Substandard Designs and Better Technology-new Developments in Design Immunity

• Citation: Vol. 37 No. 1
• Publication year: 2014
• Author: By Kimon Manolius, Christine Hiler and Julie Veit*

Substandard Designs and Better Technology-New Developments in Design Immunity

MCLE SELF-STUDY ARTICLE

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By Kimon Manolius, Christine Hiler and Julie Veit*

I. INTRODUCTION

Design immunity is a powerful tool for public agencies. If established, it bars liability where a reasonable design feature approved in advance of construction causes an injury.¹

Premised on the separation of powers doctrine, design immunity prevents the judicial branch from interfering with or otherwise second-guessing the discretionary design approval of elected and appointed officials.² California Government Code section 830.6, and the cases interpreting it, provide public agencies with the guidance necessary to establish design immunity and to protect themselves from dangerous condition of public property lawsuits. As an affirmative defense, design immunity is particularly appropriate for summary judgment.³

This article provides an update on two important developments to this otherwise relatively static doctrine. The first development is the California Supreme Court's recent grant of review in Hampton v. County of San Diego and Curtis v. County of Los Angeles, cases questioning whether a public agency must prove that an authorized employee who approved a design knew it was substandard.⁴ The court's decision will impact the design immunity doctrine significantly. No knowledge requirement suggests that public agencies might ignore deviations from applicable standards when approving a design. Imposing a knowledge requirement, on the other hand, could weaken design immunity because proffered evidence of an alleged substandard design could defeat summary judgment.⁵

The second development involves a decision that strengthens design immunity's protections.⁶ When changed physical conditions make a design dangerous, the immunity is lost.⁷ In Dammann v. Golden Gate Bridge, Highway and Transportation District, the First District Court of Appeal held that evidence of changed physical conditions must pertain to conditions at the property in question; technological advancements implemented at other facilities are not sufficient.⁸ Limiting the type of evidence that constitutes changed physical conditions limits the ways in which an agency can lose its design immunity.

What do these developments mean for public agencies? For public agencies seeking to obtain design immunity, design officials should document their design choices in as much detail as practicable, especially when they consider and reject design options, and particularly when designs deviate from existing standards. For those seeking to retain design immunity, staff should track whether accidents occur or claims arise that would put the agency on notice that the physical conditions at the property have changed rendering the original design dangerous.

II. DOES DESIGN IMMUNITY REQUIRE KNOWING AND INFORMED APPROVAL OF DESIGNS?

To demonstrate an entitlement to design immunity, public entities must demonstrate that: (1) the design caused the accident; (2) the design was "approved in advance of the construction [] by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval" or was prepared in conformity with standards previously so approved; and, (3) substantial evidence supports the reasonableness of the design.⁹ The two cases currently pending before the California Supreme Court, Hampton and Curtis, focus on the second element.¹⁰

Under section 830.6, there are three different ways that a public agency can satisfy the second element to show that the design was approved in advance of construction : (1) the legislative body can approve the design; (2) a body or employee given discretionary authority can approve the design; or (3) the design must conform to approved standards.¹¹ The narrow issue in Hampton and Curtis is whether the exercise of discretionary authority delegated to an employee to approve a design, under the second prong, must be knowing and informed.¹²

Specifically, the Hampton plaintiffs raise the following questions: (1) must an entity demonstrate that an official consciously decided to deviate from applicable standards before approving a substandard design; and (2) assuming knowledge of a substandard design, must the entity show the official had the authority to disregard those standards before approving the substandard design elements?¹³

In Hampton, plaintiffs sued the County of San Diego for failing to provide sufficient sight distance at the intersection where they were injured in a car crash.¹⁴ Because there was no evidence that the approving engineer knew of the substandard element, plaintiffs claimed that the public entity did not show the engineer had authority to approve the plan.¹⁵ The trial court rejected this argument, holding that evidence of proper delegation was sufficient to show that the engineer had the approval authority as a matter of law.¹⁶ Proof of knowledge was not required.

Plaintiffs argued on appeal that where the design is substandard, the entity must show that the approving engineer: (1) knew it was substandard, (2) elected to disregard the standard, and (3) had the authority to do so.¹⁷ They cited Levin v. State of California and Hernandez v. Department of Transportation, the only two cases addressing this issue, for support.¹⁸ The Fourth District Court of Appeal disagreed, holding that evidence that an engineer with approval authority as well as another engineer approved the plans was sufficient to meet the discretionary approval element as a matter of law.¹⁹ Refusing to infer a knowledge requirement into the language of section 830.6, the court explained:

[w]e respectfully disagree with Levin and Hernandez to the extent they suggest that a public entity attempting to establish the discretionary approval element of a design immunity defense must establish an exercise of informed discretion and that evidence that the public entity failed to adhere to standards pertaining to an element of a design plan constitutes evidence of a lack of discretionary approval of the design. The text of section 830.6, from which the discretionary approval element is derived, does not contain any requirement of informed discretion.²⁰

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Indeed, the court found section 830.6 only requires evidence that the entity appropriately delegated discretionary approval or evidence that the plan conformed with previously approved standards.²¹ The Fourth District concluded that design immunity's second element was satisfied with proof that the official who approved the plans had proper authority to do so.²² Nothing more was required.

Similarly in Curtis, a motorist brought suit against the County of Los Angeles for injuries sustained on a roadway that lacked a median barrier.²³ Plaintiffs claimed that the county did not establish the second element of design immunity because there was no evidence that an authorized official properly considered the standards governing installation of median barriers prior to approving the design with no such barrier.²⁴ Like the Fourth District in Hampton, the Second District affirmed the trial court's grant of design immunity, finding that evidence that the county delegated authority to the engineer who approved the plans was sufficient.²⁵

Thus, the key issue in Hampton and Curtis is whether a public agency must establish that an authorized official knew about deviations from applicable design standards before approving the design in question.²⁶ Knowledge of deviations assumes the official has knowledge of applicable standards. Plaintiffs argue that public agencies must show that the authorized official had knowledge of an alleged deviation and that he or she consciously disregarded it before approval.²⁷ In response, the public agencies-and the Fourth and Second District Courts of Appeal-maintain that an authorized official's signature on a set of plans is sufficient evidence that all aspects of the design were considered, including any substandard elements.²⁸

The California Supreme Court's resolution of this issue will have significant ramifications for public agencies attempting to meet design immunity's second element. On one side, while there is support for the Fourth and Second Districts' general holdings that design approval by an authorized official is sufficient evidence to satisfy the second element, none of the cases cited by either court involved approval of a substandard design.²⁹ For example, in Alvis v. County of Ventura, upon which the Fourth District relied, the court held that the Board of Supervisors approval of a design did not need to demonstrate that it knew of all comments received during the design process.³⁰ The Board could rely on its staff. Alvis is distinguishable, however, given that approval was not delegated to an employee and plaintiff did not allege that the design deviated from existing statutes or guidelines.³¹

Nonetheless, design immunity is based upon deferential policy goals, which suggest that courts should assume an approving official was diligent in considering all relevant aspects of a design.³² To hold otherwise would allow a jury or court to simply reweigh the considerations of the public official who approved the design.³³

Specifically, if courts were to require public agencies to present evidence of knowledge of substandard designs, plaintiffs could simply introduce conflicting evidence to defeat summary judgment. Regardless of whether a design is in compliance with applicable standards, plaintiffs could accomplish this by challenging whether : (1) the proper standards were applied; (2) there is a deviation from a particular standard; and (3) the authorized official had knowledge of the deviation.

This exact scenario occurred in Hernandez...