WEDDLE v. STATE (1979)

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.

California Highway patrol Officer Farned arrived on the scene shortly after the accident. He checked decedent 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. He noted a dirt embankment with ice plants immediately to the right of where the car was parked. The rear bumper of the parked 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 “not covered by contract,” and 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. There was engineering testimony concerning the plans for the offramp, the striping, and the safety of the offramp which evidence 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.^[FN1]

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.^[FN2] )

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, 491 P.2d 1121, 1126.) The defense is usually 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 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.)

In the present case the state sought to have the defense tried separately and failing in that sought unsuccessfully to have the issue determined on a motion for a directed verdict. Following the jury verdict, the defense was 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 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 all of the elements required for design immunity and, in addition, that there was evidence of the state's negligence apart from the design of the offramp. We have concluded that the state failed to establish all of the elements of design immunity and therefore need not consider whether there was evidence of negligence independent of design.

While all of the statutory elements were established to immunize the state from liability for the original design of the Madison offramp, we find shortcomings with respect to the striping plan.

Although there is evidence that the striping was ordered by an assistant state traffic engineer, we find no evidence as to the identity of the official who approved the striping plan much less whether that official had discretionary authority to give approval. The state's chief witness, Mr. Chaudoin, traffic engineer for the Department of Transportation, testified that Figure 6-6 was at some undisclosed date made a part of the 1971 traffic manual and that “it was adopted,” he does not tell us by whom or when.

Nor does the evidence support the trial court's implied finding that there was some substantial evidence on the basis of which a reasonable public employee could have approved the design. A trial court's finding that there is evidence on the basis of which a reasonable public employee could approve the design is subject to appellate review and may be set aside if the record fails to contain evidence supporting the finding. (See Cameron v. State of California, supra, 7 Cal.3d 318, 324, 102 Cal.Rptr. 305, 497 P.2d 777; Davis v. Cordova Recreation & Park Dist., 24 Cal.App.3d 789, 798, 101 Cal.Rptr. 358.)

Although on direct examination Mr. Chaudoin said he thought painting the white line two feet off the edge of the pavement was reasonable, on cross-examination he testified that he did not know why the Figure 6-6 plan required the white stripe to be painted two feet from the edge of the pavement and conceded 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 explanation that the shoulder striping was “reasonable” because it guided motorists during inclement weather is not an explanation why the striping was placed two feet from the edge of the pavement so as to leave a 6-foot shoulder. All of the experts agreed that the shoulder could be used for emergency parking, such as changing a flat tire, and that the state's specifications called for an 8-foot shoulder. Although Mr. Chaudoin testified that painting the white line two feet from the edge of the pavement did not reduce the width of the shoulder, this was manifestly the effect it would have on the motoring public. There being no explanation as to why the plan called for the striping two feet from the paved edge, there was no basis on which the trial court could find that a reasonable public employee could approve the plan.

Based on the showing made, we conclude that the state failed as a matter of law to establish all of the elements of design immunity. The judgment notwithstanding the verdict must therefore be reversed.

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.^[FN3]

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, 323, 436 P.2d 315, 323, 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, s 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.  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, 289 P.2d 242.) 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.