There is a jurisdictional split on whether cities are liable for a failure to warn

Garret D. Murai's guest column in the Oct. 4 edition of the Daily Journal, "Design Immunity doesn't always shield liability from failure to warn," discusses the case of Tansavatdi v. City of Rancho Palos Verdes, 20210 60 Cal.App.5th 423. I (along with David Ferrante-Alan, Lynne Rasmussen, and Anna Birenbaum) represent the defendant city in Tansavatdi. I write to correct some significant omissions and errors in Mr. Murai's column.

The final paragraph of the column appears to treat the Tansavatdi case as establishing that "Design immunity under Government Code section 830.6 does not in and of itself shield a public entity from a claim that the public entity failed to warn of a concealed dangerous condition under Government Code section 835." But the column omits that there is a split of law on this subject. Two published cases have held that Government Code section 830.6 design immunity does protect public entities from liability for failure to warn of a dangerous condition. (Weinstein v. Dept. of Trans. (2006) 139 Cal.App.4th 52, 61; Compton v. City of Santee (1993) 12 Cal.App.4th 591, 600.)

More significantly, the column omits that the California Supreme Court granted review of Tansavatdi on April 21, 2021. The issue pending before the California Supreme Court in Tansavatdi is the same one Mr. Murai addresses in his column: "Can a public entity be held liable under Government Code section 830.8 for failure to warn of an allegedly dangerous design of public property that is subject to Government Code section 830.6 design immunity?"

The Supreme Court has further ordered that, "Pending review, the opinion of the Court of Appeal, which is currently published at 60 Cal.App.5th 423, may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict." (Id.)

Further, the column identifies Government Code section 835 as "a separate body of law that butts up against the design immunity protections afforded by Government Code section 830.6." That is inaccurate. Government Code section 835 establishes statutory liability for dangerous conditions of public property. Government Code section 830.6 creates an immunity to liability that would otherwise exist under Government Code section 835. A statutory immunity to a statutory liability provision is not "a separate body of law" from the immunity provision, and does not "but[t] up" to the immunity provision.

Tansavatdi actually addresses the interaction of Government Code section 830.8 with section 830.6. Section 830.8 immunizes public entities from liability under section 835 for injury caused by failure to provide traffic or warning signals, but exempts injury caused by failure to warn of a dangerous condition that would not be reasonably apparent to a person exercising due care. The issue before the Supreme Court in Tansavatdi is whether section 830.6 design immunity applies to liability for such a condition.

The column leaves a reader with the impression that the issue is settled. The Supreme Court's grant of review in Tansavatdi establishes that it is not.