. (Ibid.)
In Cameron, supra, 7 Cal.3d 318, the California Supreme Court tackled the question whether plaintiffs' claim based on a dangerous condition was subsumed by design immunity. In Cameron, Daniel Graham was driving his car on Highway 9 when he drove around a curve which was superelevated. His car went out of control and crashed; his passengers were injured. (Id. at p. 321.) The Supreme Court found that design immunity could apply to the design of the curve of the road, but the court went on to consider whether design immunity would immunize the state for its concurrent negligence in failing to warn of the dangerous condition. Relying on Flournoy, the Supreme Court found that the plaintiffs were entitled to go to the jury on the question of a dangerous condition.
"In the case at bench, as in Flournoy, there is active negligence alleged (the creation of the dangerous condition, namely uneven superelevation) and passive negligence (failure to warn of the dangerous condition) of a single defendant, the state. Here, as in Flournoy, the passive negligence alleged is independent of the negligent design." (Cameron, supra, 7 Cal.3d at p. 328.)
Here, City's installation of the median is factually similar to Flournoy and Cameron. It was not solely the lack of signage that allegedly created the dangerous condition. The dangerous condition alleged by the Johnsons was the six-inch-high raised median, coupled with a lack of warning signs. The active negligence was the creation of a raised median; the passive negligence was the failure to install and maintain signage warning of the danger. (Cameron, supra, 7 Cal.3d at p. 328; Flournoy, supra, 275 Cal.App.2d at p. 811.)
We disagree with the trial court's conclusion that City had no actual notice of the purported dangerous condition and therefore owed no duty to the Johnsons. It is not required that City have actual notice; constructive notice is sufficient. (§ 835, subd. (b).) "'[C]onstructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the [public entity], in the exercise of reasonable care, to discover and remedy the situation ....' [Citations.]" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 842-843 [regarding constructive notice under sections 835 and 835.2].) The questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are questions of fact. (Ibid.)
The Johnsons submitted declarations from two competent witnesses stating that warning signs had been missing from the median for at least 60 days prior to the accident. City's employee, Daugherty, who was responsible for installing and maintaining the warning signs in the area where the median was located, stated in his deposition that he lived near the intersection where the median was located. As Shanteau's declaration pointed out, Daugherty acknowledged that the median had "chipping" and that he, Daugherty, had responded to accidents at the median. A trier of fact might determine that these facts were sufficient for City to have constructive notice of the dangerous condition and to have taken steps to remedy the dangerous condition.
Apparently, in an attempt to establish that the median was not a dangerous condition or that City had no notice of the dangerous condition, City submitted a declaration from Lance Eber, a crime analyst employed by Merced's police department. Eber's declaration stated that Merced police officers prepare reports on accidents; some accident reports are entered into a data entry system, while others are not, depending on the severity of the accident. Eber reviewed the accident reports in the data entry system covering a five-year period and found only one accident report in the system that involved the median at Olive Avenue and G Street.
As Eber's declaration makes clear, the database is not a complete record of all accidents that occurred and that may have involved the median. Only accidents of an unspecified severity were included in the database. The absence of accidents in the data entry system involving the median, except for one, is not dispositive of "whether a condition is dangerous, or that it compels a finding of nondangerousness absent other evidence." (Lane, supra, 183 Cal.App.4th at p. 1346.)
The design of roadways and medians and statistical analysis of accident history for traffic signal design and safety purposes is sufficiently beyond common experience such that the opinion of an expert would assist the trier of fact. Shanteau, an expert in the field, painstakingly detailed his review of City's documentation regarding construction and maintenance of the median and the applicable traffic manual standards at the time of construction and as modified over time and opined that City should have realized the median created a dangerous condition. In Shanteau's opinion, the dangerous condition should have been apparent to City long before the Johnsons' accident and sufficiently in advance of their accident to have taken remedial action.
Shanteau's opinion was sufficient to raise an issue of material fact as to whether City should have known of a dangerous condition at the intersection and whether a reasonable period of time had passed since City should have known. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172-173 [competent opinion of an expert is sufficient to support summary judgment].) Shanteau was qualified; his opinion that the facts were sufficient to put a traffic engineer such as Daugherty, and thereby City, on notice of a dangerous condition relates to a matter within his expertise and is not simply a legal conclusion.
Lastly, we address City's contention that the Johnsons did not operate the motorcycle with due care. Even assuming the Johnsons did not exercise due care, this does not entitle City to summary judgment as a matter of law because the Johnsons need not prove they acted with due care in order to recover for injuries based on a dangerous condition of public property. (Lane, supra, 183 Cal.App.4th at pp. 1347-1348.)
DISPOSITION
The August 4, 2010, order on motion for summary judgment is reversed and the trial court is directed to enter an order denying the motion. The matter is remanded to the trial court for further proceedings. The Johnsons are awarded their costs on appeal.
CORNELL, Acting P.J. WE CONCUR: KANE, J. DETJEN, J.