Ruling highlights rationale of the design immunity defense

CONSTRUCTION CORNER

In Rodriguez v. Department of Transportation, 21 Cal. App. 5th 947 (2018), the 5th District Court of Appeal considered the following brain-twister: Can you knowingly approve something, which does not include something else, if you never considered the absence of that "something else"? Think about that for a moment... or better yet, just read on.

The Case

In 2013, a pickup truck traveling westbound on State Route 152 toward Los Banos, California, ran off the road killing a passenger in the vehicle and injuring the driver as well as another passenger, Erik Rodriguez. Rodriguez sued the California Department of Transportation (Caltrans) on the ground that the accident was caused by a dangerous condition on public property.

At the location of the accident, SR 152 was a four-lane divided expressway with two 12-foot wide lanes in the westbound direction, an eight-foot wide paved right shoulder, and a metal beam guard rail to the right of the outside shoulder. The accident occurred when the truck that Rodriguez was a passenger in veered from the fast lane across the slow lane, onto the paved shoulder, and through the guard rail where it came to a rest in an irrigation canal.

In his suit against Caltrans, Rodriguez argued that the shoulder should have had a "rumble strip" to alert drivers who inadvertently veered onto the shoulder. Caltrans filed a motion for summary judgment arguing that it was immune from suit under Government Code Section 830.6, also known as the design immunity defense, which provides 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."

In support of its motion, Caltrans submitted evidence consisting of the design plans for SR 152 from 1992, 2002 and 2011, declarations of state engineers who described their "discretionary authority" under Government Code Section 830.6 to approve the design of those plans, and declarations of other state engineers who confirmed that SR 152 was built according to those approved plans.

The project engineer of the 1992 plans stated in his declaration that he "did not consider using rumble strips on the shoulders because at the time I approved the [1992] plans ... the use of rumble stripes was not in common practice. In 1992, there were no standards or policies which addressed or called for the design of shoulder rumble strips. In 1992, the absence of rumble strips at the subject location met the then existing standards for roadways."

In opposition to the motion, Rodriguez stated that he was not arguing as to the reasonableness of the design, but rather, that because the project engineer had not considered the use of rumble strips at all, as opposed to considering and then rejecting the use of rumble strips, Caltrans could not establish that it exercised its "discretionary authority" to approve the plans without rumble strips.

You may want to read that again. In short, Rodriguez was arguing that Caltrans didn't have the "discretionary authority" to approve the plans because it never considered the use of rumble strips, but even without the rumble strips, the plans were reasonable. It's a bit like the tail wagging the dog.

Not surprisingly, the trial court granted Caltrans' motion, noting that Rodriguez had conceded that the plans were reasonable, and that his argument that Caltrans did not have discretionary authority to approve the plans because it never considered the use of rumble strips did not raise a triable issue of fact since Caltrans had in fact considered and approved the plans.

Court of Appeal Decision

The Court of Appeal outlined the general principles governing the design immunity defense of Government Code Section 830.6:

• Under the Government Claims Act, a public entity is not liable for an injury except as otherwise provided by statute;

• The Government Claims Act provides for liability of a public entity for injuries caused by dangerous conditions on public property. To establish the existence of a dangerous condition, a plaintiff must show: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; and (4) the public entity had notice of the dangerous condition a sufficient time prior to the injury to have taken steps to protect against the dangerous condition.

• Even if a plaintiff can demonstrate the existence of a dangerous condition on public property, a public entity can avoid liability under the design immunity defense if it can show: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design before the construction or improvement; and (3) substantial evidence supporting the reasonableness of the plan or design.

The Court of Appeal explained that Caltrans presented undisputed evidence that the plans for SR 152, which, while they did not include rumble strips, were approved by Caltrans civil engineers who had discretionary authority to approve the plans. The court said "discretionary approval" "simply means approval in advance of construction by the legislative body or officer exercising discretionary authority." This evidence, "demonstrates the discretionary approval element as a matter of law."

Rodriguez argued that Caltrans could not establish discretionary approval because the planning engineer "never considered ... whether to install rumble strips ... [and] that if there was never a decision made concerning the rumble strips, the quality of the deliberative process cannot be assessed."

The Court of Appeal disagreed: "[A]ll that is required to establish the discretionary approval element is evidence that an employee with discretionary authority approved the plan or design. Here, Caltrans presented such evidence. That the project engineer also stated he did not consider the use of rumble strips is irrelevant to the discretionary approval element. It is relevant, however, to the reasonableness element, as it is at that stage the court considers whether it is reasonable that an employee, in approving a design without considering a particular design feature, adopted a design that 'a reasonable ... employee could have approved.'"

The court noted that, "Rodriguez states that his '"real complaint" is that the project engineer never made a decision one way or the other because he "did not consider rumble strips" at all.' He asserts the discretionary approval element does not 'speak to, nor immunize, failures to decide, only decisions actually made.' In his view, design immunity is vitiated if the employee with discretionary authority to approve a plan or design admits he or she failed to consider the particular feature or design, the absence of which a plaintiff later alleges made the property dangerous."

But the court said, "Rodriguez's view of what constitutes a design decision ... is too narrow. Here, the design decision made in 1992 was to construct a bare paved shoulder at the accident location. The wisdom of this decision, and whether the project engineer should have considered whether to install rumble strips, is reviewed, not at the discretionary approval stage, but at the reasonableness stage. To conclude otherwise 'would implicate the adequacy of the deliberative process at the discretionary approval stage and would lead a jury into just the sort of second-guessing concerning the wisdom of the design that the statute was intended to avoid.'"

In other words, the "discretionary approval" element of the design immunity defense under Government Code Section 830.6 pertains merely to a public entity's consideration and approval of a plan or design, not whether that plan or design was reasonable, which is the third element of the defense which had been conceded by Rodriguez.

Conclusion

Rodriguez underscores the rationale of Government Code Section 830.6's design immunity defense, which is to prevent a jury from second-guessing a public entity's assessment of risk when approving plans or designs and, that rather, it is the role of the court to determine whether substantial evidence supports the reasonableness of the public entity in approving the plans or design.