Public Entity will Not Retain Statutory Immunity When Changed Physical Conditions of Public Property Cause Personal Injury Damages

The Law Regarding “Changed Physical Conditions”

In 1972, in Baldwin, supra, 6 Cal.3d 424, our Supreme Court carved out an exception to its previous holding that “design immunity remained intact even though changed circumstances had clearly revealed the defects of the plan.” (Id. at pp. 426-427.) The court held that “where a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.” (Id. at p. 438, italics added.)

In 1979, the Legislature amended section 830.6, including adding the following: “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 … public entity … or with a plan or design in conformity with a standard previously approved by such legislative body … or employee.” (§ 830.6; see Bane v. State of California (1989) 208 Cal.App.3d 860, 870 [256 Cal.Rptr. 468(Bane).)

Courts subsequently considered whether or not this 1979 amendment, by its reference to public property that “may no longer be in conformity with a plan or design or a standard which reasonably could be approved,” eliminated the Baldwin requirement that a party establish “changed physical conditions” in order to defeat a defense of design immunity. In Bane, supra, 208 Cal.App.3d 860, the Fifth Appellate District concluded that it did. The Bane court stated, “[a]lthough the … amendment … could have been drafted with more clarity, a reasonable, commonsense interpretation … is that once the public entity has actual or constructive notice that his property may no longer be in conformity with a reasonable design or plan, the [design] immunity nonetheless will continue for a reasonable period of time to allow the entity to obtain funds and to carry out remedial work to bring the property into conformity with the reasonable design or plan.” (Id. at p. 870.) The court further concluded that “the amendment nullified the Baldwin language requiring a change in physical conditions before an approved design may be deemed unreasonable…. We do not read Baldwin as limiting the termination of immunity to only those cases which involve a change of the physical conditions of the property. Furthermore, in drafting the 1979 amendment to section 830.6, the Legislature is presumed to have been aware of the Baldwin holding, yet it did not limit the loss of immunity to changed physical conditions which result in a dangerous condition. Rather, the amendment language is unlimited; thus, the amendment should be construed to mean that immunity is lost if the subsequent history shows the design was unreasonable for any reason once the public entity has notice of the dangerous condition and has a sufficient time period to remedy it. No public policy is served by continuing to immunize the public entity for a plan after it becomes clear that its design is no longer reasonable and an opportunity to make a change is afforded.” (Id. at p. 871.)

Bane, however, stood alone among appellate courts interpreting the 1979 amendment to section 830.6. In Compton v. City of Santee (1993) 12 Cal.App.4th 591 [15 Cal.Rptr.2d 660] (Compton), the Fourth Appellate District disagreed with Bane‘s interpretation. The trial court granted summary judgment to the City of Santee against a plaintiff who alleged that an intersection located near a bridge constituted a dangerous condition. (Id. at pp. 594-595.) The appellate court found design immunity had vested (id. at pp. 596-597), and that there was no triable issue of fact regarding Baldwin‘s changed physical conditions requirement, since the plaintiff “made no factual showing of any change in conditions between the time the plan was approved and the time of the accident.” (Id. at pp. 598-599.)

The Compton court rejected the holding in Bane that a change in circumstances need not be shown, finding it “to be fundamentally inconsistent with the objective of section 830.6, which provides for immunity if the plan could have been deemed reasonable when approved. The Legislature, by its 1979 amendments [citation], directed that immunity, once vested, is forfeited only if the public entity has received notice that the plan `may no longer be in conforming with a plan … which reasonably could be approved….’ (§ 830.6, italics added.)” (Compton, supra, 12 Cal.App.4th at pp. 598-599, fn. omitted.) The Compton court agreed with a legal commentator that the “proper interpretation of the 1979 amendment” was that “`[i]nterpreted literally … [it] does not define the circumstances under which the design immunity is lost; rather, it specifies the circumstances under which it may be retained.” (Id. at p. 599, fn. 5.) The court concluded that Baldwin remained the governing law. (Ibid.)

In Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931 [67 Cal.Rptr.2d 454] (Grenier), the Second Appellate District agreed with Compton. After noting that the language of the 1979 amendment was ambiguous, the Grenier court concluded that “[n]othing in the legislative history of the 1979 amendment reflects an intent to expand Baldwin and provide for the loss of design immunity in a situation other than changed physical conditions. Instead a review of the legislative history indicates the amendment was intended to respond to Baldwin by providing a reasonable extension of the immunity when, under the holding of Baldwin, that immunity otherwise would be lost.” (Grenier, at p. 944.) As support for this view, the Grenier court quoted a 1979 letter by Assemblyman John Knox to the Governor regarding the legislation (Assem. Bill No. 893 (1979-1980 Reg. Sess.)), which stated, “`Although the staff of the Joint Committee on Tort Liability agreed with Baldwin, it felt there should be some recognition of the practical limitations which have been imposed upon governments by Article XIII A of the California Constitution (Proposition 13) and ever increasing liability insurance costs.'” (Ibid.)
In Dole Citrus v. State of California (1997) 60 Cal.App.4th 486 [70 Cal.Rptr.2d 348] (Dole Citrus), the Fourth Appellate District reviewed whether an overcrossing that had been built according to then existing highway standards was nonetheless later maintained in a dangerous condition in light of a change in certain design standards. In the course of its evaluation, the Dole Citrus court, relying on Baldwin and Grenier, summarized the state of the law as follows: “[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, at p. 494, italics added; see Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 808 [4 Cal.Rptr.3d 205] [Third Appellate District], quoting Dole Citrus.)

In 1998, in Sutton, supra, 68 Cal.App.4th 1149, Division Four of this district considered circumstances and arguments very similar to those made in the present case, and rejected them, in part because it agreed with Compton and Grenier that a party must show changed physical conditions in order to defeat a design immunity defense. Sutton is relevant to understand both the present state of the law regarding changed physical conditions and the history of the District’s decisions regarding MMB’s, and therefore merits considerable discussion.

Sutton, like Dammann, was involved in a cross-over accident on the Bridge. His truck, going northbound, was sideswiped, causing it to cross the median and enter the southbound lane, where it hit a pickup truck head on, killing the pickup truck’s driver and resulting in serious injuries to Sutton. (Sutton, supra, 68 Cal.App.4th at pp. 1153-1154.) Sutton sued the District, alleging that the lack of a median barrier on the Bridge constituted a dangerous condition of public property. (Id. at p. 1154.) The District moved for summary judgment based on its design immunity and the trial court granted the motion. (Id. at p. 1154.)

The Sutton court reviewed the history, dating back to 1979, of the District’s decisions not to install a median barrier as part of the Bridge Deck Replacement Project (Project) (the same Project involved in the present case), as well as the District’s evaluation of four MMB systems. The District retained a study of four median barrier concepts by the engineering firm of Sverdrup & Parcel, which was independently reviewed by NASA/Ames Research Center in consultation with Lawrence Livermore Laboratories. (Sutton, supra, 68 Cal.App.4th at p. 1160.) Acting on the NASA/Ames recommendation, the District subsequently retained the Traffic Institute of Northwestern University to evaluate the effects of barrier systems on traffic safety and capacity on the Bridge. (Ibid.) The Traffic Institute concluded that an MMB system was inappropriate for the Bridge. (Ibid.) It opined: “`[T]he proposed [MMB] system is a useful device and [we] can foresee numerous important applications which would improve traffic safety and traffic operations. However, due to the unique characteristics and conditions represented by the [Bridge] and its approaches, and especially because of the restricted sight distance that would result from the installation of such a barrier on the curved approaches, it is our opinion that the proposed [MMB] would be inappropriate in this application. This conclusion is based on a combination of several factors. The proposed [MMB] would be effective in eliminating nearly all cross-over accidents and in reducing the frequency of fatal accidents. However, the frequency of fatal accidents is already quite small and some fatal accidents would be expected to occur even with a barrier in place. The benefits of such reductions in fatal accidents must be balanced against the expected increases in frequency of injury and property-damage accidents which would be expected if a [MMB] were implemented. We do not believe that the expected increases in injury and property-damage accidents can be justified by the expected reduction in fatal accidents which would occur if the proposed [MMB] were implemented.'” (Sutton, supra, 68 Cal.App.4th at pp. 1160-1161.)

The District, relying on the Traffic Institute report, “determined that [an MMB] was inappropriate for the [B]ridge.” (Sutton, supra, 68 Cal.App.4th at p. 1161.) The Sutton court concluded that “[g]iven the extensive analysis of median barriers conducted by the District and its reliance on the expert opinions of several traffic and transportation engineers, substantial evidence supports the reasonableness of the District’s decision not to install a median barrier as part of the Project.” (Ibid.) The Project was completed in 1985. (Ibid.)

Sutton argued that “technological advances in the development of [an MMB] constitute evidence of changed physical conditions defeating design immunity.” (Sutton, supra, 68 Cal.App.4th at p. 1162.) The Sutton court rejected this argument without determining whether such advances constituted changed physical conditions. The court stated that, “[e]ven if we were to conclude that a technological advancement constitutes a change in physical conditions, here, the record is replete with documentation that there was no change prior to the accident.” (Ibid.)

Sutton also contended that “changed physical conditions are unnecessary to the loss of design immunity and that immunity ends when it is apparent that the design has created a dangerous condition,” based on Bane. (Sutton, supra, 68 Cal.App.4th at p. 1163.) The Sutton court concluded that “Bane … incorrectly interprets the 1979 amendment” to section 830.6. (Sutton, at p. 1164.) The court agreed with Grenier that nothing in the amendment’s legislative history reflected an intent to expand Baldwin “`and provide for the loss of design immunity in a situation other than changed physical conditions.'” (Sutton, at pp. 1163-1164.) The court concluded “that changed physical conditions are necessary to the loss of design immunity,” and found no triable issue of fact on design immunity because Sutton had not shown a change in physical conditions. (Id. at p. 1164.)
Sutton further claimed that the District nonetheless did not have design immunity under the “changed physical conditions” requirement established in Baldwin because the high cross-over accident and fatality rate after completion of the Project was proof that the Project produced a dangerous condition and that any design immunity had expired. (Sutton, supra, 68 Cal.App.4th at p. 1162.) The Sutton court rejected this argument because the record showed a decline in the rates of cross-over accidents following completion of the project. (Ibid.)

In Alvarez v. State of California (1999) 79 Cal.App.4th 720 [95 Cal.Rptr.2d 719] (Alvarez), the Fifth Appellate District — the same district that issued Bane — reconsidered the holding in Bane that section 830.6 nullified the requirement that a party establish “changed physical conditions,” based on Compton, Grenier, and Sutton. The Alvarez court stated that, “[o]n reconsideration of the [1979] amendment [to section 830.6] in light of its legislative history, we conclude that Bane‘s holding is too broad.” (Alvarez, at p. 736.) After reviewing some of the analysis and legislative history recited in the other appellate cases, the Alvarez court concluded “that design immunity may be lost by evidence that the design under changed physical conditions has produced a dangerous condition.” (Id. at p. 737, italics added.)

Finally, in 2001, our Supreme Court summarized the law regarding design immunity in Cornette and made clear that “changed physical conditions” are required to defeat a defense of design immunity. The Cornette court stated that “[a] public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. (Gov. Code, § 835, subd. (b); Baldwin[, supra,] 6 Cal.3d [at p.] 427 ….)

“However, a public entity may avoid such liability by raising the affirmative defense of design immunity. (§ 830.6.) A public entity claiming design immunity 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.]
“Design immunity does not necessarily continue in perpetuity. (Baldwin, supra, 6 Cal.3d at p. 434.) To demonstrate loss of design immunity a plaintiff must also 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. (§ 830.6; Baldwin, at p. 438.)” (Cornette, supra, 26 Cal.4th at p. 66, fn. omitted.)

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