Opinion
H024332.
7-21-2003
SHANNON MORRIS et al., Plaintiffs and Appellants, v. STATE OF CALIFORNIA, Defendant and Respondent.
Plaintiffs sued defendant State of California, Department of Transportation (State) after the car in which they were riding crashed near Route 87 in San Jose. State moved for summary judgment. (Code Civ. Proc., § 437c.) The trial court granted the motion, finding that State had design immunity. Because there are triable issues of fact regarding whether State has design immunity, we will reverse.
FACTS AND PROCEDURAL BACKGROUND
On February 27, 1999, plaintiffs Shannon Morris, Cheyanne Morris and Sophie Parra were badly injured when the car in which they were riding veered out of control on Route 87 in San Jose.
Plaintiffs sued State and other entities, alleging that State was liable based upon the dangerous condition of Route 87. (Gov. Code, § 835, subd. (b).) Plaintiffs alleged that Route 87 abruptly became a city street, and contend the transition zone from highway to city street was hazardous. Plaintiffs alleged: "The unsuspecting driver of plaintiffs vehicle was lured into the transition zone at freeway speed without adequate warning of the sharp curve to the left and the other cumulative hazards of the transition zone."
Shannon Morris and Cheyanne Morris, by and through her guardian ad litum Michael Morris, filed suit against the State of California, the City of San Jose, and Pacific Gas & Electric Company (PG&E). Sophia Parra, by and through her guardian ad litum Victoria Parra, filed a complaint arising from the same accident. At the request of plaintiffs, these actions were consolidated. Neither City nor PG&E is a party to this appeal.
After answering the complaint, State moved for summary judgment. State argued that it was not liable based upon the affirmative defense of design immunity. (Gov. Code, § 830.6.)
Route 87, which is part of the California Freeway and Expressway System, ends near the intersection with Taylor Street in San Jose and becomes a city street. In 1999, Route 87 had three lanes for northbound traffic until Coleman Street. From Coleman Street to Taylor Street, the road narrowed to two northbound lanes. Beginning at Taylor Street, Guadalupe Parkway, a city street, also had two lanes for northbound traffic. Route 87 curved to the left prior to Taylor Street and had a slight downgrade.
In 1985, this area was part of a state construction project between Highway 280 and Taylor Street in San Jose. Warning signs and devices were installed to alert motorists of the change from highway to city street. Route 87s signage, roadway alignment, lane width, curvature, sight distance and roadway grade meet or exceed design standards set forth in the California Traffic Manual and Highway Design Manual.
Specifically, for northbound vehicles, at milepost 5.85, on the roads right side, a green guide sign reads, "Taylor Street, 1 Mile." A yellow warning sign reads, "End Freeway." At milepost 6.08 and 6.25, on the right, are yellow "merging traffic" symbol signs. At milepost 6.37, on the left, a yellow warning sign reads "End Freeway 1/2 mile" with two yellow flashing beacons. At mile post 6.41, on the right, is a yellow "lane ends" symbol sign. At milepost 6.64, on the right, is a yellow "merging traffic" symbol sign. At milepost 6.71, on the right, is a yellow "traffic signal ahead" symbol sign. At milepost 6.75, on the right, is a green guide sign reading, "Taylor Street," and a black and white "35 zone ahead" sign. At milepost 6.76, on the right, a black and white regulatory sign reads, "35 Zone ahead." At milepost 6.80, on the right, is a black and white regulatory "end freeway" sign. At milepost 6.90, there is Taylor Street, a signalized intersection.
In February 1992, the City of San Jose (City) wrote State. City asked State to improve traffic safety at the termination of northbound Route 87 at Taylor Street. City noted that here had been "numerous northbound run-off-the-road accidents" and that many of the accidents had caused injuries. City asked that State install flashing warning lights, install rumble strips, and post "Speed Reduction Ahead" signs where appropriate.
In an April 30, 1992 memorandum, State identified a minor improvement project. The project involved installing an additional "signal ahead" sign at milepost 6.71, on the left of Route 87. The sign was to be across from the existing "signal ahead" sign on Route 87s right side. Flashing beacons were to be installed on top of each "signal ahead" sign. The project was initiated to "Provide additional advance warning for motorists in conjunction with signal ahead sign (W41) as freeway terminates at West Taylor Street." David Chew, a senior traffic engineer, signed the April 30, 1992 memorandum. An April 29, 1992 map highlighted the proposed improvements.
The Citys February 1992 letter prompted a May 5, 1992 state traffic investigation report and recommendation. The States report recommended that rumble strips be installed on Route 87, starting approximately 1500 feet south of West Taylor Street. Like States April 30, 1992 memorandum, the report also recommended installing flashing beacons on top of each "signal ahead" sign at milepost 6.71, noting, "work to be done on minor improvement contract." An April 29, 1992 map highlighted the proposed improvements, noting, "install rumble strips and Sign (w41)" on Route 87.
On May 26, 1992, State responded to the Citys February 1992 letter. State wrote: "Individual traffic accident reports were requested and received in late March, 1992. This data was analyzed and in conjunction with field investigations, resulted in the following work to be done: [P] 1. Install rumble strips starting at approximately 1500 south of West Taylor Street. [P] 2. Install additional W41 sign (signal ahead) on concrete median across from existing W41 sign on right shoulder. [P] 3. Install flashing beacons on top of each W41 sign."
According to the letter, the States maintenance staff would install the rumble strips. The work identified in items two and three would go through the bidding process.
After the rumble strips were installed, neighbors wrote to complain about the noise the strips were causing, and asked that they be removed.
State initially refused to remove the rumble strips. In response to a San Jose residents request to remove the rumble strips, State in a July 21, 1992 letter wrote: "The City of San Jose expressed concerns over the numerous run-off the road accidents at State Route 87 and Taylor Street. Many of these accidents resulted in injuries to the driver. Vehicles exiting the freeway at Taylor Street were not reducing their speed and would lose control as they entered onto Guadalupe Parkway. The City placed warning signs, but to no avail. This resulted in their request to Caltrans to install rumble strips, flashing warning lights and warning signs on the freeway to alert motorists of freeway ending."
States letter continued: "Members of my staff conducted a field investigation and reviewed data submitted from the City. We concurred with their analysis. Our decision was to install these devices to improve the operational safety of the roadway. (Flashing warning lights and signs to be installed later)."
State concluded: "The installations of these devices has proven to be effective in reducing accidents in similar freeway to local street terminations." State apologized for being unable to grant the residents request and said that the location would be monitored.
In a July 8, 1992 City memorandum, City noted: "Caltrans staff advised us that the strips can be removed if City formally requested them to do so."
Complaints about the noise from rumble strips continued. In a September 3, 1992 letter to State, City noted: "The Department of Streets and Traffic concurs with Caltrans staffs claim that these devices [rumble strips], along with the proposed flashing warning lights and signs, will improve the operational safety of the roadway. Our records indicate that there have been no reported rear-end or run-off-the-road accidents for northbound traffic since the rumble strips were installed on June 4, 1992. The installation appears to be effective in alerting motorists of the impending freeway termination." City noted, however, that it was sensitive to complaints that rumble strip noise had impacted homeowners quality of life. City concluded: "It is requested that Caltrans investigate the noise impacts at this location and install any mitigations as necessary."
On October 13, 1992, State wrote City. In the letter, State said it had decided to remove the rumble strips when the flashing beacons were installed. Describing the situation, State explained that "the rumble strips were originally installed to slow down vehicles prior to reaching the intersection. The strips were placed to minimize the number of accidents which resulted from speeding at this segment of highway." State added: "Consideration for re-installing the rumble strips will depend on the resulting accidents statistics and the suitability of locations with the least noise level."
About one year later, in November or December 1993, the State removed the previously installed rumble strips when the yellow flashing beacons were installed. The State decided that the rumble strips would "no longer be needed" following installation of the yellow flashing beacon signs.
In February 2002, the trial court granted States summary judgment motion. It found that State had design immunity, and rejected plaintiffs claim that State was not immunized from liability for independent acts of negligence.
STANDARD OF REVIEW
On a motion for summary judgment, defendant has the burden of establishing the defense of design immunity. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1158, fn. 6.) As part of that burden, defendant need not prove a design or plan was reasonable but must only produce substantial evidence that a reasonable public employee or legislative body could have approved the plan or design. (2 Cal. Government Tort Liability Practice (Cont.Ed.Bar 4th ed. 2002) Dangerous Condition of Public Property, § 12.74, p. 842.) Once the defendant shows the design immunity defense applies, the burden shifts to plaintiff to prove a triable issue of fact sufficient to defeat summary judgment. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist ., supra, 68 Cal.App.4th 1149 at p. 1158, fn. 6.) We examine the facts presented to the trial court and independently decide their effect as a matter of law. (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 596.)
DISCUSSION
Under Government Code Section 830.6, a public entity may avoid liability for injury proximately caused by a dangerous condition of its property if it raises the affirmative defense of design immunity. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66.) To establish design immunity, the public entity must show "(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. [Citations.]" (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66; citing Gov. Code, § 830.6.)
In this case, State has not established design immunity because there are triable issues of fact regarding what the 1992 plan or design encompassed. In its separate statement of undisputed facts, State defines the 1992 plan as including only the "Traffic Signal Ahead symbol sign in the median area on the left with flashing beacons." However, plaintiffs evidence shows that States description of the 1992 plan is disputed.
In this case, States separate statement of undisputed facts makes the following assertions about the 1992 plan. First, State says: "In 1992, plans were approved for the placement of additional signs and devices (Traffic Signal Ahead symbol sign in the median area on the left with flashing beacons)." Second, State asserts that the 1992 plans were approved by David Chew, a civil traffic engineer who had discretionary authority to approve design plans. Finally, State claims the plans and placement of signs and devices in 1992 met or exceeded the design standards set forth in the California Traffic Manual.
Specifically, plaintiffs evidence suggests the rumble strips were part of the 1992 plan. For example, the May 5, 1992 state traffic investigation report recommended the installation of rumble strips. The April 29, 1992 map disclosed that the work to be completed included installing rumble strips. The States May 26, 1992 letter to City, which listed the work to be completed, included the installation of rumble strips in that listing. This evidence reveals a factual dispute regarding States claim that the 1992 plan included only the "signal ahead" sign and the flashing beacons.
In its brief, State hedges this issue, arguing that "the warning signs and devices in place were an integral part of the plan or design as was the decision to remove the rumble strips." (Italics added.) But the rumble strips were not removed until November or December 1993 so it is hard for us to view that removal as being just a grand part of the 1992 plan. Further, since the decision to install the rumble strips was made at nearly the same time as the decision to install the flashing beacons and left side "signal ahead" sign, it is conceptually difficult to view that installation as being excluded from the 1992 plan while viewing the 1993 removal of the rumble strips as being included.
If the removal of the rumble strips was not part of the 1992 plan or design, then State cannot establish the first element of design immunity-a causal relationship between the plan or design and the accident. (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66; citing Gov. Code, § 830.6.) Plaintiffs contend the removal of the rumble strips was a factor that contributed to the cause of the accident. Thus, if the 1992 plan or design did not include removing the rumble strips, then State cannot show that the 1992 plan or design caused the accident and therefore cannot establish design immunity. (See, e.g., Cameron v. State of California (1972) 7 Cal.3d 318, 325-326, 102 Cal. Rptr. 305, 497 P.2d 777; Mozzetti v. City of Brisbane (1977) 67 Cal. App. 3d 565, 574, 136 Cal. Rptr. 751; see also Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 54.)
If the installation of the rumble strips was part of the 1992 plan, then State is not entitled to design immunity because State is unable to show that Route 87 conformed to the plan or design (since the rumble strips were later removed). (See Cameron v. State of California, supra, 7 Cal.3d at p. 326; see also Wyckoff v. State of California, supra, 90 Cal.App.4th at p. 52.)
Even if we were to view the 1993 rumble strip removal as being part of the 1992 plan, we would find that State has not shown substantial evidence that the removal was reasonable. As noted above, to be entitled to design immunity, State must show, among other things, "substantial evidence supporting the reasonableness of the plan or design." (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66; citing Gov. Code, § 830.6.) State must produce substantial evidence that a reasonable public employee or legislative body could have approved the plan or design. (2 Cal. Government Tort Liability Practice (Cont.Ed. Bar 4th ed. 2002) Dangerous Condition of Public Property, § 12.74, p. 842.) Although States evidence shows that a decision was made to remove the rumble strips, there is no substantial evidence that the removal was reasonable.
In particular, in States July 1992 letter, State asserted: "The installation of these devices has proven to be effective in reducing accidents in similar freeway to local street terminations." Citys September 1992 letter observed, "Our records indicate that there have been no reported rear end or run-off-the-road accidents for northbound traffic since the rumble strips were installed on June 4, 1992. The installation appears to be effective in alerting motorists of the impending freeway termination." The evidence suggests that the only reason the State removed the rumble strips was due to neighborhood complaints about noise. In fact, in its letter notifying City of the decision to remove the rumble strips, State acknowledged that "the rumble strips were originally installed to slow down vehicles prior to reaching the intersection. The strips were placed to minimize the number of accidents which resulted from speeding on this segment of highway."
Thus, the evidence before us indicates that States decision to remove the rumble strips was not based upon anything other than the noise they caused, despite the fact that both City and State had acknowledged that the rumble strips were effective in improving the safety of Route 87. We conclude that State has not shown substantial evidence that the decision to remove the rumble strips was reasonable.
Essentially the evidence suggests that the 1992 plan included the sign, flashing beacons, and the rumble strips. The State installed the rumble strips itself but the other work was supposed to be subjected to the bidding process. Before the other work could be completed, the neighbors complained about the rumble strip noise, thereby prompting State to make the decision to remove the rumble strips once the flashing beacons were put in place.
In any event, the critical point is that there are disputed issues of fact about what the 1992 plan or design encompassed. "The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.]" (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 69; see also Cameron v. State of California, supra, 7 Cal.3d at p. 326.) When the nature of the plan or design adopted by the government officers is subject to a factual dispute, then the rationale for design immunity does not apply.
Plaintiffs frame the issue as being whether State lost design immunity. But before loss of design immunity can be considered, it must first be shown that State has established all of the elements of the design immunity affirmative defense.
State says plaintiffs waived the issue of whether or not State established the elements of design immunity because in their brief plaintiffs focus on whether or not State lost the immunity. But plaintiffs decision to frame the issue on appeal in terms of the loss of design immunity cannot be considered a concession. In fact, a large part of plaintiffs brief focuses upon States decision to remove the rumble strips and their contention that States decision was improper. Thus, this case is plainly different from the cases regarding waiver cited in States brief, such as Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6. In Reyes, the court noted that since the plaintiffs did not challenge on appeal the trial courts granting of summary adjudication of their causes of action sounding in negligence, the appellate court was therefore not required to address the propriety of summary adjudication as to those claims. (Ibid.) Here, by contrast, plaintiffs have not failed to address a cause of action in their briefs nor have they overlooked the issue of the rumble strips. Their decision to present the issue in terms of the loss of design immunity does not constitute a waiver.
It may very well be that Route 87 does not constitute a dangerous condition of public property, or that State has no liability for the injuries resulting to plaintiffs from the car accident. But those issues are not before us. We are only deciding whether or not State has shown that it is entitled to summary judgment based upon the affirmative defense of design immunity. Because of the strong public policy favoring trials on the merits, we must strictly construe States moving papers and liberally construe those presented by plaintiffs. Any doubts about the propriety of granting summary judgment must be resolved in favor of the party opposing the motion. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189.) Summary judgment should only be granted when the evidence leaves no room for conflicting inferences as to material facts. (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 735, 968 P.2d 65.)
Applying those principles here, plaintiffs evidence indicates that the installation of the rumble strips was part of the 1992 plan or design and therefore States claim in its separate statement that the 1992 plan or design encompassed only the flashing beacons and "signal ahead" sign is subject to a factual dispute. State is not entitled to summary judgment based upon the affirmative defense of design immunity when what was involved in the 1992 design or plan is not undisputed.
State moved for summary judgment on the basis of design immunity. We have concluded that triable issues of fact exist as to that affirmative defense and that the summary judgment must be reversed. That being the case, we express no opinion on plaintiffs contention that even if State has design immunity, State is still liable based upon negligent acts or omissions independent from the plan or design.
DISPOSITION
The judgment is reversed. Costs on appeal to plaintiffs.
WE CONCUR: ELIA, J., MIHARA, J.