WEDDLE v. STATE

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

Linda Gayle WEDDLE, etc., et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent.

Civ. 19735.

Decided: July 12, 1979

Hews & Munoz, Inc. and William J. Howard, Santa Ana, for plaintiffs and appellants. Richard G. Rypinski, Chief Counsel, San Diego, Joseph A. Montoya, Robert L. Meyer, S. Philip Teresi, Roland Coleman and Robert W. Vidor, Los Angeles, for defendant and respondent.

OPINION

This is an action against the State of California for wrongful death and for damages for emotional distress brought by the surviving wife and children of the decedent whose death allegedly resulted from the dangerous condition of a freeway offramp. Following a jury verdict for plaintiffs, the court granted the state's motion for judgment notwithstanding the verdict and for a new trial. Plaintiffs appeal from the judgment and order.

Subject to later amplification when we consider specific issues, the basic facts may be summarized as follows:

On May 17, 1975, sometime between 8:30 and 9 p. m., decedent, accompanied by his wife and three children, was westbound on Route 91 in Riverside in a 1962 Mercury automobile. The family had spent the day at Lake Perris. As they neared the Madison Street offramp, they heard a noise from the rear end. Decedent thought the axle might have broken so he decided to get off the freeway at the Madison offramp. As the vehicle started off the ramp, it began slowing down so decedent pulled over onto the emergency lane to the right of a white line and parked. He turned off the lights, got out of the car, removed the jack from the trunk, went to the left side of the car and jacked up the left rear wheel. Shortly after decedent's wife saw him stoop down by the left rear wheel, he was struck by a pickup truck driven by Mr. Arias. Decedent's automobile was knocked off the jack and his body was hurled out onto the roadway.

A California Highway Patrol Officer who arrived on the scene shortly after the accident checked defendant for life signs and found none. He noted that decedent's vehicle was to the right of the white line and was legally parked on the shoulder, that there was a dirt embankment with ice plants immediately to the right of where the car was parked, and that the vehicle was approximately 283 feet west of the entrance to the offramp. The officer found 15 feet of skid marks which at their most easterly point were approximately a foot from the white line and at the most westerly point approximately four inches from the white line. The officer determined that the skid marks were left by Mr. Arias' pickup truck and that the pickup did not cross over the white line separating the roadway from the shoulder. There was evidence, however, of paint transfer on the pickup which matched the parked vehicle and there was moderate damage to the right side of the pickup and the left side of the parked vehicle.

It was stipulated that decedent's blood alcohol level was .16 and that of Mr. Arias .14. Decedent's wife testified that decedent had two beers at a friend's home on the way to Lake Perris and while at the lake he had consumed six beers. She testified that decedent had no difficulty in maneuvering the vehicle and that he maintained a moderate speed and carried on a normal conversation with her before the accident.

The Madison offramp for westbound traffic on Route 91 was completed in May 1959. The state specifications then and as of the date of trial for a single lane offramp such as Madison required a standard travel lane 12 feet wide and a shoulder width of 8 feet. The Madison offramp plans called for a curb consisting of a 2-foot cement gutter, a 12-foot travel lane and an 8-foot black top shoulder. There was no shoulder striping on the ramp when it was constructed.

In October 1973, a 3-inch wide stripe was painted on the offramp pursuant to an assistant district traffic engineer's work order issued in December 1971 for the striping of all ramps in the district in accordance with a striping plan entitled “Figure 6-6, Typical Ramp Delineations” (hereafter Figure 6-6). Figure 6-6 called for double yellow striping along the left side and a 3-inch wide white stripe 2 feet off the right edge of the pavement. The double yellow lines shown on Figure 6-6 were not painted on the Madison offramp. In practical effect the striping on the Madison offramp resulted in a 14-foot travel lane and a 6-foot shoulder.

Just east of the Madison offramp on Route 91, there was a posted sign reading “Madison Street, Next Right” and mounted on the same post was a sign reading “Emergency Vehicle Parking Only.” It was proper to park on the offramp shoulder for emergency repairs such as changing a flat tire. The engineering testimony concerning the plans for the offramp, the striping, and the safety of the offramp will be reviewed later in this opinion.

Plaintiffs' expert was of the opinion that the ramp constituted a dangerous condition of public property because the 6-foot shoulder made emergency parking hazardous and that, if emergency parking were not to be permitted, a sign should have been posted stating “No Stopping or Parking At Anytime.” In the expert's opinion, if the shoulder width had been 8 feet instead of 6 feet, the accident would not have occurred.

Decedent's wife was 28 years old and the three children were 4, 5, and 7, respectively. Decedent was 26 years old at the time of his death and was the sole support for the family. An economist testified that based on decedent's life expectancy and his earning capacity, the present value of plaintiffs' lost support was $656,900. There was evidence that before the accident one of the children (Shawn Weddle) had occasional staring spells (medically known as absence seizure) but after witnessing the death of his father the seizures occurred with greater frequency and the child suffered a distinct personality change. The jury returned a verdict in favor of plaintiffs in the sum of $625,000 and in favor of plaintiff Shawn Weddle in the sum of $11,000. In a special verdict, the jury allocated fault as follows: Decedent 20 percent, the state 70 percent, and “other” 10 percent.

The state moved for a judgment notwithstanding the verdict and for a new trial. The motion for judgment notwithstanding the verdict was based on two grounds: The evidence established as a matter of law that the state was immune from liability by virtue of Government Code section 830.6 (design immunity) and (2) the evidence failed to establish the existence of a dangerous condition of public property. The motion for a new trial was made on grounds of excessive damages, insufficiency of the evidence to justify the verdict and errors in law.

The trial court granted both motions by a single signed order. The order recites that the motion for a new trial is granted for insufficiency of the evidence to justify the verdict and excessive damages. The order also states that the state should prevail on its defense of design immunity “both as a matter of fact and as a matter of law,” in that the 6-foot shoulder for emergency parking was a reasonable design and the state acted reasonably in adopting, approving and implementing the freeway offramp design. Judgment was entered in accordance with the order. Plaintiffs appeal from the judgment notwithstanding the verdict and the order granting the new trial.

Plaintiffs contend that under applicable standards for reviewing an order granting a motion for judgment notwithstanding the verdict, the judgment must be reversed. They also contend that the order granting the new trial should be reversed for lack of adequate specification of reasons and for abuse of discretion. We have concluded that the judgment notwithstanding the verdict must be reversed, but that the order granting the new trial should be affirmed.

I

THE JUDGMENT NOTWITHSTANDING THE VERDICT

As heretofore noted, the state's motion for judgment notwithstanding the verdict was grounded on the design immunity defense and the claimed absence of evidence of a dangerous condition of the offramp. The order states that the design immunity defense had been established and that there was no evidence of a dangerous condition. We are unable to determine from the order whether the latter ground was intended to relate to the motion for judgment notwithstanding the verdict, to the motion for new trial, or both. However, we need not resolve this ambiguity because on appeal the state relies exclusively on the design immunity defense as justification for the order granting the judgment notwithstanding the verdict. the sole question, therefore, is whether the judgment can be sustained on that ground.1

The design immunity provided by Government Code section 830.6 is an affirmative defense which must be pleaded and proved by the public entity. (De La Rosa v. City of San Bernardino, 16 Cal.App.3d 739, 747, 94 Cal.Rptr. 175; Johnston v. County of Yolo, 274 Cal.App.2d 46, 51-52, 79 Cal.Rptr. 33.) The three statutory elements that must be established are: (1) A causal relationship between the plan or design and the accident; (2) the approval of the design in advance of the construction by a legislative body or officer exercising discretionary authority; and (3) a court determination of substantial evidence of the reasonableness of the design. (Mozzetti v. City of Brisbane, 67 Cal.App.3d 565, 574, 136 Cal.Rptr. 751; De La Rosa v. City of San Bernardino, supra, 16 Cal.App.3d 739, 748, 94 Cal.Rptr. 175.2 )

Whether design immunity has been established in a given case is a question for the court and not a jury. (Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d 565, 572, 136 Cal.Rptr. 751. See Baldwin v. State of California, 6 Cal.3d 424, 434, 99 Cal.Rptr. 145, 491 P.2d 1121.) The rationale behind the rule “is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.” (Baldwin v. State of California, supra, 6 Cal.3d 424, 432, fn. 7, 99 Cal.Rptr. 145, 150 n. 7, 491 P.2d 1121, 1126 n. 7.) The immunity extends only to design caused accidents and does not immunize the public entity from liability caused by negligence independent of design. (De La Rosa v. City of San Bernardino, supra, 16 Cal.App.3d 739, 747, 94 Cal.Rptr. 175; Flournoy v. State of California, 275 Cal.App.2d 806, 811, 80 Cal.Rptr. 485.)

The defense is frequently presented to the court on a motion for summary judgment, motion for nonsuit, or motion for directed verdict, and if the court determines that immunity has been established, the jury is instructed that the public entity is not liable for design related damages. (Mozzetti v. City of Brisbane, supra, 67 Cal.App.3d 565, 573, 136 Cal.Rptr. 751.) The court may, of course, try the defense in the conventional manner and if it finds in favor of the public entity on the defense, make findings and conclusions (if requested) and enter judgment accordingly. (See Davis v. Cordova Recreation & Park Dist., 24 Cal.App.3d 789, 791, 101 Cal.Rptr. 358.) If there are disputed factual issues that must be resolved in determining whether the elements of the defense have been established, manifestly, the defense must be tried on its merits. In the present case the state sought to have the defense tried separately and failing in that moved unsuccessfully for a directed verdict. Following the jury verdict, the defense was again raised in the motion for judgment notwithstanding the verdict.

Code of Civil Procedure section 629 provides that the court “on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” In order to have been entitled to a directed verdict, the state must have established “as a matter of law all the elements” of the design immunity defense (Cameron v. State of California, 7 Cal.3d 318, 325, 102 Cal.Rptr. 305, 309, 497 P.2d 777, 781) and, in addition, plaintiffs must have failed to adduce evidence of the state's negligence independent of plan or design which was a proximate cause of the accident. Plaintiffs maintain that the state failed to establish as a matter of law all of the requisite elements of design immunity. We agree.

The state maintains that the trial court's finding in its order granting the motion for judgment notwithstanding the verdict that the state should prevail on the design immunity defense “both as a matter of fact and as a matter of law” is supported by the testimony of past and present engineers for the Department of Transportation; namely, Messrs. Legarra, Estep, Kane and Chaudoin. However, Mr. Chaudoin was the only one who was called by the state; the others were all called by plaintiffs during their case-in-chief and were examined as adverse witnesses. A preliminary question thus arises whether testimony given by the engineers so examined which was unfavorable to plaintiff may be considered in determining whether the state was entitled to a directed verdict on the basis of the design immunity defense.

Ordinarily on a motion for nonsuit or directed verdict, evidence unfavorable to plaintiff which came in through the testimony of the adverse party, or a witness identified with such party, during examination under Evidence Code section 776 may not be considered (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Smellie v. Southern Pacific Co., 212 Cal. 540, 552, 299 P. 529; Morgenroth v. Pacific Medical Center, Inc., 54 Cal.App.3d 521, 530, 126 Cal.Rptr. 681; Weck v. L. A. County Flood Control Dist., 80 Cal.App.2d 182, 191, 181 P.2d 935; cf. Miller v. Dussault, 26 Cal.App.3d 311, 316-317, 103 Cal.Rptr. 147 [rule applied to motion for judgment under Code Civ.Proc., § 631.8])3 and on appeal from a judgment entered on a nonsuit or directed verdict, such unfavorable testimony must be disregarded in reviewing the propriety of the nonsuit or directed verdict. (Anthony v. Hobbie, 25 Cal.2d 814, 818, 155 P.2d 826; Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 646-647, 55 Cal.Rptr. 94.) The foregoing rule is premised on the court's lack of authority to weigh the evidence on a motion for nonsuit or directed verdict. (See Miller v. Dussault, supra, 26 Cal.App.3d 311, 317, 103 Cal.Rptr. 147.)

On submission of a case for determination of the factual issues on the merits, however, all evidence, including evidence elicited under Evidence Code section 776, may be considered and weighed by the judge or jury. (Daniels v. City & County of San Francisco, 40 Cal.2d 614, 625, 255 P.2d 785; Smellie v. Southern Pacific Co., supra, 212 Cal. 540, 559, 299 P.2d 529.) The state argues that since design immunity was a defense addressed to the court, the judge “was sitting as the exclusive trier of fact for determination of the issue [design immunity] on the merits” and was therefore entitled to consider all evidence bearing on the issue. The flaw in the argument is that the court was not empowered to resolve factual issues on the motion for judgment notwithstanding the verdict. It was only empowered to make a legal determination, i. e., whether the state's motion for directed verdict should have been granted on the basis of the design immunity defense. Nevertheless, although the court was not sitting as a fact finder, it was entitled to consider all uncontradicted evidence from whatever source in making that legal determination. The design immunity defense can be deemed to have been established as a matter of law only if the uncontroverted evidence was such that the court would have been compelled to find that all of the elements of the defense had been established. In deciding whether the defense had been so proved, we find no unfairness to plaintiffs in the court's consideration of all uncontradicted evidence, including testimony of adverse witnesses examined under Evidence Code section 776. The state's motion for a directed verdict was not made until after plaintiffs had presented rebuttal evidence and both sides had rested. Plaintiffs thus had the opportunity to introduce evidence rebutting any unfavorable testimony which may have come in during their examination of the state's engineers under Evidence Code section 776. Accordingly, in reviewing the trial court's action, we shall consider all uncontradicted evidence received during the trial bearing on the two elements of design immunity which are in question; namely, whether the striping plan was approved by an employee having discretionary authority and whether approval of the design was reasonable.

The record contains the following evidence bearing on the question whether the striping plan was approved by a state employee having discretionary authority to give such approval. Mr. Chaudoin testified that Figure 6-6 was “adopted” as part of a 1971 traffic manual; Mr. Estep testified that Figure 6-6 was a type of document his department (traffic department) would have put out when he was in charge of that department; Mr. Legarra testified that although he did not personally review Figure 6-6, as the State Highway Engineer whose name appeared on the face sheet of the 1971 traffic manual, he was responsible for its contents. Although the proof was sketchy, the evidence and the reasonable inferences which can be drawn from it were sufficient to show that the striping plan was approved by an officer or employee having discretionary authority to give such approval. (See Baldwin v. State of California, supra, 6 Cal.3d 424, 430-431, 99 Cal.Rptr. 145, 491 P.2d 1121.)

The uncontradicted evidence, however, fails to support the trial court's implied determination that the state had produced sufficient evidence to show that a reasonable employee could have approved the striping plan. A trial court's determination of that issue may be set aside if the evidence fails to support it. (Davis v. Cordova Recreation & Park Dist., supra, 24 Cal.App.3d 789, 798, 101 Cal.Rptr. 358.)

All of the experts agreed that the specifications for the Madison offramp called for a 12-foot travel lane and an 8-foot shoulder, that the offramp shoulder was for emergency parking, including changing a flat tire, and that the effect of striping in accordance with Figure 6-6 was to create a 14-foot travel lane and a 6-foot shoulder. None of the state's engineers knew why Figure 6-6 called for the striping 2 feet from the right edge of the roadway designed for travel.

Mr. Legarra conceded that the striping reduced the shoulder from 8 feet to 6 feet. He stated that he did not know why the shoulder had been so reduced. When asked whether 6 feet would be adequate for emergency parking, he replied: “I think 6 feet would be adequate and I might add that 8 feet itself is not necessarily safe either.”

Mr. Estep also did not know why the white line was placed 2 feet from the edge of the travel way but testified that on the “main line” the white line demarking the shoulder is offset from the edge of the pavement about 1 foot in order to avoid the necessity of frequent repainting of the striping. He conceded that on the “main line” there is a seam between the paved travel lane and the black top shoulder whereas the entire surface of the Madison offramp was black top. When asked about the safety of a 6-foot shoulder, Mr. Estep replied: “I think that most of the time it would be” but conceded that one could not change the left rear tire of a car parked on the shoulder without encroaching onto the travel way.

Mr. Kane testified that he had not seen a striping plan calling for a white line 2 feet from the right edge of the travel way. He agreed that the offramp shoulder was for emergency parking, including changing a flat tire, and when questioned by counsel for the state testified that a 6-foot shoulder was “fairly safe.” In his deposition, however, he testified that a 6-foot shoulder would be “very critical” and while it would be possible to change a tire with that width, “it would be dangerous.”

Mr. Chaudoin said he thought painting the white line off the edge of the pavement was reasonable but on cross-examination testified he did not know why Figure 6-6 required the white stripe to be painted two feet from the edge of the pavement, that the specifications for a single lane offramp such as Madison required an 8-foot shoulder, that the offramp shoulder is available for “emergency parking” and that an “8-foot-minimum is a good standard” for the shoulder. His testimony that the shoulder striping was “reasonable” because it guided motorists during inclement weather did not explain why the striping was placed 2 feet from the edge of the pavement. Although Mr. Chaudoin insisted that painting the white line 2 feet from the edge of the travel portion did not reduce the width of the shoulder, this was manifestly the effect it would have on the motoring public.

Mr. Krueper, plaintiff's expert, testified that in his opinion the state engineer who prepared the striping plan should have reasonably known that a white line painted 2 feet from the edge of the travel way would leave a 6-foot shoulder and thereby create a dangerous condition for motorists required to use the shoulder for emergency parking. He further testified that because of the hazards of a 6-foot shoulder the plans should have provided for the posting of a warning sign saying “No Stopping or Parking At Anytime.”

On the foregoing record, we fail to find sufficient uncontradicted evidence which would compel a judicial determination that the state employee acted reasonably in approving the striping plan. Since none of the state engineers knew why Figure 6-6 called for the striping 2 feet from the right edge of the travel way, there was no basis on which a determination could be made that a reasonable public employee could approve a plan calling for such striping. Furthermore, the uncontradicted evidence was that the specifications for the offramp called for a 12-foot travel way and an 8-foot shoulder, that the shoulder was intended for emergency parking, including changing a tire, that the striping in effect reduced the shoulder width to 6 feet, and that as striped, a person could not change the left rear tire of a car without encroaching onto the travel way. In his discussion of design immunity under Government Code section 830.6, Professor Van Alstyne propounds the issue of reasonableness as follows: “Did the … authorized person act reasonably in concluding that the plan or design would not create a substantial risk of injury when the improvement … was used with due care in a reasonably foreseeable manner?” (Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) p. 556.) The uncontradicted evidence in the case at bench does not compel an affirmative answer to that question.

We, therefore, conclude that the judgment notwithstanding the verdict cannot be upheld on the ground the court should have granted the state a directed verdict on the basis of the design immunity defense.

II

NEW TRIAL ORDER

The new trial order was granted for insufficiency of the evidence to justify the verdict and excessive damages. Inasmuch as we conclude that the order is sustainable on the first ground, we need not consider the ground of excessive damages.

In his specification of reasons for granting the new trial for insufficiency of the evidence, the judge expressed the view that the evidence failed to support the existence of a dangerous condition and, in addition, that the evidence failed to support the jury's findings on allocation of fault. In his specification of reasons for his determination that there was no dangerous condition, the judge stated that the state was not negligent in marking off a 6-foot shoulder for emergency parking because there previously had been no delineation of an area for emergency parking so that, in the judge's view, the striping was an improvement over the preexisting condition. He further stated that the emergency parking area was for “parking” and not “parking and working” and referred to the state's evidence that over the years “millions of vehicles” had traversed the offramp without a similar accident.

On allocation of fault, the judge was of the view that the proximate cause of the accident was the negligence and intoxication of decedent and Mr. Arias and not the design of the offramp. He referred to the fact that decedent was intoxicated; that he turned off the lights on his automobile before getting out; that the white line was at his feet as he was attempting to change the tire and his body extended into the travel portion of the offramp; and that decedent could have driven further off the shoulder onto the ice plants. The judge stated that Mr. Arias was intoxicated and failed to see the parked vehicle despite the fact that it was located on a straight stretch of the ramp some distance from its entrance and that a sober driver would have seen the parked car and decedent working on it. Under the circumstances, the judge was of the view that the decedent's negligence was far in excess of the 20 percent found by the jury and that Mr. Arias' negligence was likewise far in excess of the 10 percent found by the jury.4

Although it is doubtful whether the specification of reasons for the judge's determination that the evidence was insufficient to establish a dangerous condition was adequate, the reasons given for the court's determination that the evidence did not support the jury's apportionment of fault satisfy the requirements of Code of Civil Procedure section 657. As interpreted by Mercer v. Perez, 68 Cal.2d 104, 116, 65 Cal.Rptr. 315, 436 P.2d 315, section 657 requires the judge to “briefly identify the portion of the record which convinces the judge” that the jury should have reached a different verdict. By pointing to specific items of evidence which convinced the judge that there was substantial negligence on the part of decedent and Mr. Arias, the specification of reasons enables us to determine whether there is substantial basis in the record for the ground on which the order was made. (See O'Kelly v. Willig Freight Lines, 66 Cal.App.3d 578, 583, 136 Cal.Rptr. 171.) We find no abuse of discretion in the order granting the new trial.

DISPOSITION

The judgment notwithstanding the verdict is reversed and the order granting a new trial is affirmed. Plaintiffs shall recover their costs on appeal.

FOOTNOTES

1.  The state's decision not to seek to support the judgment notwithstanding the verdict on the ground that there was no evidence that a dangerous condition existed is understandable. In reviewing the validity of an order granting a judgment notwithstanding the verdict, a reviewing court must resolve all conflicts in the evidence and all reasonable inferences therefrom in favor of the jury verdict. (Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 515, 143 Cal.Rptr. 247, 573 P.2d 465; Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161.) Whether a given set of facts and circumstances creates a dangerous condition is normally a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. (Gov.Code, § 830.2; Bakity v. County of Riverside, 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.) On the record before us, it cannot be said as a matter of law that a dangerous condition did not exist.

2.  Government Code section 830.6 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.”

3.  Code of Civil Procedure section 631.8 was amended in 1978 (Stats.1978, ch. 372, p. 1045) to permit the court to consider all evidence received, from whatever source, provided that the party against whom the motion has been made was afforded the opportunity to present rebuttal evidence and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.

4.  Before Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, contributory negligence of a decedent was a bar to a wrongful death action by the heirs. (Buckley v. Chadwick, 45 Cal.2d 183, 201, 288 P.2d 12.) Under Li, contributory negligence of a decedent would not bar recovery but the damages recoverable would be reduced in proportion to the amount of negligence attributable to the decedent.

TAMURA, Acting Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.