WEDDLE v. STATE (1983)

OPINION

On the evening of May 17, 1975, Ronald Weddle, accompanied by his wife and three minor children, stopped the family car on a westbound off-ramp of the Riverside Freeway in Riverside County to effect emergency repairs.   He was struck and killed by a passing vehicle.   Ronald Weddle's wife and children filed this action for wrongful death and emotional distress against the State of California in October 1975, alleging a dangerous condition of public property.

This lawsuit has now been tried twice.   The first trial commenced in November 1977, and resulted in verdicts in favor of the plaintiffs on the wrongful death count in the amount of $625,000 and in favor of Shawn Weddle, one of decedent's minor children, on the emotional distress count for $11,000.   The jury found the state bore 70 percent of the responsibility for the accident, decedent 20 percent, and “other persons,” presumably the driver of the other vehicle, 10 percent.   After judgment was entered, the state moved for a new trial, and for judgment notwithstanding the verdict.   Both motions were granted.   The Weddles appealed, and this court reversed the judgment notwithstanding the verdict, but affirmed the new trial order.

The case went to trial for the second time in early 1980.   The jury found in favor of the plaintiffs on the wrongful death count in the amount of $1,250,000 and in favor of Shawn Weddle on the emotional distress count in the amount of $90,000.   The jury attributed 85 percent of the total negligence to the State, 5 percent to the decedent, and 10 percent to “other persons.”   After trial, the state again moved for a new trial and for judgment notwithstanding the verdict.   The trial court granted the new trial motion but denied the motion for judgment notwithstanding the verdict.

The state has appealed the denial of its motion for judgment notwithstanding the verdict.   The Weddles have appealed from the order granting the new trial, and the state has taken a protective cross-appeal from the judgment.

This proceeding presents both purely procedural and substantive issues.   The procedural issues will be dealt with first.

PROCEDURAL ISSUES

1. Facts

At the beginning of trial, the state moved for a ruling on the question of design immunity under Government Code section 830.6, which is an issue solely for the court, and may provide a complete defense for public entities.   The motion was denied.   On March 26, after both sides had rested, and out of the jury's presence, the state moved for a partial directed verdict on the design immunity issue.¹  The motion was denied.   The state then orally requested findings on the design immunity issue.   After a brief colloquy between the court and counsel, plaintiff's counsel was directed to prepare findings, and the court indicated the state would be given an opportunity to object to those findings.

The case went to the jury.   On April 1 the jury returned its verdict.   Out of the presence of the jury, plaintiffs moved for prejudgment interest;  the court gave the plaintiffs ten days in which to prepare and submit points and authorities, and the state ten days to answer.   On April 2, pursuant to a three-and-one-half page order signed by the trial judge, judgment was entered in accordance with the jury's verdict.   Notice of entry of judgment was mailed by the clerk the following day.

On April 7, the trial judge issued an “order vacating judgment and reserving jurisdiction” so that “additional arguments be made and further consideration be given.”   The following day, the plaintiffs submitted points and authorities in support of the motion for prejudgment interest.

On April 10, plaintiffs' counsel by letter stated that findings on design immunity were not required as a matter of law.   On April 18, the state took exception to this position by letter, and submitted points and authorities in opposition to the prejudgment interest motion.   The next day, the state made a written request for findings of fact and conclusions of law pursuant to Code of Civil Procedure section 632.

On May 15, the state's request for findings and conclusions was denied without prejudice to renew the request at a later stage.

On June 2, the trial court issued this order:  “Good cause appearing, it is the order of the court that the judgment of April 2, 1980, heretofore vacated on April 7, 1980, be and it is hereby reinstated to its full force and effect this date.”

On June 16, the state moved for a new trial, and for judgment notwithstanding the verdict.

On July 23, the court granted the new trial, and denied the motion for judgment notwithstanding the verdict.   The request for findings and conclusions was denied, and the motion for prejudgment interest declared moot.

2. Discussion

As noted above, this proceeding involves an appeal by the plaintiffs from the order granting a new trial, and an appeal by the state from the denial of its motion for judgment notwithstanding the verdict.   It is the plaintiffs' contention that the April 2 judgment was the only valid judgment in the case, that the trial court was without power to vacate that judgment, that the state's motions for new trial and judgment notwithstanding the verdict made on June 16 were as a consequence not made within the statutorily prescribed period, and that the trial court was hence without power to rule on those motions.

 Code of Civil Procedure section 659 provides that a motion for a new trial must be made within 15 days of the mailing of notice of entry of judgment.   This time limit is jurisdictional.  (Smith v. Superior Court (1976) 64 Cal.App.3d 434, 134 Cal.Rptr. 531.)  Section 629 of the Code of Civil Procedure makes this time limit applicable to motions for judgment notwithstanding the verdict.   Plainly, the state's June 16 motions were not made within 15 days of the April 3 mailing of notice of entry of judgment.   If the trial court was without power to vacate the judgment as it did on April 7, the motions were untimely.

We conclude the trial court did not err in vacating the April 2 judgment.   Our conclusion is based on two related grounds.

First, the April 2 judgment was void at the time of entry.   On April 1, the court indicated it would allow points and authorities to be submitted on the issue of whether plaintiff was entitled to prejudgment interest.   The court had not considered the motion, nor had the papers even been filed, at the time of entry of judgment the following day.

 It is basic that there can be but one final judgment in a cause.  (DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 431, 160 Cal.Rptr. 899.)  “Where special issues which form only a portion of the controversy between the parties to the action are submitted to a jury and the remaining issues are tried by the court and findings of fact made thereon, no judgment can be entered in the case at the time the jury renders its verdict.   The case has not been tried and the trial has not been concluded until the court has rendered its decision disposing of all issues submitted to it, and there is no decision until the court has passed upon the facts and drawn its conclusions thereon.  [Citations.]”  (Shapiro v. Equitable Life Assur. Soc. (1946) 76 Cal.App.2d 75, 98–99, 172 P.2d 725;  see Alton v. Rogers (1954) 127 Cal.App.2d 667, 677–679, 274 P.2d 487;  Potvin v. Pacific Greyhound Lines, Inc. (1933) 130 Cal.App. 510, 512, 20 P.2d 129.)   In this case the rights of the parties could not be completely adjudicated until the prejudgment interest issue was passed on.   Because the issue had not been resolved at the time of purported entry of judgment on April 2, the judgment was not validly entered.

 Second, in vacating the April 2 judgment, the trial court acted within its inherent power to rectify inadvertent error.  “Independent of statute, a trial court has power to correct mistakes and to annul orders and judgments inadvertently or improvidently made.   A trial court has power to vacate judgments and orders inadvertently made which are not actually the result of the exercise of judgment.”  (Estate of Doane (1964) 62 Cal.2d 68, 71, 41 Cal.Rptr. 165, 396 P.2d 581;  accord, In re Candelario (1970) 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729;  Bloniarz v. Roloson (1969) 70 Cal.2d 143, 148, 74 Cal.Rptr. 285, 449 P.2d 221;  Minardi v. Collopy (1957) 49 Cal.2d 348, 352–353, 316 P.2d 952;  see also Code Civ.Proc., § 128.)   In this case it is clear that the April 2 judgment was inadvertently entered.   This is so because at the time of entry of judgment, the trial court was unquestionably aware that it had yet to consider argument and rule on the prejudgment interest issue.   The court also had directed plaintiffs' counsel to prepare proposed findings on the design immunity issue and indicated it would allow the state an opportunity to object to those findings.   It is contemplated under California Rules of Court, rule 232, that where findings are required, judgment should not be entered before findings are made and filed.   In light of the trial court's knowledge of this unfinished business, the judgment entered on April 2, though signed by the court, could only have been an inadvertence, and not the result of a deliberate exercise of judgment.   As such, the court acted within its powers in vacating the judgment.

SUBSTANTIVE ISSUES

I. STATE'S APPEAL FROM DENIAL OF JUDGMENT N.O.V.

The state contends that the trial court erred in failing to grant its motion for judgment notwithstanding the verdict.   In order to prevail, the state must show that the court erred in denying its design immunity defense, and that it was entitled to prevail as a matter of law on the question of whether it had negligently failed to warn of a dangerous condition.  (See Cameron v. State of California (1972) 7 Cal.3d 318, 329, 102 Cal.Rptr. 305, 497 P.2d 777.)   It has not done so.

1. Design Immunity.

 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 (1971) 16 Cal.App.3d 739, 747, 94 Cal.Rptr. 175;  Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 50, 79 Cal.Rptr. 33.)   Three elements must be established:  (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 trial or appellate court determination of substantial evidence of the reasonableness of the design.   (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 574, 136 Cal.Rptr. 751;  De La Rosa v. City of San Bernardino, supra, 16 Cal.App.3d at p. 748, 94 Cal.Rptr. 175.) ²

 Causal Relationship

The design feature at issue in the present case is the striping plan for the Madison Street off-ramp of the Riverside Freeway.   At this point, a brief factual review is required.

The off-ramp was completed in 1959.   The state's highway design manual then, and through the time of trial, specified a standard travel lane 12 feet wide and a shoulder width of 8 feet for all single-lane off-ramps such as the one in question.   One of the purposes, if not the main purpose, of specifying an 8-foot wide shoulder area was to enable motorists to park on the shoulder and perform emergency repairs in relative safety.

The Madison off-ramp was built to these specifications.   There was a 2-foot cement gutter to the left of the travel lane, a 12-foot blacktop travel lane and an 8-foot blacktop shoulder to the right.   There was no shoulder striping on the ramp when it was constructed, so the appearance was of an undifferentiated 20-foot blacktop travel lane.

In October 1973, a 3-inch wide stripe was placed on the off-ramp, two feet off the right edge of the travel lane, in accordance with a work order issued by a state traffic engineer in December 1971 for the striping of all ramps in the district in conformance with a striping plan entitled “Figure 6–6, Typical Ramp Delineations.”   The practical effect of the striping was to delineate a 14-foot travel lane and a 6-foot shoulder.

Just before the commencement of the off-ramp, there was a posted sign reading, “Madison Street, Next Right,” and on the same post a sign stating “Emergency Parking Only.”   The effective width of the shoulder where these signs were located was 8 feet, and there was no indication that the effective width of the shoulder on the ramp narrowed to 6 feet.

The state contends that a causal relationship between the striping plan and the accident was established by the testimony of the plaintiffs' engineering expert, Mr. Krueper, who testified that the narrowing of the shoulder to 6 feet created a dangerous condition, which in turn caused the accident.   The plaintiffs, however, argue that the striping plan called for left edge striping, and that the absence of such striping on the Madison off-ramp could have been a contributing cause of the accident since it might have encouraged the driver of the vehicle that struck decedent to tend to the right, being guided solely by the right edge striping.   Since the plan called for left edge striping, plaintiffs argue, and the plan was not complied with, there could not be a causal relationship between the plan and the accident.

This argument rests on a highly questionable interpretation of the 1971 edition of the state's Traffic Manual, which provided:

“Uncurbed off- and on-ramps shall be striped as shown in Figure 6–6.   On-ramps which are curbed on the left side but not on the right, the right edge delineation should be the same as specified for uncurbed ramps.”

The plaintiffs read this as indicating that left edge striping is to be omitted only on on-ramps which are curbed to the left, not on off-ramps, such as the one in question, which are similarly curbed.   However, one of the state's expert witnesses explained the hyphen between “on” and “ramps” in the second sentence quoted above as an obvious typographic error, and the plaintiffs offer no explanation for the distinction between on- and off-ramps which they advance.   Further, a 1967 Circular Letter from a supervisory engineer, containing identical language, omits the hyphen.   The trial court made no explicit findings on this issue;  we conclude that the plaintiffs' theory is to be given no credence.

B. Discretionary Approval

The state contends that the second element of the design immunity defense, advance approval of the design by an employee exercising discretionary authority, was established by evidence that the striping order pursuant to which the Madison off-ramp was striped was signed by assistant district traffic engineer L.S. Eisenhart, an employee with the authority to issue such orders.   And the state stresses that the decision to place striping two feet off the right edge of travel lanes, which eventually manifested itself in Figure 6–6, was the result of a study by a striping delineation task force of state engineers, beginning in 1967 and continuing for “a year or two,” and that Circular Letter 67–231, the precursor of Figure 6–6, was signed by state highway engineer John Legarra, an official with statewide responsibilities.

The plaintiffs argue that these facts do not establish discretionary approval.   First, there was no showing that Eisenhart did more than incorporate the striping standards into his striping order, without passing on the substance of the design itself.   Second, the evidence shows that the task force never considered the effect that the striping standards would have on the usable width of the shoulder itself.   The task force leader testified that “[i]f the design department felt there was some necessary adjustment [to be made as a result of the task force's striping standards], we assumed they would make it.”   Third, the state virtually concedes in its reply brief that Mr. Legarra did not consider the effect of the striping plan he approved on the usable shoulder width, apparently taking the position that one of his subordinates must have done so.

The plaintiffs argue that in order to satisfy the test of discretionary approval, there must be an actual, informed exercise of discretion in light of available design alternatives, as contrasted with merely nominal approval by an official possessing discretionary power.   Curiously, the state does not dispute this proposition.   Research has revealed no case law directly addressing the issue.

 The better view appears to be that an actual informed exercise of discretion is required.  Government Code section 830.6 refers to a public “body or employee exercising discretionary authority to give such approval” (emphasis added).   Further, the design immunity defense “is predicated upon the concept of separation of powers—that is, the judicial branch ․ should not review the discretionary decisions of legislative or executive bodies ․”  (Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 89, 135 Cal.Rptr. 127.)   If in a given instance no discretion was in fact exercised, then there can be no risk of interference with a discretionary decision.   The defense does not exist to immunize decisions which have not been made.  (See Cameron v. State of California, supra, 7 Cal.3d at pp. 325–326, 102 Cal.Rptr. 305, 497 P.2d 777;  Van Alstyne, Cal. Government Tort Liability Practice (1980) § 3.37 f, p. 245.)   Thus, the state has failed to prove the second element of the design immunity defense.

C. Substantial Evidence of Reasonableness.

The state propounded three reasons why it was reasonable for the striping plan to call for a stripe offset two feet from the right edge of the travel way:

“(1) To guide and encourage motorists to drive, as near as may be, in the center of the travel lane;  (2) to avoid the appearance of the shoulder as an additional travel lane which might present obstructions to the free flow of traffic;  and (3) to encourage motorists to park as far to the right in the shoulder area as possible.”

The plaintiffs respond that none of these objectives provide substantial evidence on the basis of which a reasonable public employee could have approved a design which narrowed the usable width of the shoulder from 8 feet to 6 feet, in light of the fact that a main purpose of specifying an 8-foot shoulder was to provide motorists in disabled vehicles with an area in which to perform emergency repairs in comparative safety.

As to the first objective, the state's experts testified that most motorists tended to hug the left side of the travel way;  it was considered desirable that they drive in the center of the travel way.   The record fails to indicate what, if any, advantages flow from having motorists in the single lane of an off-ramp travel in the center as opposed to tending toward the left.   Clearly, to the extent that the safety of motorists stranded on the right shoulder is important, passing vehicles should be kept to the left of the travel lane as far as otherwise practicable.

With regard to the second justification for placing the stripe so as to reduce the effective width of the shoulder to 6 feet, the state introduced evidence that a 1961 edition of a federal manual of highway traffic control devices stated “[w]here the contrast [between the lane and the shoulder] is not sharp, and the paved shoulder is eight feet or less in width, the appearance of a traffic lane can be avoided to a considerable extent by placing the edge marking on the shoulder one to two feet from the edge of the traffic lane.”   However, at the time the state's striping plan was promulgated, a 1970 edition of the federal manual had appeared, which eliminated this suggestion.   It could not have been reasonable for a state official in 1971 to rely on recommendations contained in a federal traffic manual which was a decade old at the time and which had been superseded.³

The state failed to adduce substantial evidence that there was any actual danger that motorists would mistake the 8-foot shoulder for a travel lane.   It was not claimed that the 8-foot shoulder was clearly confusing in appearance, or that the striping delineation task force had observed any motorists who had mistaken such shoulders for travel lanes.   A state engineer testified that the decision to move the striping was “based on observations that we made that indicated to us that it might be inviting [for motorists to mistake the shoulder for a lane].”   The observations were never specified.

 The state appears to take the position that this expert testimony, without more, constitutes substantial evidence of the reasonableness of the striping plan.   We disagree.   The mere fact that an expert witness testifies that in his opinion a design is reasonable does not make it so.  (See Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 797–800, 101 Cal.Rptr. 358.)   Substantial evidence is that which “reasonably inspires confidence” and is of “solid value.”  (Id., at p. 798, 101 Cal.Rptr. 358.)

 The state's third asserted justification for creating a shoulder with a 6-foot effective width, to “encourage motorists to park as far to the right of the shoulder area as possible,” is similarly flawed.   What possible benefit this could produce, given that the striping widened the effective width of the travel lane by two feet at the same time it narrowed the shoulder by two feet, is not apparent from the record.   We can conceive of none.

2. Failure to Warn of Dangerous Condition.

Government Code section 830.8 makes a public entity liable if it fails to warn of a dangerous condition which endangers 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.   The plaintiffs contend that, since the “Emergency Parking Only” sign was located in an area where the shoulder was 8 feet wide, but the shoulder narrowed without warning to 6 feet, a reasonably prudent motorist in a disabled vehicle would be induced to pull over onto the shoulder in the reasonable belief that he could safely attempt emergency repairs.   However, the shoulder width was insufficient to allow repairs to be safely made.   Thus, plaintiffs contend, the absence of a warning sign coupled with the insufficient width of the shoulder constituted a “hidden trap.”

The state, stressing that there is no duty to warn of the obvious, asserts that “it is incredulous [sic] that the decedent[,] who parked on the shoulder of the off-ramp, jacked the car up, and began to work on his car, would not realize in the exercise of due care, that his body would be partially in the traveled way․  [A] trap must constitute a ‘hidden hazard.’   Nothing was hidden from Mr. Weddle before he began to work on his car.”   The plaintiffs respond to this argument with a detailed discussion of why it was reasonable for the decedent to have attempted to change his tire once he found himself on the 6-foot shoulder, as opposed to pursuing other options, such as walking to a service station, or attempting to drive the car further.

 This dispute misses the point.   The issue under Government Code section 830.8 is not whether the dangerous condition would be apparent to an individual who was already caught in it—it is whether the dangerous condition would be reasonably apparent to a person exercising due care, so that he could avoid it.   What the decedent should have done once he was parked on the shoulder relates to the degree of his comparative negligence.   The trial court did not err in allowing the issue of failure to warn of a dangerous condition to go to the jury.

II. PLAINTIFFS' APPEAL FROM GRANT OF NEW TRIAL

1. Standard of Review.

 A trial judge ordinarily has quite broad discretion to order a new trial.  (See Code Civ.Proc., § 657;  Estate of Sheldon (1977) 75 Cal.App.3d 364, 375, 142 Cal.Rptr. 119.)   Plaintiffs urge, however, that in view of the unusual procedural posture of this case, a heightened standard of review is appropriate.

The case law supports the proposition that, after a second jury has considered substantially similar evidence, and reached a substantially similar verdict, a second grant of a new trial will be given more careful scrutiny on appeal.   (Bayley v. Souza (1942) 55 Cal.App.2d 776, 779, 131 P.2d 584;  Whitfeld v. de Brincat (1939) 35 Cal.App.2d 476, 478–479, 96 P.2d 156;  see also Schonberg v. Perry (1966) 247 Cal.App.2d 436, 55 Cal.Rptr. 579;  Perry v. Fowler (1951) 102 Cal.App.2d 808, 229 P.2d 46.)   Heightened scrutiny is warranted by the very fact that successive juries have reached similar results, which suggests that retrial may be of little practical utility to the party seeking it, and by the basic principle that there must be an end to litigation.   There is additionally a tension between multiple grants of new trials by the court, and the constitutionally guaranteed right to trial by jury.  (Cal. Const., art. I, § 16.)

Here, the trial court ordered a new trial on two separate grounds:  insufficiency of the evidence to justify the verdict, and excessive damages.

2. Insufficient Evidence to Justify Verdict.

The trial court prepared a three-and-one-half page memorandum in support of its ruling on the new trial motion.   First, the court stated the facts briefly, noting, inter alia, that the decedent's “blood alcohol at the time of the accident was above the .10% presumptive level,” and that “the blood alcohol level of Mr. Arias [driver of the other vehicle] also was above the .10% presumptive level.”   The court reviewed the jury's findings as to relative proportion of fault:  the state at 85 percent, the decedent at 5 percent, and Arias at 10 percent.   The memorandum then stated:

“The court has weighed the evidence and is convinced from the entire record, including reasonable inferences therefrom, that the jury clearly should have reached a different verdict.

“It is clear that Mr. Weddle, the decedent, was more than 5% at fault.   It is reasonable to assume that he could have driven the car to the service station [at the end of the off-ramp] or at least, after parking, could have walked to the same for assistance.   He also could have driven the car further from the traveled portion of the offramp even though he would have been off the paved portion of the shoulder.   Instead the deceased, undoubtedly due to his intoxication, did not act as a reasonably prudent person would under the circumstances then in existence.   This was evidenced by the fact that he first turned off the lights of his car.   Secondly, he tried to change the left rear tire when it would be obvious to a reasonably prudent person that he would have to do so while standing in the traveled portion of the offramp in the dark.   In other words, the deceased, with a total disregard for his own safety, placed himself in an extremely dangerous position.   It is obvious that he was much more than 5% at fault.   Further, Mr. Arias' ability to drive was so impaired by alcohol that he was unable to pass by the decedent's car, although there was ample room to do so, without striking it.   This gentleman was obviously guilty of vehicular manslaughter and his negligence was far greater than the 10% attributed to him by the jury.

“By comparison, the state's fault, if any, is slight and the jury's finding in this regard was excessive to say the least.”

The plaintiffs contend that the court erred in four respects in finding the evidence insufficient to support the verdict.

First, it is argued that the court erred in considering the “presumptive levels” of blood alcohol for the decedent and Arias, and in considering that Arias was “obviously guilty of vehicular manslaughter.”   These factors, plaintiffs assert, have no proper place in a civil lawsuit.

The state responds that the effect of alcohol on the men was clearly relevant to the percentage of negligence to be attributed to each, and points out that the jury was instructed that it is unlawful for any person under the influence of alcohol to drive a vehicle (BAJI 5.40), that intoxication is relevant to the negligence of other persons involved in an accident (BAJI 5.42), and that violation of a statute which proximately causes injury gives rise to a rebuttable presumption of negligence per se (BAJI 3.45, modified).

 The use note to BAJI 5.40 is clear that “it is error in a civil case to instruct as to the criminal responsibility of an intoxicated driver.”   In this case, the jury was not instructed as to “presumptive levels” of blood alcohol, or on the elements of vehicular manslaughter.   On a motion for a new trial, the role of the court is to assess whether the “jury clearly should have reached a different verdict.”  (Code Civ.Proc., § 657, emphasis supplied.)   In considering factors which were, properly, not submitted to the jury, the court exceeded its statutory authority.  (Accord, Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, 882, 166 Cal.Rptr. 797.)

 Second, the plaintiffs argue that the trial court's treatment of decedent's conduct in stopping on the shoulder and attempting to change his tire shows that the court did not carefully and dispassionately weigh all the evidence.

Specifically, the plaintiffs maintain that the evidence showed that decedent's car would go no further, so he could not have been remiss in failing to drive it to the service station;  that the danger of changing the tire could have appeared minimal in view of the light traffic at the time;  that there was no indication in the record that even if decedent had gone to the service station, it would have been able to provide any help;  and that there is a conflict in expert opinion as to whether, under such circumstances, leaving one's car lights on will warn passing drivers away, or actually “attract” them to the disabled vehicle.

The state persuasively responds to these arguments by underscoring that they represent a disagreement with the inferences drawn from the evidence by the trial court, but not a demonstration that such inferences are entirely unsupported by the record.  Code of Civil Procedure section 657 explicitly empowers the trial court to draw “reasonable inferences” from the “entire record”;  we think it has done so here.

Third, plaintiffs assert that the trial court's treatment of Arias' fault is without support in the record.   It is stressed that the uncontradicted evidence shows that Arias was driving at a lawful speed, and was within the travel lane at the time of the accident, just as a prudent motorist would be.   It is argued that there is no direct evidence linking Arias' blood alcohol level with his failure to see the decedent in time to avoid striking him.

However, there was expert testimony at trial to the effect that persons at Arias' stipulated blood alcohol level are “definitely impaired.”   Further, the travel lane left ample room to maneuver.   Apart from its references to “presumptive levels” of blood alcohol and criminal guilt, we think the trial court's finding that Arias' negligence exceeded the 10 percent attributed to him by the jury is a reasonable inference from the entire record.

 Finally, the plaintiffs assert that the court's conclusory statement that “[b]y comparison, the state's fault, if any, is slight and the jury's finding in this regard was excessive, to say the least,” is an inadequate specification of reasons as a matter of law.

The plaintiffs are correct.  Code of Civil Procedure section 657 provides, in part:  “When a new trial is granted ․ the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated․  [¶] [O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict ․ or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified ․”  The California Supreme Court has interpreted this language to mean that a specification of reasons phrased “ ‘in terms of such “ultimate facts” as defendant's freedom from negligence ․ is inadequate․’ ”  (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 697, 106 Cal.Rptr. 1, 505 P.2d 193.)   The court must identify the portions of the record which provide material facts supporting its conclusions as to ultimate facts.   In this case, with regard to the percentage of fault (“if any”) to be attributed to the state, the court has not done so.

Thus, the first and fourth grounds on which the plaintiffs attack the trial court's conclusion that a new trial is warranted on the basis of insufficiency of evidence to justify the verdict have merit;  the second and third do not.

“[O]n appeal from an order granting a new trial upon the ground of the insufficiency of the evidence ․, such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.”  (Code Civ.Proc., § 657, emphasis added.)   In this case, the trial court's conclusions that the jury should have allocated a greater proportion of fault to Arias and the decedent had, apart from the errors the court made, substantial bases in the record.

3. Excessive Damages.

The second ground on which the trial court ordered a new trial was that of excessive damages.   The court's memorandum stated:

 “The court has also considered the evidence as to decedent's life expectancy, work expectancy, and his past earnings and has also weighed the conflicting testimony of the economists.   As a result of judging the credibility of the experts and weighing their testimony, it is the court's opinion that the damages awarded in each cause of action are excessive.”

This is an inadequate specification of reasons under Code of Civil Procedure section 657.   As plaintiffs underscore, it amounts to a mere recital of what the court did, as opposed to an explication of its reasons.  (See Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 60–63, 107 Cal.Rptr. 45, 507 P.2d 653.)   Why were the damages excessive?   Did the court believe that decedent would not have lived out his life expectancy, or that he would not work the normal number of years?   Did the court find plaintiffs' expert had made erroneous statistical assumptions?   What portions of the testimony did the court disbelieve?   Or did the court find plaintiffs' expert to lack all credibility?   We are in the dark.

The state relies on Sanchez v. Hasencamp (1980) 107 Cal.App.3d 935, 166 Cal.Rptr. 118, holding a roughly comparable specification of reasons to be adequate.   We are not bound by that decision and, in light of the more careful scrutiny of new trial orders which is appropriate after a second trial (see discussion, supra ), decline to follow it in this case.

4. Limited New Trial.

 Since we have concluded that the order of a new trial on the ground of excessive damages cannot stand, the question arises whether the court's conclusion that the jury should have allocated a greater proportion of fault to Arias and the decedent supports a new trial as to all issues, or is only sufficient as a matter of law to support a limited retrial on the issue of apportionment of fault between the parties.

This case has been tried twice, with substantially similar results.   At each trial, the state was found to be negligent.   As the trial court concluded, and as we have concluded, the state is not immunized as a matter of law from the consequences of its negligence.  “The evidence of negligence is so clear as to render it improper to submit that issue again to a court or jury.”  (Ona v. Reachi (1951) 105 Cal.App.2d 758, 763, 233 P.2d 949.)   In view of these facts, and the heightened scrutiny indicated for review of a new trial order after a second trial with substantially similar results as the first, we hold that the new trial must be limited to the issue of apportionment of fault.

The situation in this case is to be distinguished from those in O'Kelly v. Willig Freight Lines (1977) 66 Cal.App.3d 578, 136 Cal.Rptr. 171 and Richard v. Scott (1978) 79 Cal.App.3d 57, 144 Cal.Rptr. 672.   In O'Kelly, the trial court ordered a new trial but stated reasons which supported a new trial only on the issue of apportionment of damages.   The appellate court interpreted the ambiguous new trial order as limited to the issue of apportionment.   In Richard, the trial court made no reference in its order or statement of reasons to “apportionment” of negligence.   Under those circumstances this court declined to modify the new trial order in the guise of interpretation.

In the present case we are not interpreting an ambiguous order.   The trial court discussed apportionment of negligence at some length and fully stated its reasons for granting a new trial on that ground.   The trial court also attempted to state its reasons for granting a new trial on the ground of excessive damages.   Those reasons are legally insufficient to support a new trial.  (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 90 Cal.Rptr. 592, 475 P.2d 864.)   Since the reasons stated in support of the new trial on the issue of apportionment are unrelated to the issue of total damages, the failure of the trial court to state sufficient reasons to support a new trial on total damages should not be permitted to defeat the court's amply supported determination that a new trial is warranted on the issue of apportionment.

 There is language in Richard v. Scott which may be read to indicate that an appellate court is without power to modify a new trial order to grant a limited new trial unless a request for a limited new trial has first been made to the trial court.  (79 Cal.App.3d at pp. 67, 69, and fn. 4, 144 Cal.Rptr. 672.)   After careful consideration, we have determined that this language is too broad.  Code of Civil Procedure section 43 states that courts of appeal may “affirm, reverse or modify any judgment or order appealed from ․”  Thus, on an appeal from an order granting a new trial, the appellate court has the power to modify, and, in our opinion, should do so when, as here, the specifications of reasons fail to comply with section 657 of the Code of Civil Procedure as to one ground, but support a limited new trial on an issue that has been separately examined by the trial judge and may fairly and conveniently be severed.   To the extent that Richard v. Scott suggests that an appellate court is without power to modify an order granting a new trial, it is disapproved.

III. STATE'S CROSS–APPEAL FROM REINSTATED JUDGMENT

1. Design Immunity.

Since our modification of the trial court's new trial order in effect reinstates portions of the previous judgment for the plaintiffs, it is appropriate to address the state's cross-appeal.

The state has cross-appealed on four grounds.   The first is that the court erred in rejecting the design immunity defense.   As we explained in our discussion of the trial court's denial of the motion for judgment notwithstanding the verdict, the state did not establish the elements to support design immunity in this case.

2. Failure to Make Findings on Design Immunity.

 Next, the state contends the court reversibly erred in failing to make findings on the design immunity issue.   As we noted above, to establish the affirmative defense of design immunity, the public entity must plead and prove three elements:  a causal relationship between the design and the accident, approval in advance by an official or body exercising discretionary authority, and substantial evidence of the reasonableness of the design.  (Mozetti v. City of Brisbane, supra, 67 Cal.App.3d at p. 574, 136 Cal.Rptr. 751.)   While design immunity is by statute expressly made an issue for the trial or appellate court (Gov.Code, § 830.6), and therefore sometimes characterized as a “legal” issue, it clearly presents mixed questions of law and fact.   As such, it is subject to the provisions of Code of Civil Procedure section 632, which provides that upon the trial of a question of fact by the court, findings are required when requested.

 The plaintiffs correctly point out that findings are only required on issues joined by the pleadings, where the court's decision results in a judgment.  (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 306, p. 3115, and cases cited therein.)   However, in this case design immunity was an issue raised by the pleadings, and the court's decision allowing the issue to go to the jury ultimately resulted in a judgment.   Thus, findings were required if timely requested.  (See Los Angeles Unified Sch. Dist. v. C.F. Bolster Co. (1978) 81 Cal.App.3d 906, 918, 146 Cal.Rptr. 789.)

 The state did not make a timely request for findings in written form, as the former version of California Rules of Court, rule 232(b), in effect at the time of trial, contemplated.   However, the record shows the state's counsel made a timely oral request for findings when the court announced its intended decision, and the court directed plaintiffs' counsel to prepare proposed findings at that time.   Plaintiffs' counsel failed to do so.   We hold that plaintiffs by their conduct waived any right to insist on strict adherence to the customary timetable.  (See City of San Marcos v. California Highway Com. (1976) 60 Cal.App.3d 383, 395, 131 Cal.Rptr. 804.)

 However, the trial court's failure to make findings on the design immunity issue was harmless error.  (Cal. Const., art. VI, § 13.)   This is so for two interrelated reasons.   First, as Government Code section 830.6 provides, the question of design immunity may be decided by a “trial or appellate court ․”  In this case, we have carefully reviewed the arguments and evidence, and as our prior discussion reveals, concluded that the state was not entitled to design immunity.   Our discussion of design immunity fairly satisfies the purpose of findings, which is to allow unsuccessful litigants to learn the bases of decisions adverse to them.  (See Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 567, 138 Cal.Rptr. 575;  Ball v. American Trial Lawyers Assn. (1971) 14 Cal.App.3d 289, 307, 92 Cal.Rptr. 228;  DeArmond v. Southern Pacific Co. (1967) 253 Cal.App.2d 648, 658, 61 Cal.Rptr. 844.)

Second, “it is well recognized that a failure to find is ․ harmless, when under the facts of the case the finding necessarily would have been adverse to the appellant [citations].”  (Div. of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 278, 137 Cal.Rptr. 855.)   As our prior discussion also indicates, any findings on design immunity would necessarily have been adverse to the state.

3. Dangerous Condition.

 The state's third argument on this cross-appeal is that the shoulder of the Madison off-ramp did not constitute a dangerous condition of public property as a matter of law.

Government Code section 830, subdivision (a) defines a “dangerous condition” as “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.”   This court has stated that “[w]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.”  (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30, 90 Cal.Rptr. 541.)

As our previous discussion inferentially establishes, whether the off-ramp was in a dangerous condition at the time of the accident is a question on which reasonable minds could differ.   The issue properly went to the jury.

4. Evidence of Lack of Prior Accidents Excluded.

 At trial the state sought to introduce evidence of a lack of prior accidents at the Madison off-ramp site, to show that the property was not in a dangerous condition, and that the state had no knowledge of a dangerous condition.   It is urged that the refusal of the trial court to admit such evidence was error, relying on Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 77 Cal.Rptr. 914, Jefferson, California Evidence Benchbook (1972) section 21.8, page 283, and Evidence Code section 351, which makes all relevant evidence admissible.

However, these sources by no means unambiguously indicate that the trial court erred.  Beauchamp states that evidence of lack of prior accidents is to be excluded “if there would be confusion of collateral issues ․”  (273 Cal.App.2d at p. 38, 77 Cal.Rptr. 914;  accord, Jefferson, supra, at p. 285;  see Evid.Code, § 352.)   The plaintiffs argued that just such confusion would result;  had the state's “safety history” evidence been admitted, it would have been necessary to go into whether during the period in question, any cars had been observed parked on this particular ramp, without lights on, and if so, under what traffic conditions, and whether any close calls had been observed.   All this would have become relevant and time-consuming, with little likelihood that evidence of solid value would have been forthcoming.   Trial courts have broad discretion in excluding evidence;  under the circumstances, we find no clear abuse.

Were we to conclude otherwise, we would still not reverse, since we do not think the effect of exclusion could have conceivably resulted in the requisite “miscarriage of justice.”  (Evid.Code, § 354.)

DISPOSITION

The order granting a second new trial to the state is modified;  the new trial shall be limited solely to the issue of apportionment of fault.⁴

A petition for a rehearing was denied on May 6, 1983, and the following opinion was then rendered:

The state makes four arguments in its petition for rehearing.

The state's first argument is that one of the three elements of the design immunity defense, discretionary approval, was established by this court's prior opinion in this case, and that the “law of the case” doctrine mandates an identical conclusion on this appeal.

The California Supreme Court has described the doctrine as follows:  “As stated by Witkin, ‘the doctine of “law of the case” deals with the effect of the first appellate decision on the subsequent retrial or appeal:  The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’  (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 633, p. 4552, original italics;  see Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049.)   But, the ‘discussion or determination of a point not necessary to the disposition of a question that is decisive of the appeal is generally [regarded] as obiter dictum and not as the law of the case.’  (Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d 469, 474, 304 P.2d 7.)  ‘It is fundamental that the point relied upon as law of the case must have been necessarily involved in the case.’  (Witkin, supra, § 647, p. 4564, original italics.)”  (Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, 102 Cal.Rptr. 795, 498 P.2d 1043.)

 Our discussion of the discretionary approval element of the design immunity defense in Weddle I was dictum.   In that opinion we reversed the trial court's entry of judgment notwithstanding the verdict because the state had failed to adduce substantial evidence of reasonableness, the third element of the defense.   Our treatment of discretionary approval was not necessary to our resolution of the earlier appeal, and is not the law of the case.

 The state next argues that our opinion improperly “second-guesses” “the cogent reasons for the striping plan as expressed by a qualified engineer.”   This is a reiteration of the argument that if an expert witness testifies that a design is reasonable, it is therefore reasonable.

The state also asserts that our statement “the state's experts testified that most motorists tend to hug the left side of the travel way” (at p. 827) is in error because none of the state's engineering experts so testified, although the state's “human factors' ” expert did say something quite similar.   However the transcript shows that one of the state's engineering experts, Mr. Jack Derby, was asked on direct examination, “And had you made observations as to how people drive down freeways and ramps where they position their cars in relation to the center line of the lane?   A:  Yes.   We spent many hours watching traffic both daytime and at night.   Q:  And on which side of a ramp did most people drive, sir?   A:  Our observations were that people tend to drive more to the left side of a traffic lane than down the center.”

The third argument made by the state in its petition is that the test the opinion employed “for the adequacy of specifications of reasons for the ground of excessive damages is too exacting.”   The state asserts the proper test is found in an opinion of the Second District, Kolar v. County of Los Angeles (1976) 54 Cal.App.3d 873, 127 Cal.Rptr. 15.   Why this decision, rather than the Supreme Court cases relied on in our opinion, establishes the proper test, is not explained by the state.   The language used in that case is arguably inconsistent with that found in Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 60–63, 107 Cal.Rptr. 45, 507 P.2d 653, and in any event the specification of reasons found adequate in Kolar was considerably more detailed than that before us in this case.  (54 Cal.App.3d at p. 877, fn. 3, 127 Cal.Rptr. 15.)

The state's argument on this point also ignores that we found a heightened scrutiny of new trial orders to be warranted after a second trial with substantially similar results as the first.

The state's final argument is that our modification of the new trial order “is an abuse of discretion and unfair to the state.”   The state points out that our decision conflicts with our prior decision in Richard v. Scott (1978) 79 Cal.App.3d 57, 144 Cal.Rptr. 672, which we disapproved in this case.   The state also asserts our decision conflicts with a First District opinion, Baxter v. Phillips (1970) 4 Cal.App.3d 610, 84 Cal.Rptr. 609, a case we were aware of but did not cite in our opinion.

Baxter is clearly distinguishable.   There, the court found that the evidence on the disputed issue was not “so clear as to render it improper to submit that issue again to a court or jury.”  (See 4 Cal.App.3d at p. 617, 84 Cal.Rptr. 609.)   In this case, we found precisely the opposite on the issue of negligence.  (At p. 831.)   Aside from this distinction, Baxter v. Phillips does recognize the power of an appellate court to modify a new trial order.   (See 4 Cal.App.3d at pp. 617–618, 84 Cal.Rptr. 609.)

FOOTNOTES

1.   Neither the state's counsel nor the trial judge expressly labeled the motion as one for a directed verdict;  but coming after each side had rested but before the jury began deliberation, with the effect of establishing a partial defense if successful, the motion was a motion for a partial directed verdict.  (See 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, §§ 366–368, pp. 3162–3164.)

2.   Government Code section 830.6 provides in pertinent part:“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.   State officials were unaware of either federal manual at the time the striping plan was adopted.

4.   Although the jury will have to hear and weigh, anew, all of the evidence dealing with the conduct of the parties (including Arias), they may properly be told that they must find that each party was negligent in some degree, and that their sole function is to apportion the total fault.  (See O'Kelly v. Willig Freight Lines, supra, 66 Cal.App.3d 578, 583, 136 Cal.Rptr. 171.)

MORRIS, Presiding Justice.

KAUFMAN and RICKLES, JJ., concur.KAUFMAN and RICKLES, JJ., concur.