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Public Entities Risk Losing Design Immunity Where They Fail to Present Evidence Of Discretionary Approval Of A Design

Public Entities Risk Losing Design Immunity Where They Fail to Present Evidence Of Discretionary Approval Of A Design

In Martinez v. County of Ventura, 14 C.D.O.S. 3825, Second Appellate District, Division Six,  Civil No. B244776 (April 8, 2014), the California Court of Appeal reversed a jury verdict for the County of Ventura (“County”), holding that the County failed to prove its design immunity defense to a dangerous condition of public property action as a matter of law. 

Plaintiff sued the County after sustaining paraplegic injuries when his motorcycle struck an asphalt berm abutting a raised drain (the top-hat drain system) on a County-owned road. The drain system consisted of a heavy steel cover on three legs elevated eight to ten inches off the ground, with a sloped asphalt berm to channel water into the drain. Plaintiff alleged that the top-hat drain system constituted a dangerous condition of public property pursuant to California Government Code section 835. The jury agreed, but returned a defense verdict based on design immunity.

On appeal, the primary issue was whether the County sufficiently proved the first of three elements of design immunity – that the design of the top-hat drain system was approved prior to construction by someone exercising discretionary authority to give such approval.[1] The County offered evidence that the drain system had been in common use since 1990, and that the County's Road Maintenance Engineer, who was not licensed, "probably approved" the design.The County did not offer into evidence any engineering design plans of the top-hat drain system, nor did it proffer any scientific or engineering analysis of the system. A County employee testified that the system was a maintenance project for which formal plans were not prepared. 

In reversing the jury's verdict in favor of the County, the court held that: (1) the County failed to prove a design of the top-hat drain system existed that was capable of being approved; and (2) even if such a design existed, there was insufficient proof that it was approved by an individual with the requisite discretionary authority prior to construction. 

The County argued that the standard use of the top-hat drain system for 25 years was sufficient evidence of the existence of a design. The Second District disagreed, finding that because the County presented no evidence of a design at all, “there was no…design that anyone with authority to approve it could approve.” The fact that the top-hat drain system was a maintenance project for which formal plans are not prepared was irrelevant.

Even if the County had presented sufficient evidence of a design for the drain system, it failed to prove the requisite approval was given. The court pointed out that the purpose of the design immunity defense is to "prevent the discretionary decisions of government officers vested with authority to make those decisions from being second-guessed in litigation." By statute, the County Road Commissioner was vested with discretionary authority to approve the top-hat drain system. However, the County did not present any evidence that the County Road Commissioner approved the design before the drain system conversion in 1990, nor did the County present evidence that it ever delegated discretionary approval authority to any other County employee. The County Road Maintenance Engineer’s testimony that he “probably approved” the design, although unrebutted, was “equivocal at best.” Thus, the court found no discretionary decision was ever made. The court flatly rejected the County’s contention that the top-hat drain system’s consistent use for 25 years evidenced the necessary discretionary approval, explaining that “[r]ecognizing ‘implied’ discretionary approval would vitiate this requirement and provide public entities with a blanket release from liability that finds no support in section 830.6.”

This case highlights a public entity’s risk of losing a design immunity defense if it is unable to prove the requisite discretionary approval of the design at issue. Sufficiently explicit design plans are required, and if an entity delegates approval authority to an employee, the entity must be able to present evidence of such delegation and that the design was approved by that individual. Thus, a public entity should document: (1) its delegation of power to give discretionary design approvals; (2) the existence of design plans; and (3) the discretionary approval of those plans. The ability to present such evidence may prove to be the difference as to whether a public entity can establish the discretionary approval element of the design immunity defense – a powerful tool in a public entity’s arsenal.

[1] To prove the defense of design immunity, a public entity must establish three elements: (1) the entity’s discretionary approval of the plan or design prior to construction; (2) a causal relationship between the plan or design and the accident; and (3) reasonableness of the plan or design. (Cal. Govt. Code § 830.6.)  Failure to prove any of the requisite elements is fatal to the applicability of the defense.

For More Information, Please Contact:

Alexandra Atencio
Alexandra Atencio
Walnut Creek, CA