Public Entities: Design Immunity

Martinez v. County of Ventura, (Second District, April 8, 2014) 225 Cal.App.4th 364, 169 Cal.Rptr.3d 880, 14 Cal. Daily Op. Serv. 3825, 2014 Daily Journal D.A.R. 4418

A man who was rendered paraplegic when his motorcycle struck an asphalt berm abutting a raised drain on the shoulder of a county road, filed an action against the County.  The plaintiff contended that the defendant’s “top-hat drain system,” 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, constituted a dangerous condition of public property under Government Code  § 835. The County asserted a number of defenses, including design immunity under § 830.6, which provides that a public entity is not liable 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.”

A jury found that the drain system was a dangerous condition that caused the plaintiff’s injuries, but also found for the County on its design immunity claim and rendered a verdict for the defendant.  However, the court of appeal reversed, holding that the evidence was insufficient as a matter of law to support the jury’s finding of design immunity, and that the jury’s finding of a dangerous condition would be binding on retrial:

The County contends, based on Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 132 Cal.Rptr. 52 (Thomson ), that the absence of a formal engineering design does not defeat design immunity… Here, the evidence does not meet even the low standard set in Thomson. The County introduced no design at all for the top-hat drain, even something as simple as a shop drawing. The evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them. Whatever form the design is expressed in, it must be “sufficiently explicit to assure that it is understandable to the employee giving the approval.” … Because the County presented no evidence of any design, there was no evidence of a design that anyone with authority to approve it could approve.

Even if we were to conclude that there was sufficient evidence of a design for the top-hat drain system, plaintiffs contend that there was no evidence that any design was approved in advance of construction by someone exercising discretionary authority to give such approval on behalf of the County. This contention also has merit.

The County contends that Blair, as the County Maintenance Engineer, had discretionary authority to approve the top-hat design. The evidence does not support this contention. Blair did not testify that he had discretionary authority to approve the design and his testimony that he did approve the design was equivocal at best: he testified that, as the Road Maintenance Engineer at the time of the drain conversion, he “was involved probably with the approval of the installation, yes, sir.” The County provided no evidence that the Road Commissioner had delegated to Blair the discretionary authority to approve drain design, either directly or indirectly. Without such evidence, there was no evidence that Blair had the requisite discretionary authority.

The County contends that Blair’s testimony that he approved the design is substantial evidence of his discretionary authority because his testimony was unrebutted. The contention is meritless. The locus of a county’s discretionary approval authority is fixed by law and with reference to the County’s internal distribution of its powers. … The County cites no authority for the proposition that the testimony of a highway maintenance supervisor that he “approved” the design of the top-hat drain, even if the testimony is uncontradicted, is substantial evidence of the discretionary approval element of design immunity in the absence of evidence that such authority had been assigned to him.