Dangerous Conditions of Public Property & Design Immunity under Government Code § 830.6
Castro v. City of Thousand Oaks (2015) 2d Civil No. B258649, a recent Court of Appeal Case in the 2nd District, looked at the law surrounding dangerous conditions on public property and the design immunity granted under Government Code 830.6. Before getting to the case, a couple of underlying principles should be established. First, the government is responsible for maintaining the public roadways to be reasonably safe for travel. If public property is in a dangerous condition, suit may be brought against the government for allowing a dangerous condition of public property. In the typical case, this can deal with potholes, or objects in the road. But it can also apply to negligent design of a roadway. If the public property was designed in such a way that is inherently dangerous, and unsafe for the public. There are several statutes that specifically deal with this issue. The statutes that impose liability on the government for a dangerous condition of public property are Government Code 835[i], 835.2[ii] and 835.4[iii]. The statute that absolves the government of negligent design, or “design immunity,” is Government Code 830.6[iv] The case of Castro v, City of Thousand Oaks dealt with these issues.
In Castro, a woman with four children were struck while crossing a crosswalk in the city of Thousand Oaks. Castro (the plaintiff), had pressed the button to start the pedestrian warning beacon before crossing the crosswalk. She saw a vehicle stop, felt it was safe to cross, and proceeded to do just that. She and the children were struck by another vehicle that did not see her or the children or the warning beacon. Castro and the children sustained injuries. Between 2010 and 2011, the city of Thousand Oaks had approved a “Street Rehabilitation Project,” and made improvements to that crosswalk. The Street Rehabilitation project contained several plans and suggestions for that intersection, and the City Council approved the plans. The plans did not include, and the City Council did not approve, the placement of a warning beacon at the crosswalk. After the completion of the project, a city engineer authorized another employee of the city to add the pedestrian warning beacon to the intersection.
Under Government Code 830.6, design immunity is an affirmative defense for plans that were approved in advance by the legislative body of the public entity, “or other body or employee exercising discretionary authority to give such approval.” The issue was the warning beacon was not approved by the city council, and therefore, the City could not assert design immunity. Thousand Oaks argued that the City Engineer qualified as a “employee exercising discretionary authority.” Thousand Oaks argued that their city code placed in the engineer the power to “place and maintain” traffic control devices. The Court disagreed, stating that was different than having the authority to approve a plan, at least as it relates to design immunity. From the plaintiff’s standpoint, the warning beacon was a part of the intersection, and if it was not placed there through the proper procedure as required by Government Code 830.6, then design immunity could not be asserted. The Court of Appeals agreed. They stated:
“The City Engineer’s authority to purchase and install traffic control devices does not establish design immunity, i.e., the discretionary authority to approve a warning beacon design before the equipment is installed… City’s reliance on its municipal code for design immunity, if credited, would erase years of California jurisprudence. Like the trial court, we appreciate that City was trying to add a safety feature to prevent accidents. Were we to credit City’s theory, every governmental entity would draft a similar code section and this would create design immunity by municipal code section. All that would be required would be a declaration by an engineer approving his or her own safety idea. To us, this seems a stretch which tears the legal fabric. There still must be an actual plan or design, i.e. something other than an oral “after the fact” statement that: “I had authority and I approved my own safety idea.”[v]
Dangerous Condition of Public Property:
At this point, many readers will probably be curious as to how this crosswalk created a dangerous condition of public property. The plaintiff’s theory of the case was that the City exposed the public to an increased risk of harm. The plaintiff’s complaint argued that the road and the crosswalk, in combination, created: ““an immediate hazard, a trap, and a deceptive and dangerous condition to pedestrians who could reasonably and foreseeably be anticipated to walk across this thoroughfare while using due care.”[vi] The word trap in the last sentence was the gist of the argument. It simply was not a safe crosswalk, and either more safety measures should have been added, or it simply should not be there. The fact that a third party (the other driver) was the one that physically made contact, did not absolve the city of liability. The court discussed:
“In Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, our Supreme Court held that a public entity may be liable for a dangerous condition of public property even when the immediate cause of a plaintiff’s injury is a third party’s negligent or illegal act (such as a motorist’s negligent driving), if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. (Id., at p. 152.) Public entity liability lies under section 835 when some feature of the property increased or intensified the danger to users from third party conduct. (Id., at p. 155.)”[vii]
Under Government Code 835(b), the government can be liable if there was actual or constructive notice of the dangerous condition. Here, the City had notice. The court stated:
“City had notice that the crosswalk posed a risk of harm to pedestrians… In 2008, the University of California Berkeley Institute of Transportation Studies Technlogy wrote a pedestrian safety assessment report for City. With respect to the Live Oak Street/Thousand Oaks Boulevard intersection, the report recommended that City (1) relocate the crosswalk to the northern side of the intersection, (2) construct bulbouts on the northern corners of the intersection, (3) add a median island with a pedestrian refuge, (4) provide flashing overhead beacons for motorists approaching from both directions, (5) consider installing a stutter flash crosswalk beacon rather than a standard overhead flashing beacon, and (6) provide advance yield limit lines. The only recommendation implemented by City was to paint advance yield limit lines.”[viii]
This case came before the court because the lower court dismissed the case, ruling that the City was not liable, and Castro would not get a right to a jury trial. Therefore, the Court of Appeal did not specifically rule on whether the City was liable in this case, only that it should be sent back to the lower court, and that question should be decided by a jury. Castro should get her day in court. But, based on all the facts the Court of Appeal unearthed, especially considering the UC Berkeley study, the case is not looking good for Thousand Oaks. This case is a good example of making sure all parties to an accident are held accountable. A cursory look at the facts of the case might not have led one to believe the City could have been liable, but after the appropriate investigation, which obviously the plaintiffs’ attorneys undertook, it is clear that a strong argument is present to hold the city liable for a dangerous condition of public property.
Michael D. Rehm provides representation throughout California.
[i] Government Code 835: Except as provided by statute, 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 either:
(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
[ii] Government Code 835.2: (a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.
[iii] Government Code 835.4: (a) A public entity is not liable under subdivision (a) of Section 835 for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury.
(b) A public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.
[iv] Government Code 830.6: 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. Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.
[v] Castro v. City of Thousand Oaks (2015) 2d Civil No. B258649
[vi] Castro v. City of Thousand Oaks (2015) 2d Civil No. B258649
[vii] Castro v. City of Thousand Oaks (2015) 2d Civil No. B258649
[viii] Castro v. City of Thousand Oaks (2015) 2d Civil No. B258649