The opinion
Filed 7/30/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PAUL CURTIS et al., B238870
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. MC021243,
v. MC021242 and MC022270)
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Randolph A. Rogers, Judge. Affirmed.
Greene, Broillet & Wheeler, Geoffrey S. Wells, Tobin M. Lanzetta; Esner,
Chang & Boyer, Stuart B. Esner, and Andrew N. Chang for Plaintiffs and
Appellants.
Collins Collins Muir + Stewart, Melinda W. Ebelhar, Christian E. Foy Nagy,
and Erin R. Dunkerly for Defendant and Respondent.
__________________________________
INTRODUCTION
Appellants Paul Curtis and his wife, Desiree Munoz, sued respondent
County of Los Angeles for injuries sustained in a vehicle collision precipitated by
another motorist, Andres Salazar Meza, while driving on Sierra Highway. The
trial court granted respondents‟ motion for summary judgment, and appellants
appealed. In affirming, we conclude that respondent showed that with the
exception of the lack of a center median space or barrier, appellants could not raise
a triable issue of fact that their injuries were “proximately caused by the dangerous
condition[s]” alleged in their complaint. The evidence established that the accident
was caused by Meza‟s intentional act of crossing the double yellow line into
oncoming traffic. With respect to any harm arising from the lack of a center
median, respondent established its entitlement to design immunity, by showing that
an authorized official exercised his discretional authority to approve plans for the
highway that included neither a median space nor a barrier.
STATEMENT OF THE FACTS
On May 18, 2009, Andres Salazar Meza was driving eastbound on Sierra
Highway, in the lane closest to the double yellow line. Curtis was driving behind
Meza, with Munoz as his sole passenger. At approximately 5:10 p.m., Meza
crossed over into the westbound lanes, hitting a vehicle driven by Shaun
Glendenning. The collision caused Glendenning‟s vehicle to spin and cross over
into the eastbound lanes, hitting appellants‟ vehicle head on.
STATEMENT OF THE CASE
On April 22, 2010, appellants filed a first amended complaint for damages,
alleging causes of action for dangerous condition of public property (Gov. Code,
2
1
§ 835) and vicarious liability (§§ 815.4 & 815.2, subd. (a)) against respondent, and
a cause of action for negligence against Meza. Appellants alleged they suffered
severe and permanent injuries as a result of a multi-vehicle traffic accident initiated
2
by Meza. They further alleged that the accident resulted from dangerous
conditions of the road, which were created by the negligent, careless, and reckless
acts or failures to act of respondent. These negligent or reckless acts or failures to
act included: (1) failure to install any barrier at the accident location, (2) failure in
the design of the width of the road, (3) failure in the design of the superelevation or
banking of the road, (4) failure to include an adequate and appropriate median area,
(5) failure in the design of the width of the shoulders, (6) failure to properly warn
of dangerous conditions, (7) failure in the striping of the road, (8) failure to
properly and adequately align the road, and (9) failure to design and maintain the
road. Appellants also alleged that the average operational speed on Sierra
Highway was 60 to 65 miles per hour (mph), and that the curve radius and
superelevation of Sierra Highway did not meet current highway design standards
for that operational speed.
Respondent filed an answer, generally denying the allegations. Respondent
asserted numerous affirmative defenses, including (1) that it was immune for the
design of the road pursuant to section 830.6, and (2) that “[t]he sole cause of the
accident . . . was the negligence of . . . M[eza] who negligently and carelessly
crossed over into an opposing lane of traffic.”
1
All further statutory citations are to the Government Code, unless otherwise
stated.
2
Meza acknowledged liability for the accident and is not a party to this
appeal.
3
On March 31, 2011, respondent filed a motion for summary judgment. It
asserted that the accident was not caused by a dangerous condition of public
property, as the road at the accident location was “safe to foreseeable users when
used with due care,” and Meza had acknowledged that his own negligence caused
the multi-vehicle accident. Respondent argued in the alternative that even if the
accident resulted from a dangerous condition of the road, it was immune from
liability pursuant to section 830.6, the design immunity statute, as the allegedly
dangerous conditions of the road were considered and approved by the Los
Angeles County Department of Public Works (DPW). Finally, respondent
contended that the cause of action for vicarious liability was not viable, as the sole
basis for imposing liability on a public entity for harms arising from alleged
property defects is section 835.
In a declaration filed in support of the motion for summary judgment,
William Winter stated that he was a licensed civil engineer who, since April 2003,
had served as an assistant deputy director and later the deputy director of the DPW.
As an assistant deputy director, he had the delegated authority to review and
approve plans for county highways. Winter stated that in 2003, he approved
“Specification and Plans” for Sierra Highway (the 2003 plans). He stated that in
preparing the 2003 plans, “DPW reviewed and considered, among other
factors, . . . the absence of a center median space and center median barrier. . . .”
Winter stated that in his professional engineering judgment, “a center
median . . . [was] not feasible due to a variety of technical reasons . . . . In
addition[,] there were property ownership reasons and environmental
considerations that would preclude any immediate change to the alignment or cross
section of Sierra Highway.” He further stated that “in order to even consider
installing a center median barrier[,] there would need to be a center median of at
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least ten feet (10‟) in width. Technical, property ownership and environmental
considerations preclude[d] any immediate installation of a center median that is 10‟
in width.”
A copy of the 2003 plans was attached to Winter‟s declaration. The plans
included design drawings showing a detailed section of Sierra Highway. The
drawings showed no median space or median barrier.
In 2007, Winter approved a “Signage Plan” for Sierra Highway, which
added yellow flashing beacons along the highway (the 2007 plans). Winter stated
that in preparing the 2007 plans, “DPW reviewed and considered the then-existing
conditions of the Sierra Highway including . . . the absence of a center
median . . . .” The design drawings for the 2007 plans show where yellow flashing
signals would be added. They showed no median space or median barrier.
Appellants opposed the motion for summary judgment, asserting that
respondent had failed to meet its burden of showing it was entitled to design
immunity. Appellants argued that “[n]either of the [2003 or 2007] interim plans
demonstrates that geometric features which plaintiffs allege caused the accident --
the curve radii and superelevation of the subject highway curves -- were even
considered, much less designed and approved by an individual with discretionary
authority to approve such geometric design features.” Assuming there was design
immunity, appellants contended it was lost when respondent allegedly
“acknowledged” that the highway had become dangerous but did not remedy the
danger in a reasonable time.
In support of the opposition, appellants submitted a declaration by Harry J.
Krueper, Jr., a licensed civil engineer and traffic engineer. Krueper stated that
after his firm was retained by appellants in 2010, the firm‟s staff conducted a field
survey of the accident site and “ball bank” tests. The field survey showed that the
5
highway lanes and shoulder widths were narrower than recommended by the
American Association of State Highway and Transportation Officials (AASHTO)
and the State of California. The ball bank tests indicated that the curve of the road
was safe for vehicles traveling at 55 mph. A spot speed test of the road indicated
that the “85th percentile speed” was 61 mph for westbound traffic, and 61.3 mph
for eastbound traffic. Based on the field survey and the ball bank and speed tests,
Krueper opined that Sierra Highway was dangerous under normal highway use.
Krueper also opined that there had been a “high accident rate” for the 0.47
mile area of Sierra Highway that included the accident site. His opinion was based
upon a review of California Highway Patrol records showing there had been 64
accidents in the decade from 1999 to 2009.
Appellants also submitted a declaration by Matthew Manjarrez. Manjarrez,
a registered civil engineer and traffic engineer, stated that Sierra Highway is
characterized by high traffic volume and high traffic speed. He stated, “[a] large
number of various count data from 2003 through 2010 . . . [showed] the average
daily traffic on Sierra Highway at the subject location was approximately 41,000
vehicles per day. This is consistent with the Engineering and Traffic Survey
conducted in November 2001, which identified an average daily traffic volume at
the subject location of 41,338.” Manjarrez also stated that in January 2006, speed
survey data showed that the 85th percentile speed of drivers on northbound Sierra
Highway traffic near the subject location was 63 mph. Speed survey data collected
in March 2006 showed the 85th percentile speed was 61 mph. Similar speeds were
recorded in April 2001, which found an 85th percentile speed of 62 mph.
Manjarrez also stated that a review of the traffic collision history report
showed there had been four cross-centerline collisions in the five-year period from
2002 through 2007. This translated to an accident rate of 0.94 per mile per year.
6
This accident rate was high, as section 7-04 of the Caltrans traffic manual
identifies a cross-centerline collision rate higher than 0.50 per mile per year as a
high rate. Manjarrez opined that “given the existing operational characteristics of
Sierra Highway coupled with its geometric characteristics, there was a substantial
risk of injury for drivers travelling through the subject location while using
reasonable care, in the manner in which the roadway was intended to be used.”
Respondent filed a reply, contending that it was Meza‟s lack of due care that
caused the accident. Respondent asserted that “[p]laintiffs have made no effort to
offer this Court any evidence demonstrating how any alleged defect caused the
accident. The proximate cause of the accident is clear: co-defendant Andres
Salazar Meza has acknowledged liability.” Respondent contended that at his
deposition, Meza testified that “while heading north on Sierra Highway . . . , he
maneuvered from the number two lane to the number one lane. . . . Meza was
traveling [at] 45-50 miles per hour, which is at or below the 50 mile per hour
posted speed limit. . . . While in the number one lane, alongside [a] trailer, Meza
saw the trailer swerve into his lane and so Meza purposefully crossed the double
yellow line. . . . Meza saw the oncoming traffic, saw the double yellow line, and
intentionally crossed it. . . . Meza did not testify that he lost control of his car in
any way. Neither he, nor his wife who was his passenger, nor anyone else in this
case has testified that any aspect of the road (let alone the signage, striping,
shoulders, median, superelevation, or curve radius) caused the accident.”
Respondent also argued that it was entitled to design immunity. It
contended that appellants had not shown loss of design immunity, as they had
produced no evidence showing a change in the physical conditions of the road after
the 2003 plans were implemented.
7
On July 26, 2011, the superior court partially granted and partially denied
the motion for summary judgment. The court granted summary judgment as to the
3
cause of action for vicarious liability, determining it was not viable. As to the
cause of action for dangerous condition of public property, the court held that
respondent was not entitled to design immunity. The court determined that no
evidence showed Winter had considered superelevation and curvature radii in the
design of the highway. Finally, the court ordered the parties to provide further
briefing, including expert evidence, on the issue “whether a reasonable trier of fact
could find it was probable that [appellants‟] injuries were proximately caused by
the [dangerous] conditions [they] identified.” The court subsequently continued
the hearing on the motion for summary judgment to September 13, 2011.
On August 17, 2011, appellants filed their brief on causation. They argued
that they had provided “expert declarations which raise[d] triable issues of material
fact concerning how each of the numerous alleged dangerous conditions -- small
and inconsistent curve radius, lack of superelevation, high speeds, inconsistent lane
width, minimal paved shoulders, no separation between vehicles traveling in
opposite directions, and high traffic volume -- were a substantial factor in causing
the accident.” Appellants contended that Meza‟s negligence did not foreclose the
possibility that the alleged dangerous conditions of the road contributed to the
accident. Appellants argued there was a triable issue of material fact as to whether
“Meza crossed the centerline because he was unable to safely negotiate the curve
due at least in part to the dangerous features of the subject roadway.”
In a supplemental declaration in support of appellants‟ brief on causation,
Manjarrez opined that “the existing operational characteristics of Sierra Highway
coupled with its geometric characteristics were a contributing cause of the subject
3
Appellants do not challenge this ruling on appeal.
8
collision.” He asserted that the superelevation and curve radius “increased the risk
of a driver losing control.” He also stated that the subject area had minimal paved
shoulders. Thus, “drivers who begin to leave the roadway to the right have a
propensity to over-correct and lose control traveling towards oncoming traffic.”
He also asserted that “the lack of a median separation increased the risk that a
driver would inadvertently enter oncoming traffic lanes.” Finally, he asserted that
“the high traffic volume at the subject location results in a significant risk that
vehicles crossing the centerline will collide with one or more vehicles traveling in
the opposite direction.”
Krueper also filed a supplemental declaration in support of appellants‟ brief
on causation. Krueper reiterated his prior opinion that the features of the road were
dangerous under anticipated and normal highway use. In addition, he stated that
“Meza claims that as he drove in the number one lane . . . , a vehicle in the number
2 [lane] moved over slightly into the number one lane of travel. Mr. Meza claims
that this caused him to swerve into oncoming [traffic].” Krueper opined that “if
Mr. Meza‟s claims are to be believed, it is my opinion to a reasonable degree of
probability in my field of expertise that the features or lack thereof of the roadway,
as detailed above including but not limited to the lack of center median space or
barrier, inadequate shoulder width, inadequate lane width and inadequate super
elevation and curve radii[,] were a cause that contributed to the collision that
injured Plaintiffs because there existed a lack of recovery area.”
Krueper also stated: “Additionally, based upon the deposition of Officer
Russell Moore and his traffic collision report, only Mr. Meza reported seeing a
vehicle in the number two lane. . . . Therefore, if Mr. Meza is mistaken and there
was no vehicle intruding into his lane of travel, and he failed to negotiate the
subject roadway, it is still my opinion . . . that the features or lack thereof of the
9
roadway, as detailed above including but not limited to the lack of center median
space or barrier, inadequate shoulder width, inadequate lane width and inadequate
super elevation and curve radii[,] were a cause that contributed to the collision that
injured Plaintiffs, as detailed above.”
Respondent‟s brief addressing causation argued that the sole cause of the
collision was “a purposeful and knowing driving maneuver by . . . Meza.”
Respondent asserted that: “Plaintiffs‟ counsel questioned Meza at length during
[his] deposition, but never asked Meza whether his driving was affected in any
way by the allegedly defective road conditions identified in Plaintiffs‟ complaint.
In contrast, County‟s attorney did ask Meza whether there was anything wrong
with the roadway, and Meza said no.”
Respondent also addressed each of the issues raised by appellants‟ experts in
their supplemental declarations. As to superelevation, curve radii and high speeds,
respondent noted that Meza was traveling at 45 to 50 mph, which was within the
“validated safe „ball bank‟ speed.” As to lane width, respondent argued that
Krueper never defined “„drivability‟” or “„loss of “recovery area.”‟” Respondent
contended that “[d]isregarding lack of clarity, the larger problem is that Mr.
Krueper does not explain how much lane width was needed to prevent this accident
from happening, or how any particular lane width would have had any effect on
Meza‟s decision to drive his truck toward oncoming traffic in an effort to avoid a
vehicle Meza thought was encroaching on his lane.” As to the shoulder width,
respondent noted that the accident occurred when Meza swerved toward his left.
Thus, the inadequacy of the shoulders on the right side of the highway was not
legally relevant to the accident. As to median separation, respondent argued that
appellants‟ experts did not provide a foundation to support their argument on
causation. Finally, as to high traffic volumes, respondents argued that neither
10
expert addressed the causal relationship between high traffic volumes and the
instant accident.
On September 9, 2011, appellants filed a reply brief, contending that their
experts‟ opinions were fully admissible and raised triable issues of material fact on
causation. Appellants contended that Meza‟s deposition testimony about his
actions during the accident was disputed. They asserted that “not one of the other
motorists or passengers on the roadway saw a truck towing a motor home. Rather,
these witnesses all agree that Mr. Meza did not drive over the center line in
response to such a truck. Thus, the investigating officer‟s report and the deposition
testimony of the two plaintiffs and another eyewitness (attached [to the reply
brief]), establish that no one saw the „phantom vehicle‟ that Meza claims he tried
to avoid by driving across the center line.”
Appellants attached excerpts from the depositions of Curtis and Munoz, and
an excerpt of the uncertified rough draft of the deposition of Kimberly K. Dobson,
who was the sole passenger in Glendenning‟s vehicle. In his deposition, Curtis
was asked, “Did you see a truck at all begin to enter into the number 1 lane from
the number 2 lane at all, prior to the impact?” He answered, “Not that I
remember.” In Munoz‟s deposition, counsel asked her, “Do you remember any
vehicles that were in the number two lane proceeding in the same lane of travel
before the impact?” She replied, “I don‟t know.” Finally, in Dobson‟s deposition,
counsel asked, “”Did you notice any other vehicles next to or near the driver who
ultimately struck you? Meaning did you notice a vehicle in the number two lane of
the [eastbound] traffic?” She answered, “No.” Counsel also asked, “Before the
collision, did you notice any vehicle in northbound traffic, meaning opposing you,
that was pulling a trailer just before the collision?” She answered, “No.”
11
On September 12, 2011, respondent moved to strike appellants‟ reply brief
on causation, arguing that appellants had failed and refused to serve the reply brief
in a timely and nonprejudicial manner.
On September 13, 2011, after the hearing on the motion, the court granted
respondent‟s motion for summary judgment. In its written statement of decision,
the court did not list appellants‟ reply brief on causation among the documents it
considered in reaching its decision. The court concluded that respondent was
entitled to summary judgment because: (1) appellants failed to establish triable
issues of material fact as to whether the superelevation, curve radii and shoulder
and lane widths of the subject road constituted dangerous conditions of public
property; (2) appellants failed to establish a triable issue of fact as to causation; and
(3) respondent was entitled to design immunity as to whether the lack of a median
or barriers caused or contributed to the subject accident.
After judgment in favor of respondent was entered, appellants timely
appealed.
DISCUSSION
Appellant contends the trial court erred in granting summary judgment. For
the reasons explained below, we disagree.
A. Standard of Review
“A defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff‟s asserted causes of action can prevail.
[Citation.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Generally,
“the party moving for summary judgment bears an initial burden of production to
make a prima facie showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift, and the opposing
party is then subjected to a burden of production of his own to make a prima facie
12
showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850.) In moving for summary judgment, “all
that the defendant need do is to show that the plaintiff cannot establish at least one
element of the cause of action—for example, that the plaintiff cannot prove
element X.” (Id. at p. 853.)
“„Review of a summary judgment motion by an appellate court involves
application of the same three-step process required of the trial court. [Citation.]‟”
(Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662.) The
three steps are (1) identifying the issues framed by the complaint, (2) determining
whether the moving party has made an adequate showing that negates the
opponent‟s claim, and (3) determining whether the opposing party has raised a
triable issue of fact. (Ibid.)
“Although we independently review the grant of summary judgment
[citation], our inquiry is subject to two constraints. First, we assess the propriety of
summary judgment in light of the contentions raised in [appellant‟s] opening brief.
[Citation.] Second, to determine whether there is a triable issue, we review the
evidence submitted in connection with summary judgment, with the exception of
evidence to which objections have been appropriately sustained. [Citations.]”
(Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th
1118, 1124.)
B. Analysis
Appellants asserted a cause of action for dangerous condition of public
property under section 835. Section 835 provides that “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, [and] that the
13
dangerous condition created a reasonably foreseeable risk of the kind of injury
which was incurred . . . .”
As explained below, with respect to the conditions other than the absence of
a center median space or barrier allegedly responsible for the accident, appellants
failed to raise a triable issue of fact as to causation. Respondent‟s evidence
established that the accident was caused by Meza‟s purposeful decision to cross the
double yellow line into oncoming traffic. With respect to harm allegedly resulting
from the absence of a center median space or barrier, respondent established its
entitlement to design immunity under section 830.6, by producing uncontroverted
evidence that DPW Deputy Director Winter exercised his discretionary authority to
4
approve plans in 2003 and 2007 that included neither a median space nor barrier .
1. Causation
Appellants contend the trial court erred in granting summary judgment on
the ground of lack of proximate causation because the dangerous road conditions
were substantial factors in causing the accident. We disagree.
In his deposition, Meza testified he intentionally swerved to his left and into
oncoming traffic to avoid a trailer that encroached into his lane. His statement to
the highway patrol officer at the accident site was consistent with his deposition
testimony. Meza never identified any condition of the road that caused him to lose
control of his vehicle. No witness contradicted Meza‟s explanation for his actions.
Nor was any witness competent to testify as to Meza‟s state of mind at the time of
the accident. On this point, Chowdhury v. City of Los Angeles (1995) 38
4
In granting summary judgment, the trial court further found that appellants
had failed to show the property was in a dangerous condition at the time of the
accident. On appeal, respondent does not assert this ground as a basis for
affirming the grant of summary judgment. As we find summary judgment was
properly granted on the two grounds stated above, we need not address the issue.
14
Cal.App.4th 1187 is instructive. There, an area-wide electrical power failure
rendered all the traffic lights inoperative. A motorist, Lim, failed to stop before
proceeding through an intersection, resulting in a fatal accident. (Id. at p. 1190.)
Lim testified he did not stop at the intersection because he had a green light. (Id. at
p. 1193.) Plaintiff‟s expert opined, however, that Lim may have “„felt he had the
right of way‟” because the intersection lacked temporary pedestal stop signs that
had been posted at prior intersections. Finding no evidence that the stop signs
were a substantial factor in causing the accident, the Court of Appeal observed:
“Lim did not testify that his failure to stop at the intersection . . . was caused by
some confusion created by the pedestal stop signs he had previously encountered.
Lim unequivocally testified that he did not stop because he had a green light.
From this, a fact finder could infer that Lim (1) suffered a visual misperception, or
(2) was lying to justify his failure to stop at the nonfunctioning light. It cannot be
inferred from the testimony that Lim was confused by the pedestal stop signs. The
testimony of [plaintiff‟s] expert that Lim „felt he had the right of way‟ due to the
pedestal stop signs is pure conjecture and surmise, attributing thoughts to Lim that
Lim denied having . . . .” (Id. at p. 1197.) The same is true here. Meza
acknowledged that he crossed the yellow line into oncoming traffic intentionally,
not inadvertently, and not because any condition of the roadway caused him to lose
control of his vehicle. Thus, appellant‟s experts‟ suggestion that Meza may have
“inadvertently enter[ed] oncoming traffic lanes” or otherwise “failed to negotiate
the subject roadway” is both speculative and refuted by Meza‟s own testimony.
Appellants contend they produced evidence in their reply brief on causation
showing that no one saw a “phantom vehicle” encroach into Meza‟s lane. The trial
court impliedly excluded this evidence, as the court did not consider the reply brief
in its decision. Appellants do not challenge the exclusion of this evidence on
15
appeal, and thus have forfeited the argument. Even if considered, however, the
evidence does not contradict Meza‟s testimony. The fact that neither Curtis nor
Munoz could remember seeing a vehicle encroach into Meza‟s lane does not
contradict his testimony of what he saw. Dobson‟s testimony is from an
uncertified rough partial transcript. Assuming its admissibility, her testimony does
not create a triable issue of material fact, as it does not contradict Meza‟s
testimony; there is simply no basis to infer that Dobson, a passenger in a vehicle on
a multi-lane highway, would notice a vehicle two lanes away on the other side of
the highway. More important, even if the truck was a figment of Meza‟s
imagination, it is uncontroverted that he purposefully and knowingly crossed over
the double yellow line into oncoming traffic. In short, it was Meza‟s volitional
conduct -- not any condition of the road -- that caused the accident.
Appellants next contend their experts‟ opinions raised triable issues of
material fact as to causation. We disagree. The superelevation and curve radii
were purportedly dangerous for vehicles going at speeds in excess of 55 mph.
However, Meza‟s uncontroverted testimony was that he was driving at 45 to 50
mph. Similarly, no evidence showed the other vehicles involved in the accident
exceeded the “safe speed.” Thus, appellants have failed to show a causal
relationship between the subject accident and the superelevation and curve radii of
the road.
Likewise, appellants have not shown a causal relationship between the high
traffic volume and high traffic speeds and the subject accident. As noted, the
vehicles involved were not traveling at dangerously high speeds. Nor was there
any evidence that the accident was caused or exacerbated by a high volume of
traffic. Nothing suggested that the drivers involved were impeded from taking
evasive action by the volume of traffic surrounding their cars.
16
Finally, appellants have not shown a causal connection between the
purportedly inadequate and inconsistent lane and shoulder widths and the subject
accident. No evidence showed that the accident could have been prevented if the
lanes and shoulders were wider. For example, a wider shoulder would not have
assisted Meza, as he swerved to the left and the shoulders are on the right side of
the road. Similarly, there was no evidence that Glendenning had time to evade
Meza‟s vehicle by swerving toward his right across two lanes of traffic. In short,
appellants have not shown a triable issue of material fact that the physical
conditions of the road (aside from the lack of a median space or barrier) were
substantial factors in causing the accident.
2. Design Immunity
The trial court impliedly found that a median separation or a median barrier
could have prevented the subject accident. A median space might have allowed
Meza to avoid the encroaching truck without entering into the driving lane of
oncoming traffic; a median barrier would have physically prevented Meza from
crossing the divider into oncoming traffic. The court found, however, that
respondent was immune from liability under section 830.6.
Section 830.6 provides that a public entity is not liable 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 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
reasonable public employee could have adopted the plan or design or the standards
therefor . . . .” Thus, in order to demonstrate entitlement to design immunity, a
17
public entity must establish “three elements: (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 (2001)
26 Cal.4th 63, 69 (Cornette).)
Here, appellants do not dispute there was a causal relationship between the
lack of a median space or barrier and the accident. Indeed, the complaint and
appellants‟ expert opinions alleged the lack of a median space or barrier caused or
substantially contributed to the accident.
As to the second element, respondent presented evidence that DPW Deputy
Director Winter considered and exercised his discretionary authority to approve
plans that did not include a median space or barrier. The design drawings for the
2003 and 2007 plans show neither a median space nor a barrier. Winter stated that
in his professional engineering judgment, “a center median . . . [was] not feasible
due to a variety of technical reasons . . . .” He further stated that “in order to even
consider installing a center median barrier[,] there would need to be a center
median of at least ten feet (10‟) in width. Technical, property ownership and
environmental considerations preclude[d] any immediate installation of a center
median that is 10‟ in width.” The drawings and declaration are sufficient to show
that Winter considered a median space and/or barrier, but rejected those features in
the exercise of his discretionary authority. (See Sutton v. Golden Gate Bridge,
Highway. & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1159 [District‟s
board of directors made decision to omit median barrier after authorizing a design
that did not include a median barrier, following review of a study on feasibility and
desirability of installing median barrier]; see also Wyckoff v. State of California
(2001) 90 Cal.App.4th 45, 55 [state entitled to design immunity because design
18
drawings showed a median space only; absence of median barrier thus was part of
design].)
Appellants‟ reliance on Cameron v. State of California (1972) 7 Cal.3d 318,
325-326 (Cameron), and Hernandez v. Department of Transportation (2003)
114 Cal.App.4th 376, 387-388 (Hernandez), is misplaced. In Cameron, the
Supreme Court rejected design immunity as to superelevation of the subject road
because “[t]he state merely showed that the Santa Cruz Board of Supervisors
approved a design showing the course of the right of way and the elevation above
sea level of the white center stripe for the road. The design plan contained no
mention of the superelevation intended or recommended.” (Cameron, at p. 326.)
In contrast, here, the absence of a median space or barrier was part of the design.
In addition, because the subject road in Cameron would necessarily have had some
degree of superelevation, the failure to specify the degree suggested that it was not
considered. Here, in contrast, the absence of a median space or barrier does not
suggest a similar lack of consideration.
In Hernandez, the appellate court rejected a finding that design plans were
approved by authorized Caltrans officials because of conflicting evidence.
(Hernandez, supra, 114 Cal.App.4th at p. 388.) The conflicting evidence included:
(1) expert testimony that any deviation from Caltrans guidelines required formal
documentary approval that was not produced in the case; and (2) an admission by
Caltrans‟s own expert that “he did not know whether any of the three engineers
who signed the as-built plans actually considered the guardrail installation
guidelines and approved the purported deviation from the guidelines‟
requirements.” (Id. at p. 381.) No such conflicting evidence was presented here.
Although appellants argued that the lack of a median space or barrier created a
dangerous condition of the road, they did not allege that the lack of a median space
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5
or barrier was a “deviation” from any guideline. Moreover, DPW Deputy Director
Winter stated he considered and approved plans that clearly did not include a
median space or barrier. Additionally, he set forth reasons why such a feature was
not then feasible.
As to the final element, in their opening brief, appellants do not address the
reasonableness of a lack of a median space or barrier. Thus, they have forfeited
any argument on this point. Even were we to consider the contention, we would
reject it. “[A] detailed plan, drawn up by a competent engineering firm, and
approved by [an official] in the exercise of [his] discretionary authority, is certainly
persuasive evidence of both elements of prior approval and reasonableness for
purposes of the design immunity defense.” (Anderson v. City of Thousand Oaks
(1976) 65 Cal.App.3d 82, 89-90, fn. omitted.) In addition, it is not unreasonable
not to install a median barrier. As courts have recognized, “[m]edian barriers
result in a trade-off. They prevent nearly all cross-median accidents, but usually
result in an overall increase in accidents and injuries. A median barrier is a fixed
object which, when hit, can cause serious injury either by direct impact or by
deflecting vehicles back into traffic. In addition, a barrier eliminates half the
recovery area for out-of-control vehicles.” (Alvarez v. State of California (1999)
79 Cal.App.4th 720, 724, overruled on other ground in Cornette, supra, 26 Cal.4th
at p. 74, fn. 3.) In short, respondent has shown that it was entitled to design
immunity.
5
In their reply brief, appellants assert they presented evidence that “the
County‟s lack of a median or barriers did not comply with section 7-04 of the
Traffic Manual.” The record citation does not support this assertion, as appellants‟
evidence showed only that section 7-04 provides guidelines concerning what
constitutes a “high” accident rate.
20
Appellants contend that respondent lost its design immunity. “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.” (Cornette, supra, 6 Cal.4th at p. 66.)
Appellants contend they have produced evidence showing a triable issue of
material fact as to each of these elements. We disagree.
“[E]vidence of changed conditions must be evidence that physical conditions
at a specific location have changed in such a manner that the original design has
created a dangerous condition of which the entity has notice.” (Dole Citrus v.
State of California (1997) 60 Cal.App.4th 486, 494.) Appellants contend they
have shown increased traffic flow, speed, and accident rate over the prior decade.
However, their evidence does not show a changed condition after the 2003 or 2007
plans were approved. For example, Manjarrez stated that “[a] large number of
various traffic count data from 2003 through 2010 . . . [showed] the average daily
traffic on Sierra Highway at the subject location was approximately 41,000
vehicles per day. This is consistent with the Engineering and Traffic Survey
conducted in November 2001, which identified an average daily traffic volume at
the subject location of 41,338.” Based on this testimony, there was no
demonstrated change in traffic flow.
Similarly, Manjarrez stated that in April 2001, speed data surveys showed
the 85th percentile speed for vehicles on the highway was 62 mph. In January
21
2006, the 85th percentile speed was 63 mph , and in March 2006, it was 61 mph.
Krueper testified that in 2010, his firm conducted a speed survey showing the 85th
percentile speed was 61 mph. This testimony indicated there had been no material
change in traffic speed between 2001 and 2010.
Finally, as to the accident rate, Manjarrez stated there had been four cross-
centerline collisions between 2002 and 2007. Krueper stated there had been 64
accidents over the decade from 1999 through 2009. However, no analysis of any
change in accident rate over those time periods was produced. Thus, the evidence
cannot create a triable issue of material fact as to the first of the three elements
required to show that respondent lost its design immunity. Accordingly, appellants
6
have failed to show a triable issue of fact as to loss of design immunity.
In short, we discern no error in the trial court‟s decision granting summary
judgment on the grounds (1) that the alleged dangerous conditions of Sierra
Highway (except for the lack of a median space or barrier) were not the legal cause
of the accident that resulted in appellants‟ injuries, and (2) that respondent was
6
As to the other two elements required to show loss of design immunity,
appellants have failed to raise triable issues of fact as to either. With respect to
respondent‟s knowledge of a dangerous condition because of a change in physical
condition, in the absence of evidence of change, there can be no knowledge. The
subsequent 2008 plans to widen the highway do not demonstrate the highway was
dangerous prior to 2008. “It is just as likely that the previous designs were quite
adequate for their intended purpose and that the new [plans] only represent an
attempt to improve the design. After all, an old mousetrap may still work
effectively even after someone invents a better one.” (Dole Citrus v. State of
California, supra, 60 Cal.App.4th at p. 493.) With respect to the reasonableness of
the time required to widen the highway, DPW Deputy Director Winter testified
that technical, property ownership and environmental considerations precluded
changes in 2003. The 2008 plans had a projected completion date of 2011. The
accident occurred in May 2009, and nothing suggests the 2007 signage plans were
not a reasonable attempt to provide adequate warnings pending completion of the
2008 plans.
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immune from liability for not including a median space or barrier in the design of
Sierra Highway.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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