ANDERSON v. CITY OF THOUSAND OAKS (1976)

Appellants Anderson and Clouse brought this action for the wrongful death of their son when the automobile in which he was riding failed to negotiate the curve of a road designed, constructed, and maintained by respondent City of Thousand Oaks. After responsive pleadings were filed, the city moved for summary judgment on the basis of several grounds of public entity immunity. Summary judgment was granted and the action was dismissed, whereupon appellant filed this appeal.

Facts

On the evening of November 4, 1972, appellants' son, Dennis Michael Anderson, was riding as a passenger in an automobile which was proceeding northward along Lynn Road, approaching a section of the road which curves to the left in a 65 degree arc before reaching the Ventura Freeway. The automobile failed to negotiate the curve at a point near the Green Meadow Drive intersection and ran off the road, causing the death of both Anderson and the driver of the car. At the time of this occurrence, Lynn Road had been open to the motoring public for just over one month, but the City of Thousand Oaks had not set up any caution signs or roadway striping warning northbound drivers proceeding at the posted 65 mile per hour speed limit of the upcoming curve.

The wrongful death action subsequently filed by appellants set forth three alternate grounds of liability as to respondent city: (1) negligent maintenance of the roadway in a dangerous condition, insofar as the posted speed limit was 65 miles per hour while the design speed of the curve was 45 miles per hour; (2) negligent failure to provide speed or warning signs for the curve, which thereby rendered it dangerous at speeds in excess of 45 miles per hour; (3) the city was on notice of the dangerous condition of the roadway by virtue of a meeting of the Ventura City Traffic Safety Council on October 18, 1972.

In response to appellants' complaint, respondent denied liability on all counts, set up numerous affirmative defenses, and then moved for summary judgment based upon the following three defenses: (1) design immunity for improvements of public property constructed pursuant to an approved plan (Gov.Code § 830.6); (2) sign placement immunity, where the failure to provide regulatory control signals did not constitute a condition endangering the safe flow of traffic (Gov.Code §§ 830.4, 830.8); (3) lack of actual or constructive notice of any dangerous condition, inasmuch as the road was only recently built and was adequately inspected both in design and construction (Gov.Code §§ 835, 835.2). In support of its motion for summary judgment, the respondent included its council resolutions, design plans for the roadway, accident computer printouts, and declarations by its Director of Public Works and Assistant Traffic Engineer. Appellants opposed the motion with a declaration from a registered civil engineer stating that the Lynn Road curve had a design speed of 45 miles per hour, which, coupled with the safety factor built into the road, yielded a maximum safe speed of 55 miles per hour. It was further declared that no signs, striping, or other indicators warned a northbound motorist that he would have difficulty negotiating the curve ahead at speeds in excess of 55 miles per hour. Finally, the expert concluded that, given the foregoing two factors, the roadway was in a dangerous condition when traveled in excess of 55 miles per hour, but within the 65 mile per hour posted speed limit.

The trial court, without specifying the grounds of its decision, granted the respondent's motion for summary judgment. We find, however, that such a ruling was improper since appellants' proof controverting respondent's claims of immunity is sufficient to raise triable issues of fact.

Discussion

The granting of a motion for summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent's affidavits do not show such facts as may be deemed by the court sufficient to present a triable issue. (Code Civ.Proc. § 437c; Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) To prevail, therefore, the moving party's affidavits must set forth facts establishing every element necessary to sustain a judgment in his favor before defects in counteraffidavits need be examined. (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) On the other hand, it is axiomatic that counteraffidavits are construed liberally and need only set forth evidentiary facts supporting merely a possible cause of action (Orser v. George, 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708), since the purpose of the summary judgment procedure is to determine if issues exist to be tried, rather than to try the issues (Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703, 4 Cal.Rptr. 103). Examining the affidavits and counteraffidavits in the case at bench in light of these established rules, we must determine whether respondent has met its burden of establishing its immunity from liability for injury caused by the allegedly dangerous condition of its property.

Government Code section 835 provides for the liability of a public entity for injury caused by the dangerous condition of its public property (1) which is created by the negligence of a public employee acting within the scope of his employment (Gov. Code § 835, subd. (a)), or (2) which may not be directly attributable to the public entity, but which goes uncorrected after the entity has notice of the condition in time to take corrective measures (Gov. Code § 835, subd. (b)).¹ Respondent claims summary judgment was proper as it is shielded from liability under the first prong of section 835 by either design immunity or by sign placement immunity, and is exempt from liability under the second prong because, as a matter of law, it had no notice of any dangerous condition along Lynn Road. We now proceed to discuss the sufficiency of respondent's proof as to each of these claimed immunities.

I

Design immunity, the first possible ground for the granting of the summary judgment, is an affirmative defense to liability for the dangerous condition of public property, and as such it must be pleaded and proved by the defendant public entity. (Hilts v. County of Solano, 265 Cal.App.2d 161, 175, 71 Cal.Rptr. 275.) Under Government Code section 830.6,² three basic elements must be established in order to claim this defense: first, a causal relationship between the plan and the accident; second, discretionary approval of the plan prior to construction; third, substantial evidence supporting the reasonableness of the design. (De La Rosa v. City of San Bernardino, 16 Cal.App.3d 739, 748, 94 Cal.Rptr. 175; Johnston v. County of Yolo, 274 Cal.App.2d 46, 51–52, 79 Cal.Rptr. 33.) Because the existence of the first element is undisputed, we begin with a discussion of the latter two elements.

In examining the sufficiency of respondent's proof as to the elements of prior approval and reasonableness of approval of the Lynn Road plan, it will be helpful to bear in mind the rationale underlying design immunity. Basically, this defense is predicated upon the concept of separation of powers—that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of ‘impolitic interference with the freedom of decision-making by those public officials to whom the function of making such decisions has been vested.’ (Cameron v. State of California, 7 Cal.3d 318, 326, 102 Cal.Rptr. 305, 310, 497 P.2d 777, 782, quoting from 4 Cal.Law Revision Comm'n 823 (1963); see Van Alstyne, calif.Gov. Tort Liability (1964), § 6.32.) Additionally, judical economy may underlie design immunity—forbidding a jury from reweighing the same factors considered by the governmental entity which approved the design.³ (Baldwin v. State of California, 6 Cal.3d 424, 432, fn. 7, 99 Cal.Rptr. 145, 491 P.2d 1121.)

Respondent's showing of a detailed plan, drawn up by a competent engineering firm, and approved by the city council in the exercise of its discretionary authority,⁴ is certainly persuasive evidence of both elements of prior approval and reasonableness for purposes of the design immunity defense. But insofar as the plan which was approved failed to incorporate a basic element of a safe design, there can be no shelter provided the approving entity under the design immunity defense when this defect has wreaked public harm. (See Cameron, supra, 7 Cal.3d at 326, 102 Cal.Rptr. 305, 497 P.2d 777.) In the Comeron case, the California Supreme Court found that the design immunity defense did not apply in the case of an unevenly banked S-curve, where the plans for the curve failed to specify the degree of banking. In so holding, the court reasoned that there would be ‘no reexamination of a discretionary decision in contravention of the design immunity policy because there has been no such decision proved.’ (Id.; emphasis added.)

Looking to appellants' counter-affidavits, taking as true the conclusions of their expert, we find a striking resemblance in the instant case to the situation in Cameron. Here, an element fundamental to the safe design of a curve is absent from the plans—that is, a warning to motorists approaching the curve that it cannot be safely negotiated at the speed which has been posted for the straight section of the roadway. Such warnings could easily have been incorporated in the plans in the form of speed signs posted in advance of the curve, or by caution signs or center-line striping preceding the curve. We cannot imply, as respondent urges, that the maximum safe speed of the curve was considered prior to the approval of the plans simply because some other types of signing were set forth in the plans. Nor can we imply that signs warning of the curve had been considered in conjunction with the plans but were rejected. (See City of Louisville v. Redmon, 265 Ky. 300, 96 S.W.2d 866 (design so obviously dangerous as to indicate failure to consider the matter).) Consequently, because respondent's affidavits fail to affirmatively establish the prior consideration of the maximum safe speed of the Lynn Road curve, we must hold under Cameron that summary judgment cannot be sustained in its favor on the basis of design immunity.⁵

II

Sign placement immunity under Government Code section 830.4⁶ is the second possible ground for the granting of a summary judgment in favor of the City of Thousand Oaks. The broad discretion road control signs is limited, however, by the requirement that there be adequate warning of dangerous conditions not reasonably apparent to motorists. (Gov.Code, § 830.8.)⁷ Consequently, a public entity is not shielded from liability under section 835 for the creation of a dangerous condition in its property if it fails to post signs in circumstances constituting a trap to the motorist. (See Bakity v. County of Riverside, 12 Cal.App.3d 24, 31, 90 Cal.Rptr. 541; Teall v. City of Cudahy, 60 Cal.2d 431, 433–434, 34 Cal.Rptr. 869, 386 P.2d 493.) Appellants' averments in their counter-affidavit as to the speed parameters of the Lynn Road curve illustrate just such a trap, the kind of condition which section 830.8 was aimed at eliminating. Accepting these averments as true, it cannot be said that appellants do not state a triable issue of fact as to the dangerousness of the curved section of Lynn Road when posted for travel at 65 mile per hour. Without any warnings prior to the curve, even a cautious driver might well commit himself to the curve at a speed ten miles per hour in excess of the maximum safe speed, posing the grave danger of losing control or of leaving the roadway. We conclude, therefore, that the trial court erred if it granted summary judgment in respondent's favor on the basis of sign placement immunity.

It would be surplusage to discuss the city's claim to immunity on the basis of lack of actual or constructive notice under subdivision (b) of Government Code section 835, as it has already been established that summary judgment was unjustified on the basis of both design and sign placement immunity, either of which might have shielded the city from liability under subdivision (a) of section 835. Factual issues remain for determination at trial that are not capable of final resolution exclusively by notice immunity under Government Code sections 835 and 835.2, even if determined to be a partial bar to respondent's liability.

The judgment is reversed and the case is remanded for trial. Costs to appellants.

FOOTNOTES

1.  Government Code, § 835 provides:‘Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.'

2.  Section 830.6 sets forth the immunity for an approved plan as follows:‘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.  Other jurisdictions also view the immunity as a matter of competence, relegating decisions as to the sufficiency and adequacy of highway design to competent engineers, rather than to a jury of untrained laymen. (E. g., Cumberland v. Turney, 177 Md. 297, 9 A.2d 561, 569; see 45 A.L.R.3d 886–887.)

4.  The issue was not raised (and it is thereby conceded) that the Thousand Oaks City Council, which approved the road improvement plans, was the proper body to exercise the discretionary authority referred to in section 830.6. Such approval, and the subsequent construction, took place (according to respondent's affidavits) in the following order: First, special counsel was employed for the formation of an assessment district for the improvements. Then, on September 10, 1970, the city contracted with McIntyre & Quiros, civil engineers, to provide plans and specifications for the construction at a cost not in excess of $31,000. The plans so provided were adopted on May 18, 1971, and re-adopted on November 16, 1971, since the project had to be reinstated for financing reasons. Construction was awarded to A. C. Construction Company, and on September 15, 1972. Lynn Road was open to traffic. On October 5, 1972, the road was formally approved as being in compliance with plans and specifications.

5.  While we need not reach the element of the reasonableness of the approval of the road plan, we should note that we would still be compelled to hold that such approval is unreasonable in the face of appellants' evidence that the curve had a design speed of 45 miles per hour, a maximum safe speed of 55 miles per hour, and a posted speed of 65 miles per hour. Surely the very essence of safety in the design of a curve is to provide sufficient banking so that the posted speed can be safely maintained, or to provide warning signs to allow drivers to reduce their speed before entering the curve. (See Robinson v. City and County of San Francisco, 41 Cal.App.3d 334, 337, 116 Cal.Rptr. 125 (reasonableness raised in the context of a summary judgment proceeding is a triable factual issue); Davis v. Cordova Recreation and Park District, Cal.App.3d 789, 796, 101 Cal.Rptr. 358 (reasonableness of design vis a vis foreseeable public use).)

6.  Section 830.4 provides as follows: ‘A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.’

7.  Section 830.8 provides in pertinent part: ‘Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.’

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.