The opinion
Filed 10/30/23 Modified and Certified for Pub. 11/28/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KIERRA STUFKOSKY et al. 2d Civ. No. B317192
(Super. Ct. No. 18CV04079)
Plaintiffs and Appellants, (Santa Barbara County)
v.
CALIFORNIA DEPARTMENT
OF TRANSPORTATION,
Defendant and Respondent.
Jorgen Stufkosky died in a multi-car accident caused by a
deer crossing State Route 154 (SR-154). His children, appellants
Kierra and Merek Stufkosky, sued respondent California
Department of Transportation (Caltrans) and others for
negligence. They alleged the road constituted a dangerous
condition under Government Code section 835.1 The trial court
found that design immunity applied to Caltrans and granted
1 All unmarked statutory references are to the Government
Code.
summary judgment. We agree and affirm the judgment in favor
of Caltrans.
FACTUAL AND PROCEDURAL BACKGROUND
Martha Aguayo struck a deer while driving westbound on
SR-154 near Santa Ynez, California. The impact sent the deer
into the eastbound lane where it struck an oncoming SUV. The
SUV lost control, veered across the centerline, and collided head
on with a westbound car driven by Jorgen Stufkosky. Stufkosky
died of the injuries caused by the collision.
SR-154 is a state owned highway built in 1934 and
realigned to its current location in 1971. The accident occurred
at postmile 9.62, where the highway has two westbound lanes,
one eastbound lane, and a posted speed limit of 55 miles per
hour. A four-foot-wide painted median with rumble strips
separates traffic. Six deer warning signs appear along the 15-
mile segment of the highway in which the accident occurred.
Caltrans installed the two closest signs in 1979: one facing
eastbound traffic at postmile 8.55; the other facing westbound
traffic at postmile 13.8. It moved the latter to postmile 12.55 in
1982 at the request of the Department of Fish and Game.
Appellants sued Caltrans for negligence and dangerous
condition of public property, alleging SR-154’s design, lack of deer
crossing signs, and high speed limit created a substantial risk of
injury to motorists. The trial court granted summary judgment
for Caltrans on the ground that design immunity shielded it from
liability under section 830.6.2
2 The trial court rejected two alternative arguments made
by Caltrans: (1) that no dangerous condition existed as a matter
of law; and (2) that section 831.2’s “natural condition immunity”
applied as well. We need not address them here because we
affirm on the basis of section 830.6.
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DISCUSSION
Appellants contend the trial court erred when it found
design immunity was a complete defense to Caltrans’ liability.
They also contend the court failed to address a separate basis of
liability, failure to warn, when it ruled on the motion for
summary judgment. Neither argument is persuasive.
Design Immunity
“[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, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and
that . . . [t]he public entity had actual or constructive notice of the
dangerous condition . . . a sufficient time prior to the injury to
have taken measures to protect against the dangerous condition.”
(§ 835.) The public entity may seek to shield itself from liability
by claiming design immunity under section 830.6.3 This requires
3 Section 830.6 provides in pertinent 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 therefor.”
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the entity to “show the existence of 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.”’” (Grenier
v. City of Irwindale (1997) 57 Cal.App.4th 931, 939 (Grenier).)
“Design immunity is . . . often raised on a motion for
summary judgment or nonsuit, [thereby] enabling the trial court
to find the defense established as a matter of law.” (Grenier,
supra, 57 Cal.App.4th at 939-940.) “‘The normal rules governing
a motion for summary judgment, and requiring its denial if any
triable issue of fact appears, are not fully applicable [to cases
involving design immunity under . . . section 830.6]. For
example, the defendant is not required to prove to the court that
the design or plan was in fact a reasonable one. Instead, the
defendant is merely required to adduce any ‘substantial evidence’
that a reasonable public employee or legislative body could have
approved the plan or design used under [section] 830.6. Thus,
when the defendant files a motion for summary judgment, the
existence of a possible conflict of evidence, as shown by the proof
submitted on the motion, will not create a triable issue on this
aspect of the defense that can defeat a summary judgment . . . .’”
(Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 50-51,
quoting 2 Cal. Government Tort Liability Practice (Cont.Ed.Bar
4th. ed. 2001) Dangerous Condition of Public Property, § 12.74,
p. 842.)
1. Causal Relationship Between Design Plans
and the Accident
Appellants contend Caltrans cannot establish a causal
relationship between SR-154’s design and the accident because
Caltrans did not produce evidence that it “expressly consider[ed]”
the design alternatives they contend would have prevented it,
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such as lowering the speed limit, placing more deer crossing
signs, or installing median barriers. (See Higgins v. State of
California (1997) 54 Cal.App.4th 177, 185 [“Design immunity is
intended to immunize only those design choices which have been
made”].) We conclude otherwise. Such evidence is not necessary
because the complaint clearly alleges the required causal
connection. (See Alvis v. County of Ventura (2009) 178
Cal.App.4th 536, 550 [public entity “may rely on the allegations
of the complaint to establish causation”].)
Appellants allege Caltrans was “well aware of deer
entering the roadway in the area of the accident” yet failed to
safeguard motorists or warn them adequately of the danger in
violation of section 835. They also allege Caltrans “owned,
planned, programmed, prioritized, designed, constructed,
contracted, maintained, repaired, controlled, managed,
monitored, replaced, signed, signaled, lighted, striped, painted,
and/or entered into contracts, leases and easements in regards to
the Subject Roadway.” Appellants’ theory of the case, in sum, is
that Caltrans designed SR-154 without certain specific features
they contend would have made the highway safer. Caltrans need
not produce additional evidence to prove this point.
2. Discretionary Approval of the Design
The “discretionary approval” element of design immunity
has two parts: (1) the design must have “been approved in
advance . . . by the legislative body of the public entity or by some
other body or employee exercising discretionary authority to give
such approval”; or (2) the design must have been “prepared in
conformity with standards previously so approved.” (§ 830.6.)
Appellants contend Caltrans cannot establish these criteria for
the same reason it cannot establish the requisite causal
connection, i.e., because the agency did not consider certain
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safety features that would have prevented the accident. The
decision “not to include a feature in a project,” they again argue,
is shielded by design immunity only if the public entity “expressly
considered” that feature in advance of the decision. They again
misinterpret what Caltrans must show.
Advance approval “simply means approval in advance of
construction by the legislative body or officer exercising
discretionary authority.” (Ramirez v. City of Redondo Beach
(1987) 192 Cal.App.3d 515, 526.) “A detailed plan, drawn up by a
competent engineering firm, and approved by a city engineer in
the exercise of his or her discretionary authority, is persuasive
evidence of the element of prior approval.” (Grenier, supra, 57
Cal.App.4th at p. 940.) Caltrans submitted detailed plans for the
area of SR-154 where the accident occurred. A traffic engineer
attested to the applicable design standards and how Caltrans
addressed the dangers posed by deer entering traffic and vehicles
crossing the median. This constitutes substantial evidence of
advance approval. We will not second-guess the decision of
Caltrans to include or omit certain design features. “[T]he law’s
purpose is to avoid the dangers involved in permitting
reexamination and second-guessing of governmental design
decisions in the context of a trial.” (Hampton v. County of San
Diego (2015) 62 Cal.4th 340, 349.)
Appellants cite authorities in which the public entity
introduced evidence that it considered a particular design feature
but decided not to include it. (See, e.g., Fuller v. Department of
Transportation (2001) 89 Cal.App.4th 1109, 1115 [speed limit left
unchanged after speed study conducted]; Sutton v. Golden Gate
Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th
1149, 1161 [center median considered but rejected because safety
study concluded it would increase traffic congestion].) But these
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cases do not hold that public entities must present such evidence.
Limiting design immunity to those features expressly considered
would be tantamount to requiring public entity to address all
conceivable design features during the approval process. They
need not do so. (See Rodriguez v. Dept. of Transportation (2018)
21 Cal.App.5th 947, 956 [project engineer’s “fail[ing] to consider
the particular feature or design” did not vitiate discretionary
approval element of design immunity]; Alvarez v. State of
California (1999) 79 Cal.App.4th 720, 734-735 [establishing
discretionary approval did not require the state to make a
“detailed showing” about what factors persuaded its engineers
not to install a median barrier].)
Appellants also cite authorities involving public entities
that could produce no design plan at all, or a plan so rudimentary
it could be inferred absent features were not considered. (See,
e.g., Martinez v. County of Ventura (2014) 225 Cal.App.4th 364,
370 [public entity produced no design plan or shop drawing for
“top-hat” style drain struck by injured motorcyclist]; Cameron v.
State of California (1972) 7 Cal.3d 318, 324 (Cameron) [public
entity produced no evidence that uneven banking on “S” curve
“was part of a duly approved design or plan of the highway”].)
These are inapposite because, as stated above, Caltrans produced
detailed plans of the relevant stretch of highway.
3. Substantial Evidence Supports
the Reasonableness of the Design
The third element of design immunity exists “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 therefor.” (§ 830.6.)
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“‘Any substantial evidence’ to establish this third element
of the immunity may consist of the following: [1] Discretionary
approval of the design plans themselves [citation]; [2] the expert
opinion of a civil engineer as to the reasonableness of the design
[citation]; or [3] evidence the design or plan complies with
prevailing professional standards [citation].” (Menges v.
Department of Transportation (2020) 59 Cal.App.5th 13, 21
(Menges).) “By deciding on a ‘reasonableness’ standard, the
Legislature intended that government officials be given extensive
leeway in their decisions concerning public property.” (Ramirez
v. City of Redondo Beach, supra, 192 Cal.App.3d at p. 525.)
Caltrans presented substantial evidence of the highway
designs’ reasonableness. Appellants did not dispute the plans
used to construct SR-154 were properly approved and complied
with prevailing design standards. Nor did they dispute Caltrans
placed deer warning signs east and west of the accident site.
These facts alone are sufficient to show the approved design
plans were reasonable. (Menges, supra, 59 Cal.App.5th at p. 21.)
Caltrans also submitted the declaration of Christian
Engelmann, a registered civil engineer and traffic engineer, who
reviewed collision data collected over eight years in the area of
the accident. He determined none of the 12 documented
accidents involved a deer crossing or head-on collision. Only one
involved a cross-centerline collision. The collision rate was below
the statewide average for similar locations. Over 40 million
vehicles had traveled through the accident site during that
period.
Engelmann described how Caltrans uses a centerline
collision monitoring system to identify locations that warrant
further study. Caltrans then evaluates those locations to
determine whether median barriers would improve safety. The
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location in this case was not identified by the system.
Engelmann opined that no additional deer warning signs were
warranted. In addition, Caltrans set the 55 mile per hour speed
limit pursuant to Vehicle Code section 22349.4 He concluded
Caltrans reasonably approved all relevant plans for SR-154
before construction and that the overall design was reasonable as
designed and at the time of the accident.
Appellants did not dispute any of the facts upon which
Engelmann relied. They nevertheless contend on appeal that his
opinion lacks evidentiary support because he considered an
“unreasonably small area” and “unrealistically tiny” segment of
SR-154. Appellants’ expert, Edward Ruzak, opined that
considering a larger area would have revealed a far greater
number of collisions involving wildlife and centerline crossings
during the same period.
“Generally, a civil engineer’s opinion regarding
reasonableness is substantial evidence sufficient to satisfy this
element. [Citation.] Approval of the plan by competent
professionals can, in and of itself, constitute substantial evidence
of reasonableness. [Citation.]” (Grenier, supra, 57 Cal.App.4th at
p. 941.) “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
4 Vehicle Code § 22349 subdivision (b) provides: “[N]o
person may drive a vehicle upon a two-lane, undivided highway
at a speed greater than 55 miles per hour unless that highway, or
portion thereof, has been posted for a higher speed by the
Department of Transportation or appropriate local agency upon
the basis of an engineering and traffic survey.” Passing lanes are
not considered when determining the number of lanes. (Id., subd.
(b)(2).)
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contradicted. [Citations.]” (Id. at p. 940.) “That a plaintiff’s
expert may disagree does not create a triable issue of fact.” (Id.,
at p. 941.)
We conclude substantial evidence showed that a reasonable
public employee would have adopted the SR-154 design plans,
even without the features and changes appellants contend
Caltrans should have considered and included.
Failure to Warn
Appellants contend the trial court did not address their
separate and independent allegation that Caltrans created a
dangerous condition on SR-154 when it failed to adequately warn
drivers of deer crossings. Appellants posit that even if design
immunity shields Caltrans from liability for a dangerous
condition created by a reasonable design decision, it does not
protect Caltrans from liability for failure to warn motorists of
that condition. They cite the Supreme Court’s recent decision in
Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639
(Tansavatdi) in support of this argument.5 We are not
persuaded.
Tansavatdi held that design immunity did not shield a city
from liability for a “concealed trap” created by a bicycle lane that
abruptly ended and placed cyclists into traffic. (See Tansavatdi,
supra, 14 Cal.5th at p. 667, citing Cameron, supra, 7 Cal.3d 318
[design immunity “does not permit it to remain silent when it has
notice that an element of the road design presents a concealed
danger to the public”].)
The Supreme Court, however, declined to decide the issue
presented here: whether design immunity “affect[s] a failure to
5 The Supreme Court decided Tansavatdi after the parties
completed briefing. We requested and received supplemental
briefs discussing the effect, if any, of the decision on this appeal.
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warn claim when a public entity does produce evidence that it
considered whether to provide a warning.” (Tansavatdi, supra,
14 Cal.5th at p. 661, italics added.) Caltrans produced evidence
that its design plans specified the quantity and placement of deer
crossing signs. Appellants did not dispute Caltrans warned
motorists of this danger, only that it did not do so adequately.
The trial court resolved the issue in Caltrans’ favor after the
parties submitted supplemental briefing and evidence. As
discussed above, we conclude substantial evidence supports the
finding.
DISPOSITION
The judgment is affirmed. Caltrans shall recover its costs
of appeal.
CODY, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Jed Beebe, Judge
Superior Court County of Santa Barbara
______________________________
Patricia A. Law, for Plaintiffs and Appellants.
Erin E. Holbrook, Chief Counsel, G. Michael Harrington,
Deputy Chief Counsel, Lucille Y. Baca, Assistant Chief Counsel,
and Yuping Lin, for Defendant and Respondent.
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Filed 11/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KIERRA STUFKOSKY et al. 2d Civ. No. B317192
(Super. Ct. No. 18CV04079)
Plaintiffs and Appellants, (Santa Barbara County)
v. ORDER MODIFYING AND
CERTIFYING OPINION
CALIFORNIA DEPARTMENT FOR PUBLICATION
OF TRANSPORTATION, [No Change in Judgment]
Defendant and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on October
30, 2023, was not certified for publication in the Official Reports.
For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.
It is further ordered that the opinion in the above-entitled
matter be modified as follows:
The first full paragraph on page 1, beginning “Jorgen
Stufkosky died in a multi-car accident” is deleted and the
following paragraph is inserted in its place:
Appellants Kierra and Merek Stufkosky sued respondent
California Department of Transportation (Caltrans) and others
for negligence after their father died in a car accident on State
Route 154 (SR-154). They allege this section of SR-154
constituted a dangerous condition, in part, because Caltrans
failed to adequately warn motorists of frequent deer crossings in
the area. (Gov. Code, § 835.1.6) The trial court found design
immunity shielded Caltrans from liability after the agency
produced evidence including design plans that specified the
quantity and placement of deer crossing signs. We affirm the
trial court’s entry of summary judgment in Caltrans’ favor.
There is no change in judgment.
GILBERT, P.J. YEGAN, J. CODY, J.
6 All unmarked statutory references are to the Government
Code.
2