The Limits of Design Immunity: Liability of Public Entities for Failure to Warn of Dangerous Conditions on Public Property

• Publication year: 2024
• Citation: Vol. 42 No. 1
• Author: Written by Xenia Tashlitski

THE LIMITS OF DESIGN IMMUNITY: LIABILITY OF PUBLIC ENTITIES FOR FAILURE TO WARN OF DANGEROUS CONDITIONS ON PUBLIC PROPERTY

Written by Xenia Tashlitski^*

The doctrine of design immunity shields public entities from liability for injuries resulting from dangerous conditions on public property.⁰¹ However, on April 27, 2023, the decision of the California Supreme Court in Tansavatdi v. City of Rancho Palos Verdes confirmed the existence of an important caveat: even if a public entity is not liable for the dangerous condition due to design immunity, it can still be liable for failure to warn of the danger.⁰² The decision expressly disapproves of Weinstein v. Department of Transportation, a 2006 case in which the court of appeal held that design immunity bars a recovery for failure to warn.⁰³ Tansavatdi provides an avenue for plaintiffs who cannot overcome the doctrine of design immunity to nevertheless recover from public entities and highlights the importance of reasonable signage in minimizing liability for dangerous conditions on public property.

I. TANSAVATDI ESTABLISHES THAT A PUBLIC ENTITY THAT IS NOT LIABLE FOR A DANGEROUS CONDITION DUE TO DESIGN IMMUNITY CAN STILL BE LIABLE FOR FAILURE TO WARN OF THE DANGER

Government Claims Act Section 830.6 grants design immunity to public entities that demonstrate three elements: (1) a causal relationship between the plan or design and the accident; (2) the discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.⁰⁴ In essence, the rationale for design immunity is to maintain the separation of powers by keeping a judge or jury from "second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design."⁰⁵ The third element—the existence of substantial evidence supporting the reasonableness of

[Page 26]

the adoption of the plan or design—"is a matter for the courts, not the jury, to decide."⁰⁶

In Tansavatdi, the mother of a bicyclist who was killed when his bicycle collided with a turning truck on a city street sued the city of Rancho Palos Verdes for a dangerous condition of public property under Government Code Section 835.⁰⁷ She alleged (a) that the city created a dangerous condition by interrupting the bike lane in the area of the accident to make space for street parking near a park, which effectively deposited bicyclists into the right turn lane, (b) that the condition was not reasonably apparent to motorists driving through the intersection, and (c) that the city failed to warn of the condition by posting signage.⁰⁸ The trial court entered summary judgment for the city based on design immunity under Section 830.6 based on its findings that the city made a discretionary decision to prioritize the street parking over the bike lane, and the plan and design were reasonable.⁰⁹

The appellate court held that "design immunity does not, as a matter of law, preclude liability under a theory of failure to warn of a dangerous condition."¹⁰ The supreme court sided with the appellate court, holding that "design immunity does not categorically preclude failure to warn claims that involve a discretionarily approved element of a roadway."¹¹ The supreme court reasoned that Government Code Section 835 expressly authorizes two different forms of liability for dangerous conditions: (i) an act or omission by a government entity that created a dangerous condition;¹² and (ii) failure to "protect against" a dangerous condition of which the entity had notice.¹³ Government Code Section 830(b) defines the term "protect against" to include "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or"—importantly for Tansavatdi—"warning of a dangerous condition."¹⁴

In the wake of Tansavatdi, a public entity that is entitled to design immunity for a dangerous condition can nonetheless be liable for failure to warn of the danger if the plaintiff can show three elements:

1. The public entity had actual or constructive notice that the approved design resulted in a dangerous condition.¹⁵
2. The dangerous condition qualified as a concealed trap.¹⁶
3. The absence of a warning was a substantial factor in bringing about the injury.¹⁷

In the few months since Tansavatdi was decided, each of these elements has been litigated in the context of a failure to warn claim. The first element—that the public entity had notice of the dangerous condition—is not required for claims that a public entity created a dangerous condition; it is unique to claims that the public entity failed to warn of the danger.¹⁸ Government Code Section 835.2 defines notice under Section 835 to include actual or constructive notice.¹⁹ A plaintiff can show constructive notice by proving "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."²⁰ On the question of "due care," the statute appears to seek to balance the interests of preventing public entities from hiding their heads in the sand with avoiding the imposition of excessive inspection expenses by defining admissible evidence as including, but not limited 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.²¹

The second element—that a dangerous condition is a concealed trap—refers to the fact that a public entity has no legal duty to post a sign for an obvious condition. Therefore, a plaintiff must establish the concealed trap exception to overcome signage immunity, which eliminates liability for failing to provide "traffic or warning signals," except when "necessary to warn of a dangerous condition which would not be reasonably apparent to, and would not have been anticipated by, a person using the highway with due care."²²

The third element—that the dangerous condition was a substantial factor in the injury—refers to the fact that a public entity is not liable for an injury it did not cause. Thus, a plaintiff seeking to impose liability for a dangerous condition despite design immunity must show

[Page 27]

that, aside from the existence of the dangerous condition itself, the absence of a warning was an "independent, separate, concurring cause of the accident"²³ —in other words, that there is "some substantial link or nexus between omission and injury."²⁴

II. TANSAVATDI DISAPPROVES OF THE WEINSTEIN HOLDING THAT A PUBLIC ENTITY IS NOT LIABLE FOR FAILURE TO WARN IF A DANGEROUS CONDITION IS PART OF AN APPROVED DESIGN

In reaching its holding, the Tansavatdi court approved of Cameron v. State of California²⁵ and disapproved of Weinstein.²⁶ In Cameron, the plaintiffs were injured when their host's vehicle failed to negotiate a steep curve in the highway and crashed into a hillside.²⁷ The California supreme court reversed a judgment of nonsuit and held that:

"[I]f there had been proper warning of a dangerous curve and posting of the safe speed, the dangerous condition of the highway would have been effectually neutralized. The state's failure to so warn was an independent, separate concurring cause of the accident.... [W]here the state is immune from liability for injuries caused by a dangerous condition of its property because the dangerous condition was created as a result of a plan or design which conferred immunity under section 830.6, the state may nevertheless be liable for failure to warn of this dangerous condition where the failure to warn is negligent and is an independent, separate, concurring cause of the accident."²⁸

The Tansavatdi court explained that "[t]he effect of Cameron is that while section 830.6 shields public entities from liability for injuries resulting from the design of the physical features of a roadway, they nonetheless retain a duty to warn of known dangers that the roadway presents to the public."²⁹

The Tansavatdi court disapproved of Weinstein, which interpreted Cameron narrowly.³⁰ In Weinstein, the plaintiffs were injured when a vehicle crossed a median in a location where a lane of traffic was discontinued without warning.³¹ The appellate court affirmed summary judgment for the Department of Transportation, reasoning that "[i]t would be illogical to hold that a public entity immune from liability because the design was deemed reasonably adoptable, could then be held liable for failing to warn that the design was dangerous."³² The Weinstein court distinguished Cameron, explaining that "Cameron involved the failure to warn of a hidden dangerous condition that was not part of the approved design of the highway. Here, plaintiffs claim that defendant was obligated to warn of conditions that were part of the approved design."³³

The Tansavatdi court held that Weinstein's reading of Cameron was "mistaken."³⁴ The Tansavatdi court reasoned that there was no language in Cameron suggesting that the holding was only intended to apply to a failure to warn claim that challenges a dangerous condition "that was not part of the approved design,"³⁵ and that such a limitation conflicted with Cameron's conclusion that even if the defendant could produce evidence showing that the dangerous...