Opinion
F050307
5-31-2007
MARY JANE PARKER, Plaintiff and Appellant, v. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION et al., Defendants and Respondents.
Law Offices of Gary A. Dordick, Gary A. Dordick and David Azizi, for Plaintiff and Appellant. Bruce A. Behrens, Chief Counsel, Thomas C. Fellenz, Deputy Chief Counsel, Jeanne R. Scherer, Assistant Chief Counsel and Kevin M. Corrington, for Defendants and Respondents.
NOT TO BE PUBLISHED
On October 11, 2003, Mary Jane Parker suffered catastrophic injuries while driving her 1999 Saturn Sedan westbound on State Route ("SR") 58 in Kern County when she was struck by an eastbound 2001 Mazda 626 which had crossed into the westbound lanes unimpeded by a median barrier. The Mazda driver, Catrina Ramos Gonzalez, had lost control of her vehicle in a curve and had traveled through the paved center divider. Gonzalez was fatally injured. She was also found to be at fault for the collision.
Parker subsequently filed suit against the California Department of Transportation (Caltrans, or more generally the State) on the theory that the absence of a median barrier at the collision site constituted a dangerous condition of public property. (Gov. Code, § 835.) The trial court granted summary judgment for the State on the ground of design immunity (§ 830.6), and Parker appealed. We will affirm.
All further statutory citations will refer to the Government Code.
FACTS AND PROCEEDINGS
This case requires an understanding of the general process by which Caltrans decides whether to install median barriers along the states highways, and the application of that process to the particular stretch of highway where the present accident occurred. This basic information, about which there appears to be no real dispute, was provided in the declaration of Richard N. Smith, a civil and traffic engineer who, during his 30 years working for Caltrans, was directly involved in the development and implementation of its median barrier program. The program also has been described in several published decisions that have addressed the same sort of issues we are faced with here, including a decision by this court in Alvarez v. State of California (1999) 79 Cal.App.4th 720 (Alvarez), abrogated on other grounds in Cornette v. Department of Transportation (2001) 26 Cal.4th 63 (Cornette).
As Smith explained the process, the decision whether to install a median barrier is not as straightforward as it might appear to be at first.
"[A]lthough many lay people tend to think of [a] median barrier as a totally beneficial addition to any roadway, that is not the case. This is so because median barrier placement essentially cuts in half the recovery room for out-of-control vehicles, while itself presenting a fixed object which when hit can cause serious injuries, either by direct impact or by deflecting vehicles back into traffic." (See also Alvarez, supra, 79 Cal.App.4th at pp. 724-725.)
In an effort to strike this balance — i.e., to identify the point at which the risk and severity of cross-median accidents is likely to exceed the risk and severity of hit-barrier accidents — Caltrans developed sets of criteria it called "median barrier study warrants." When one of these warrants is met, it triggers an engineering study to determine whether a median barrier should be installed at a particular location. It is not a determination that a barrier is required at the location, only that conditions there merit further study. Caltrans has periodically evaluated its policy and procedures with regard to median barrier placement and warrants.
The Volume/Width Warrant
There are two types of median barrier study warrants: a volume/width warrant and an accident warrant. The volume/width warrant looks at the daily number of vehicles that pass a given point on the highway (average daily traffic, or ADT) in relation to the width of the median. It is "based on the premise that the probability of a cross-median accident increases with increasing traffic and with decreasing median width."
The portion of SR 58 where Parkers accident occurred was designed in 1964, and completed in 1966. The median width at the accident site was 22 feet. The volume/width warrant in effect at the time required barrier studies only if traffic volume was more than 40,000 ADT. In 1968, Caltrans changed the requirements for a volume/width warrant. Under the new guidelines, a volume/width warrant would be met for a median width of 22 feet where the ADT is approximately 21,500. The accident site did not meet the volume/width warrant until 2003, but this data was not available until 2004. Thus, the only thing then that would have triggered a barrier study with respect to a barrier placement at the site of the accident would be an unusual number or rate of cross-median accidents.
The Accident Warrant
The accident warrant looks at the rate of accidents at a particular location along the highway in either of two ways: (a) the number of cross-median accidents of all types, or (b) the number of fatal cross-median accidents, per mile per year over a five-year period. The accident warrant is based upon the premise that "[i]f a freeway location has a consistent and significant pattern of cross-median accidents, it may be worth accepting the increase in total accidents that accompanies barrier installation in order to reduce the number of more severe cross-median accidents." In 1964, when the portion of SR 58 at the accident site was designed, the accident warrant called for a barrier study when the accident rate was at least 0.46 accidents per mile per year for all accidents, or 0.12 accidents per mile per year for fatal accidents. If a warrant was met, the area to be studied would begin and end at an accident site, and was required to encompass the site of at least one additional cross-median accident. (This requirement of three or more accidents within a five-year period was intended to give the accident rate statistical relevance.) The warrant for all cross-median accidents was increased in 1978 from 0.46 to 0.50 accidents per mile per year.
The Median Barrier Monitoring System (MBMS)
In 1978, Caltrans instituted an annual Median Barrier Monitoring System to identify freeway locations, and later multilane non-freeway locations, that should be reviewed for possible barrier installation. "The purpose of the monitoring system [was] to ensure that all locations which meet the median barrier warrants are investigated and that the justified locations are scheduled for construction as soon as possible."
The Accident Site
Parkers accident occurred in Kern County, on SR 58, approximately 227 feet east of Kern County milepost marker 83.00. The site was located within a 4.36-mile section of Highway 58, between postmiles 82.71 and 87.07, where no median barrier had been installed at the time of the accident.
The highway there had been constructed in 1966. It was built in accordance with the prevailing standard at the time, which, as we have said, did not require barriers on medians of 22 feet where traffic volume was less than 40,000 ADT.
Prior to July 26, 2001, the accident site did not meet either the volume/width warrant or the accident warrants. The July 26, 2001, letter from the States Median Barrier Monitoring Program (MBMP) identified a 1.35-mile stretch of SR 58, which encompassed the accident site, as meeting the total accident warrant. On January 22, 2002, Caltrans subsequently recommended that a median barrier be installed from postmiles 82.96 to 84.30, a 4.36-mile section of SR 58 which included the section identified in the July 26, 2001, MBMP letter. Caltrans decided to install a median barrier over the longer section of SR 58 to close the gap between existing median barriers. Caltrans accepted this recommendation, and the planning, design, and construction process went forward accordingly, with a projected completion date in fiscal year 2006/2007.
The Defendants Motion for Summary Judgment
The State moved for summary judgment and dismissal of Parkers complaint on the ground that the complaint was barred, as a matter of law, by the affirmative defense of design immunity under section 830.6. In support, the State cited Parkers complaint and provided the Smith declaration.
According to Caltrans, it was entitled to design immunity because: (1) Parker had alleged that her accident was caused by the lack of a median barrier; (2) the Smith declaration established that there was discretionary approval; and (3) there was substantial evidence that the design for SR 58 was reasonable.
Smith explained that the plans for the freeway construction went through several levels of review to insure they met all applicable standards, and he stated that the signatures of several Caltrans engineers on the design plans "show that they in fact exercised their discretionary authority in approving the plans."
According to the State, the design immunity remained even though the total accident warrant was met in the July 26, 2001, MBMP letter because Caltrans acted promptly in investigating the site after the warrant was met, and Parkers accident occurred before Caltrans had reasonably sufficient time to place a median barrier. According to Smith, several years typically pass between the decision to install a median barrier and completion of the project. This delay, Smith explained, was the result of "various Federal or State laws and regulations, which are mostly beyond the control of Caltrans." These laws and regulations include the State Contract Act, which requires that Caltrans solicit bids for any construction project over $ 25,000. Funding must also be approved by the Legislature and California Transportation Commission. Finally, various environmental studies must also be met. Smith stated that, between 1992 and 1997, the average time between an identification of a site under the volume/width warrant in the MBMS and the installation of a median barrier is four years and four months. Here, the accident occurred two years and three months after the accident site was identified as meeting the total accident warrant in 2001.
The Plaintiffs Opposition
Parker opposed the motion for summary judgment on the grounds that Caltrans had not met its burden of proof. Parker contended that the plans for SR 58 do not mention "median barriers" and thus do not show any actual consideration of median barriers. She also argues that there is no design immunity for lack of maintenance, and that any design immunity for SR 58 expired in 1986. Finally, she argues that, if design immunity was applicable, it was lost because of changes in circumstances. Parker offered the declaration of one expert in support of her claims that design immunity had never attached to the portion of the highway at the accident site, that it had been lost due to changed physical conditions, or that it had expired.
Harry J. Krueper, who is likewise a civil and traffic engineer, questioned whether Caltrans had made a deliberate decision to omit a median barrier when it built the freeway in 1966.
"... Based upon my experience and familiarity with the processes of the Department of Transportation, the absence of a mark in the boxes [on page 6 of the as-built plans] that deal with median barriers does not necessarily convey what Mr. Smith would have the Court believe.... The absence of marks in these boxes does not necessarily mean that the engineers who signed the as-built plans consider[ed] the installation of a median barrier at the time this portion of State Route 58 was built. Moreover, the markings in boxes on the plans merely signify that certain other road features were considered and therefore made a part of the original as-built plans. Without testimony from the original engineers to ascertain what was considered at the time of the drawing of the plans, it is sheer speculation to opine that the absence of certain marks implies the application of engineering discretion from an appropriately trained and licensed traffic engineer."
Krueper also declared that, even if design immunity had attached in 1966 when the highway was constructed, changing conditions in the ensuing years had caused the design to become inadequate and unsafe (and the State to lose its design immunity). Krueper then went on to assert that increases in the size and weight of vehicles, in the volume of traffic on SR 58, and the change in designation of SR 58 from a "major conventional roadway" to an "expressway," were all such changed physical conditions.
Krueper averred that still other "[e]ngineering factors" also "undermine[d] Caltrans claim for design immunity." Citing Caltranss Highway Design Manual, Krueper stated that "the geometric design of new facilities should normally be based on estimated traffic 20 years after the completion of construction." "Therefore," he reasoned, "by Caltrans own rules, the design period for which the original design is valid is no more than 20 years." Plaintiff claimed on the basis of Kruepers opinion that Caltranss design immunity had effectively expired in 1986.
On the other hand, Krueper also stated that median barriers are not really part of a highways design at all, but instead are "operational" features because they appear in Caltranss "Traffic Manual" instead of its "Design Manual." Operational features, he said, must be continually monitored and updated to accommodate changing conditions. "The claim for design immunity," Krueper concluded, "does not exempt Caltrans from the duty of continually monitoring the highway system [through the MBMS] and making changes to operational features on an as-needed basis."
Finally, Krueper opined that the accident site "warranted the installation of a median barrier at least three and one-half years before the accident." Although not stated expressly by Krueper, it appears that the site warranted the installation of a median barrier because the site met volume/width and accident warrants at the time of Parkers accident on October 11, 2003. Krueper agreed with the July 26, 2001, MBMP letter that the total accident warrant was met in 2001. Thus, the total accident warrant was also met in 2002 and 2003. Krueper also opined that the fatal accident warrant was met during those years because there was one fatal accident. Finally, the volume/width warrant was met in 2003 because ADT was recorded at 21,600 for that year. In response to Smiths declaration that the volume/width warrant was not met until 2004 because Caltrans did not receive the volume data until 2004, Krueper stated: "The data that was available in 2003 clearly indicates that the volume-width warrant was met." Thus, Krueper opined that at the time of the accident, all three median barrier warrant criteria were met.
Finally, according to Krueper, "[f]rom my review of the file materials, voluminous documents produced by Caltrans in both this case and the Garcia case, a review of the Motion for Summary Judgment, Declaration of Mr. Smith, and the various depositions of Mr. Smith which I have seen, it appears that the roadway area, which contained the location where this accident occurred, approximately from Milepost 82.80 to 84.30, warranted the installation of a median barrier at least three and one-half years before the accident. Richard Smith previously admitted that, at locations where safety was considered a key factor, temporary K-rail [barriers] could have been installed in a period of 12 to 18 months." Krueper believed that, "if the State had installed a temporary or permanent median barrier at the subject accident location, Ms. Parker would not have sustained such severe injuries."
The Defendants Reply
Caltrans filed written objections to much of the Krueper declaration, along with a supplemental declaration from Smith.
Caltrans generally argued that Krueper was not qualified to testify about the median barrier policies and procedures or about the MBMP. Caltrans also objected to much of Kruepers opinions on the bases of relevance and foundation. Caltranss objection to the reference to a Garcia case in the Krueper declaration was sustained by the court, and on appeal, has been conceded by Parker.
Caltrans objected to the testimony relating to actual approval as being irrelevant and without foundation since Smith never testified about marking or the absence of marking of boxes. It appears that Krueper inadvertently copied and pasted that testimony from a prior declaration.
Caltrans objected to the opinions relating to changed conditions because other appellate courts have held such evidence insufficient to raise a triable issue of material fact.
Caltrans objected to the opinion on the reasonableness (or allegedly lack thereof) of installing a median barrier as being irrelevant and without foundation. According to Caltrans, "Mr. Krueper does not provide any factual basis to explain why temporary K-rail [sic] should have been installed at this particular location. Furthermore, Mr. Krueper does not state any facts, whatsoever, supporting his conclusion that the barriers should have been installed prior to the subject accident. There is no reference as to the length of time it takes to develop a temporary barrier project, nor does Mr. Krueper submit any proofs to support his bare opinion that this project could have been completed sooner."
In his supplemental declaration, Smith disputed the bases for most of Kruepers opinions. Among other things, Smith asserted that median barriers were considered during the design process; that the 20-year design period relates to a highways carrying capacity (the number of lanes and type of pavement), not to the need for median barriers; that fatal accident warrants were not met at the accident site because there was only one fatal accident, whereas the fatal accident warrant requires three or more fatal accidents; that the ADT for 2003 was not available to Caltrans on October 11, 2003; and that Smith was aware of only a couple of median barrier projects that were fast-tracked and installed in very short completion times, but that nothing would have triggered the same considerations for the Parker accident site.
The Trial Courts Ruling
The trial court found that the plaintiff had failed to present evidence sufficient to raise a triable issue of fact either with respect to the States claim of design immunity, or with respect to its own claim that changed circumstances had caused the State to lose its immunity. The trial court held that the State had met its burden of showing that it had design immunity, and that Parker had failed to meet her burden on any of the three elements required to show that design immunity was lost. In reaching this conclusion, the court sustained many of the States objections to the declaration by Krueper. The trial court did reject the objection that Krueper was not qualified to opine about Caltranss median barrier policies and procedures and the MBMP.
Judgment was entered on March 3, 2006, and this appeal followed.
DISCUSSION
On appeal, Parker claims that triable issues of fact exist with respect to the following contentions: design immunity did not attach because the installation of median barriers is a form of maintenance rather than design; design immunity did not attach because there is no evidence Caltrans made a deliberate decision to omit a median barrier during the design of SR 58 in the mid-1960s; design immunity expired after 20 years when the original design became obsolete; and a combination of changed physical conditions had caused Caltrans to lose its design immunity before Parkers accident.
Parker also argues the trial court erred in sustaining the States objections to Kruepers declaration. According to Parker, the trial court erred in sustaining the objections because Krueper is a well-qualified expert, and "the declaration was factually sufficient to establish the existence of disputed factual issues." Parker also contends that "Mr. Krueper provided sufficient foundation for his opinions. The States objections really went to the weight of the evidence and credibility, not admissibility." Parker did not explain how Kruepers opinions were supported by sufficient foundation. Finally, Parker argues that the trial court erred in sustaining the relevance objections because those objections were based upon appellate cases that are not relevant in this case.
The Standard of Review
The purpose of the law of summary judgment is to provide a mechanism by which a court can determine whether, notwithstanding the allegations in the parties pleadings, a trial is necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) "If a party moving for summary judgment ... would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment." (Id. at p. 855.)
A defendant moving for summary judgment has the initial burden of producing evidence sufficient to make a prima facie showing that a cause of action has no merit, either because the plaintiff cannot establish one or more of the elements of the cause of action, or because a complete defense to it exists. (Aguilar, supra, 25 Cal.4th at pp. 850-851; Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant makes such a showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
We review the trial courts decision — its ruling, not its rationale — de novo. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) We consider all the evidence set out in the moving and opposition papers, except evidence to which an objection has been made and sustained by the court, and all uncontradicted inferences reasonably deducible from the evidence. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
We review the trial courts evidentiary rulings for an abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) A trial court enjoys broad discretion in ruling on foundational matters on which expert testimony is based. (Evid. Code, §§ 801, subd. (b) & 802.) Discretion is abused when a court exceeds the bounds of reason, all of the circumstances before it being considered. Unless a clear case of abuse is shown, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Golden Eagle Refinery Co. v. Associated International Ins. Co. (2001) 85 Cal.App.4th 1300, 1318.)
Evidence Code section 801, subdivision (b) permits an expert to testify to an opinion "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
Evidence Code section 802 sets forth standards for an experts statement of the basis of his or her opinion during testimony.
Design Immunity
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." (Cornette, supra, 26 Cal.4th at p. 68; § 835, subd. (b).)
However, the public entity may escape liability by establishing what is known as "design immunity." (Cornette, supra, 26 Cal.4th at p. 69.) 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 therefore....
"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), abrogated on other grounds in Cornette, supra, 26 Cal.4th 63.)
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), abrogated on other grounds in Cornette, supra, 26 Cal.4th 63.)
"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 (Grenier), fns. omitted.)
Did Design Immunity Attach?
The first element of design immunity — a causal connection between the plan and the accident — requires proof the alleged design defect was responsible for the accident, as opposed to some other 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 (Mozzetti), abrogated on other grounds in Cornette, supra, 26 Cal.4th 63 [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 [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].)
Parker argues in effect that the installation of median barriers is part of the maintenance and operation of the states highways, rather than part of their design. This argument is based entirely on her experts (Kruepers) observation that the MBMS is outlined in Caltranss traffic manual rather than its design manual. Krueper offered no explanation of how or why this fact, if true, tended to prove the point he would make. "`That a plaintiffs expert may disagree [that a design decision was made] does not create a triable issue of fact. [Citation.]" (Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1161 (Sutton).) The traffic manual, by its terms, "contains current highway design standards, criteria and policies." Parker cites no decision, out of all the ones discussing median barriers, that treats them as anything other than a design feature. (See Cornette, supra, 26 Cal.4th at p. 68 [public entity may rely on design immunity as a defense to claim of liability based on absence of median barrier].)
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." (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.) Plaintiff claims the evidence — the design plans and Smiths declaration that there was prior discretionary approval — fails to establish that the Caltrans engineers who signed the plans actually considered and rejected the possibility of installing median barriers when SR 58 was designed in1964. Several courts, including this one, have rejected the argument that the State failed to meet its burden in establishing discretionary approval by presenting the same type of evidence that was presented here. The design plans for SR 58, together with Smiths declaration describing Caltranss approval process for such plans, the median barrier study warrants, and the plans compliance with the process and the then-existing warrants, are sufficient to satisfy the prior discretionary approval element of design immunity. (Alvarez, supra, 79 Cal.App.4th at pp. 734-735; Grenier, supra, 57 Cal.App.4th at p. 940; Higgins, supra, 54 Cal.App.4th at p. 186.)
Parker however contends that her experts declaration that there was not actual approval creates a triable issue of fact on this element. Thus, she contends that the issue should be tried before a jury, citing Hernandez v. Department of Transportation (2003) 114 Cal.App.4th 376, 388 (Hernandez ). In Hernandez, however, 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.) Here, there is no evidence that the design plans deviated from the applicable standards. Moreover, Parkers expert did not provide admissible evidence on the issue of discretionary approval because the trial court sustained an objection to this testimony based upon relevance and foundation. We agree that Kruepers evidence was inadmissible on this point because Krueper referenced assertions in Smiths declaration (the marking, or absence thereof, of certain boxes on the design plans) which do not appear in Smiths declaration, and then bases his opinion of actual approval on these unfounded assertions. Finally, it is unclear whether Kruepers opinion on actual approval also encompassed an opinion that there was no discretionary approval. Thus, we conclude that there was no triable issue of fact on this element.
Parker does not challenge the evidence regarding the reasonableness of the design, which is the third element of design immunity.
Therefore, the State has shown that design immunity attached.
Did Design Immunity Expire?
Parker initially argues the States design immunity expired in 1986. While acknowledging that "no case has yet expressly stated that design immunity is lost merely through the passage of time," she then asserts that "time itself is an express limitation in the Caltrans standards." She relies for this claim, in turn, on the following excerpt from Kruepers declaration:
"Engineering factors other than design conditions that undermine Caltrans claim for design immunity include the exemption of operational features, including exceeding the design period, a violation of a Caltrans policy. Section 603.2 of the Caltrans Highway Design Manual states that structural roadbeds are generally designed to carry one-way traffic for a period of 20 years following the opening of the roadway, on all interstate routes and for all PCCP [referring apparently to concrete pavement] on other routes. A 10-year design is generally used for all other AC [referring apparently to asphalt] pavements. Section 103.2 of the Caltrans Highway Design Manual states that the geometric design of new facilities should normally be based on estimated traffic 20 years after the completion of construction. With justification, design periods other than 20 years may be approved by the district director, with concurrence by headquarters project development coordinators. Therefore, by Caltrans own rules, the design period for which the original design is a valid [sic] is no more than 20 years."
Thus, plaintiff asserts: "As a matter of law, pursuant to the States own regulations, the validity of the design in this case would have expired in the mid-1980s, years before the accident in question. Design immunity should not attach to a design made antiquated by Caltrans [sic] own standards."
Once again, however, Krueper neglected to explain how his assertions support his conclusion. He does not explain what the design life of the roadbed has to do with median barriers. Nor does Krueper explain how the use of the projection of traffic volume 20 years in the future makes the design of SR 58 obsolete. In fact, the sort of "changed physical conditions" that can lead to a loss of design immunity do not include the mere passage of time. (Cameron, supra, 7 Cal.3d at p. 326, fn. 10.)
Was Design Immunity Lost?
"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 (Compton).) "[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.)
"To demonstrate loss of design immunity a plaintiff must ... establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. [Citations.]" (Cornette, supra, 26 Cal.4th at p. 66.)
The question before the court in Cornette was whether the existence of the three elements necessary to establish the loss of design immunity are, like the third element that need be shown if immunity is to attach, issues that must be tried to the court rather than to the jury. (Cornette, supra, 26 Cal.4th at pp. 66-67.) "Our examination of the text of section 830.6, the legislative history of that section, and our prior decisions lead[] us to the conclusion that, where triable issues of material fact are presented,... a plaintiff has a right to a jury trial as to the issues involved in loss of design immunity." (Id. at p. 67.) In reaching this conclusion, the court observed that several decisions by the courts of appeal have stated, incorrectly, "that all of the elements necessary to establish design immunity are legal issues for the court to decide." (Id. at p. 74, italics added, fn. omitted.) The court identified some of these decisions in the omitted footnote. The list includes several of the decisions we cite in this opinion, i.e. Alvarez, Cameron, Higgins, and Mozzetti. (Cornette, supra, 26 Cal.4th at p. 74, fn. 3.) To be clear, only the third element of design immunity — "the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design" — must be tried by the court. (Id. at p. 66.) Here, we are concerned with whether the State lost its design immunity.
Thus, the burden was on plaintiff, in response to the States motion, to show that a triable issue of material fact exists as to each of these three elements. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 (Mirzada).)
Reasonable Time
The trial court ruled that Parker did not meet her burden to show a triable issue of material fact exists on whether "the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan."
Parker contends that she "had no burden to show funding for median barriers in this case because, inter alia, the separate statement [of the State, in support of its motion for summary judgment,] made no reference to any inability to fund median barriers on State Route 58 at any time." As to the reasonableness of the time to carry out necessary remedial work, she does not specifically address that issue. Parker, however, does contend that "[t]he States failure to install even a temporary median barrier after the warrants were met was inexcusable. `[F]or many years, it procrastinated." We will treat this contention as addressing the reasonableness of the time to carry out necessary remedial work. After reviewing the record, we conclude that Parker has not met her burden on this element.
Parker has the burden of showing that Caltrans has a reasonable time to obtain funding. (Mirzada, supra, 111 Cal.App.4th at pp. 806-807.) The fact that the State did not make a reference to funding in its separate statement is legally irrelevant given that the State did not have the burden of showing that it could have funded necessary remedial work.
As to Parkers contention that the State procrastinated, it is based upon her experts testimony that "[t]he State of California should have evaluated the need for a protective median barrier long before the subject accident occurred, but that, for many years, it procrastinated on acting by not installing either a permanent median barrier or a temporary barrier which, later, could have been converted to a permanent barrier." The trial court sustained the States objection to this opinion on the basis that it was irrelevant and lacked foundation. The trial court explained that the opinion does not address whether "Caltrans had a reasonable time to obtain funds and carry out the alleged necessary remedial work or alternatively provide warnings." The trial court did not abuse its discretion in excluding the opinion because Krueper did not provide data or analysis to support his opinion that the State should have evaluated the need for a protective median barrier long before the subject accident but procrastinated.
According to the undisputed facts, Caltrans was alerted to the possible need for a median barrier at the accident site by the July 26, 2001, MBMP letter. It initiated a study and, on January 22, 2002, concluded that a protective median barrier should be placed at the site. The planning, design, and approval was proceeding when the accident occurred on October 11, 2003. Krueper does not explain how the State could have evaluated the need for a protective barrier significantly earlier than it did in this case. He does mention in a later part of his declaration that the State "push[ed] back the date that it agreed the median barrier installation warrants were met" when "[t]he State changed the limits of the study area [by increasing the area to be studied] instead of following the [subject location identified in the MBMP letter]." However, given that the study of the accident location was triggered by the fact that a median barrier study warrant was met, the opinion that the State pushed back the date it agreed that the median barrier warrants were met has no foundational support. Also, there is no foundational support that the study of a 4.36-mile stretch of highway would take a much longer time than the study of a 1.35-mile stretch of the same road, such that the longer time would have had a material impact on when the median barrier could have been placed at the accident site. Finally, Kruepers opinion on this point does not reference any other portion of his declaration.
On appeal, Parker also does not explain how Kruepers opinion that the State procrastinated is supported by data or analysis. We are not required to determine what parts of Kruepers declaration could serve as foundation for his opinion on this point. (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835 ["An appellate court is not required to search the record to determine whether or not the record supports [appellants] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support [appellants] position."].)
Given that Parker did not meet her burden of producing evidence sufficient to show that there was a triable issue of material fact on whether Caltrans had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, we find that she failed to show that there is a triable issue of material fact on whether the State lost its design immunity. We need not reach the question of whether Parker raised a triable issue of material fact on the other two elements, as the failure to meet any of the three elements is sufficient to support the trial courts grant of summary judgment.
DISPOSITION
The judgment is affirmed.
We Concur:
CORNELL, Acting P.J.
DAWSON, J.