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Court of Appeal, First District, Division 2, California.

John Roger CABELL, Plaintiff and Appellant, v. STATE of California, Defendant and Respondent.

Civ. 23052.

Decided: December 22, 1966

Haley, McInerney & Dillon, Oakland, for appellant. Thomas C. Lynch, Atty. Gen., Robert L. Bergman, Leonard M. Sperry, Jr., Deputy Attys. Gen., San Francisco, for respondent.

On this appeal from a summary judgment in favor of the State, plaintiff argues that his action for personal injuries was not barred by section 830.6 of the Government Code.

The basic facts are not in dispute. On December 7, 1961, plaintiff, a student at San Francisco State College, was a paying resident of Merced Hall, a dormitory building owned and operated by the State. Plaintiff was injured when he attempted to push open a swinging glass door leading to a lavatory on the fifth floor of the dormitory building and his hand slipped from the side wood paneling and went through the glass. Plaintiff duly exhausted his administrative remedies and on October 9, 1962, filed his complaint for personal injuries against the State alleging that the glass was not of the safety variety and that the dormitory building was negligently designed, constructed, operated and maintained.

Plaintiff's affidavits in opposition to the motion for summary judgment indicated that in December 1960 the swinging glass door to the lavatory on the sixth floor of Merced Hall was broken in a similar accident causing bad facial injuries and it was replaced by reinforced glass; that in November 1961 the frosted glass in the fifth floor lavatory door here involved had been broken and replaced with the same kind of glass; and that after plaintiff's injury, the broken glass was replaced with a wooden panel window.

The State's motion for summary judgment was granted on the basis of the affirmative defense provided by section 830.6 of the Government Code, a new provision of the 1963 Public Liability Act, which provides for immunity from liability ‘for an injury caused by the plan or design of a construction of, or an improvement to, public property’. The parties are agreed that, whatever the liability of the State may be, the retroactive provision of the 1963 Public Liability Act brings this case squarely within the act's purview (Stats.1963, ch. 1681; Gov.Code, § 810 et seq.; Loop v. State of California, 240 A.C.A. 657, 49 Cal.Rptr. 909; Heieck and Moran v. City of Modesto, 64 A.C. 238, 49 Cal.Rptr. 377, 411 P.2d 105.1

Section 830.6 of the Government Code provides: ‘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.’

We first consider whether the State can be held on the basis of faulty plan or design. Generally, on an appeal from a summary judgment, we look to the affidavits to see if there are triable issues of fact and in doing so strictly construe the movant's affidavits while giving a liberal construction to those of the responding party (McGranahan v. Rio Vista etc. School Dist., 224 Cal.App.2d 624, 627, 36 Cal.Rptr. 798). However, here, under the very language of section 830.6, the test is whether there is any substantial evidence to justify the trial court's determination that a reasonable legislative or other body or employee could have approved the plan or design or the standards for the dormitory lavatory doors.

The State's motion was supported by two declarations. Tom Meret, a Deputy State Architect, stated that the plans and specifications for Merced Hall, prepared by the Division of Architecture and subsequently approved by the State Public Works Board and the State Department of Public Works, called for the installation of 1/8 inch thick figured flat glass with one surface smooth and the other patterned in the lavatory doors; that at this time the use of this type of door and glass for lavatory entrances in dormitories was widespread; that the glass specified and used was twice as strong as glass with wire imbedded in it; and that the metal plate and wooden frame of the door were wide enough to accommodate large hands. William W. Charleston, the Chief of Plant Operations at San Francisco State College, charged with the maintenance of all campus buildings, stated that the glass through which plaintiff put his hand was not the glass originally installed in the door but had been installed under his supervision prior to December 7, 1961, and conformed to the original plans and specifications.

In view of these declarations, there was obviously sufficient substantial evidence of reasonableness on the part of the public entity in approving the plans and specifications for the lavatory doors. However, this does not dispose of the appeal. While section 830.6 of the Government Code may bar a cause of action based on faulty plan or design, it should not bar a cause based on the negligent maintenance of the door in its original condition after the State had notice of its dangerous characteristics.

Section 835 of the Government Code sets forth the fundamental rules of liability of public entities for dangerous conditions on their properties, and specifies the following requirements: (1) proximate cause, (2) reasonably foreseeable risk of the kind of injury that occurred, and (3) that either: (a) there was negligence of a public employee acting within the scope of employment creating the condition, or (b) the public entity had actual or constructive notice for a time sufficient to have permitted measures to rectify the dangerous condition. A ‘dangerous condition’ is defined by subdivision (a) of section 830 as follows: “Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.'2

The State argues that plaintiff is precluded by section 830.6 from alleging a cause of action pursuant to section 835 because the plan or design, having been justifiably found reasonable when adopted, forever remains so, even though it is shown to be wholly unreasonable, defective and dangerous under present circumstances or conditions.3 The legislative purpose resulting in the passage of section 830.6 lends no support to such a contention.

Before discussing the policy basis for section 830.6, we wish to emphasize a compelling procedural reason for the strict and narrow interpretation of that section. As noted above, the substantial evidence requirement of section 830.6 represents a radical departure from the rule generally applied by courts in determining whether a a summary judgment should be granted. Since no public buildings are erected without the scrutiny and adoption of plans by one or more public bodies, it is relatively easy for defendant to establish some substantial evidence of reasonable acceptance. On the other hand, plaintiff's burden is made well nigh impossible, for any amount of contradictory evidence he can introduce does nothing more than create a conflict.

The defense provided by 830.6 is a new one modeled after the immunity granted by judicial decision to public entities in New York (Weiss v. Fote (1960) 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63).4 The statute reflects a policy determination simi lar to the one supporting the discretionary immunity of public employees. The rationale of the section, as explained by the California Law Revision Commission, is that there should be immunity from liability for the plan or design of public construction and improvements where it has been approved by a governmental agency exercising discretionary authority, unless there is no reasonable basis for such approval. While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to permit reexamination in tort litigation on decisions where reasonable men may differ as to how the discretion should have been exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials charged with the responsibility (Van Alstyne, Government Tort Liability, p. 217)

It does not follow that a public entity should be exempted from liability when it continues to maintain a condition admittedly in accord with the original plan or design but which in its subsequent use is clearly shown to be dangerous, as was the case here. Plaintiff's complaint alleges that the door was negligently maintained and his affidavits disclosed two previous incidents similar to that here in question, one of which resulted in facial injuries. Plaintiff's allegations ask for more than a mere redetermination of a discretionary planning decision made by authorized public officials. Plaintiff also asks for an initial determination of whether defendant knowingly and negligently maintained a condition on the premises which, in use, had repeatedly demonstrated itself as hazardous to the students. Section 830.6 offers no defense to a case of negligent maintenance in the face of such an established danger and he should be permitted to go to the jury on the question of whether the prior accidents afforded notice and whether the other requirements of section 835 et seq. can be met. Our conclusion here is in accord with the legislative intent of the 1963 statute to abrogate the prior rules concerning governmental immunity (Flournoy v. State of California, 230 Cal.App.2d 520, 525–526, 41 Cal.Rptr. 190). The State may, of course, still avail itself of the defense provided by section 835.4.5

The judgment appealed from is reversed.


1.  Plaintiff's accident occurred on December 7, 1961, after the decision in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, which became final on February 27, 1961, and which abrogated the doctrine of sovereign immunity. The cause of action here was preserved by the moratorium statute of 1961 (ch. 1404, Stats.1961) which reinstated the doctrine of governmental immunity but extended the statute of limitations for claims that arose during the moratorium period, i. e., between February 27, 1961, and the 91st day after the final adjournment of the 1963 legislative session (Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488 at 492–495, 20 Cal.Rptr. 621, 370 P.2d 325; Thelander v. Superior Court. 58 Cal.2d 811, 814, 26 Cal.Rptr. 643, 376 P.2d 571).

2.  We note that section 835 is based upon the Public Liability Act of 1923 (formerly Gov.Code, § 53051) but extends liability previously limited to cities, counties and school districts to the State and other public entities. As the Law Revision Commission points out (4 Cal.Law Revision Com.Rep. (1963) p. 854), the liability does not necessarily exist even if the evidentiary requirements of section 835 are met. Under sections 830.6 and 835.4, certain defenses are allowed.

3.  This argument is based on a statement made by the Law Revision Commission's expert consultant (Van Alstyne, Cal. Government Tort Liability, p. 556). Whatever the merits of his comments, we note that Heieck and Moran v. City of Modesto, supra, and other authorities cited above, demonstate that the courts have not adopted the narrow application of the retroactivity provision of the 1963 statutes he advocated (op. cit., p. 674).

4.  In the Weiss case, plaintiff alleged that he was injured as the result of an allegedly negligent decision by Buffalo city traffic officials to establish a four-second interval between the red and green signals at a street intersection. Plaintiff's evidence tended to prove the interval was too short in view of the physical circumstances to permit clearing the intersection before opposite cars began to move. On appeal, in reversing a jury verdict for the plaintiff, the appellate court pointed to uncontradicted evidence that the interval in question had been carefully studied and deliberately selected in the belief it was reasonably safe, and that a jury should not redetermine a matter passed on by a duly authorized public body (200 N.Y.S.2d at p. 415, 167 N.E.2d at p. 67).

5.  ‘(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.’

TAYLOR, Justice.

SHOEMAKER, P. J., and AGEE, J., concur.