A Critique on the Judicial Test for Loss of Design Immunity for Public Entities
I. Introduction
II. The Law of Design Immunity
III. Alvis v. County of Ventura
IV. Discussion of The Law of Design Immunity
V. Conclusion and Recommendation
I. Introduction
In California, public entities enjoy broad statutory protection for liability “for an injury caused by the plan or design of a construction of, or an improvement to, public property.”[1] This statutory protection exists where the plan or design was approved under the discretionary authority of the public entity, and there was substantial evidence supporting the reasonableness of the plan at the time of approval. Courts have held that the recommendation of only one consultant engineer may be sufficient to provide substantial evidence to support the reasonableness of the design.
Initially, California courts in several cases held that the public entities’ design immunity continues in perpetuity, even if the design proves to be dangerous in practice. California legislature later amended the statute to provide that the design immunity does not continue in perpetuity; but rather, it is lost if the plan proves to be dangerous in its actual operation, and after sufficient time for the public entity to obtain funds and carry out remedial work. The judicial test by California courts for the loss of design immunity further requires that the plan or design has become dangerous “because of a change in physical condition.”
The current judicial test in California for termination of design immunity is inadequate for two main reasons. First, it requires “changed physical conditions” in order to impose liability on the public entity. The courts’ reasoning for this requirement is that under “changed physical conditions,” a court would not be second guessing the discretionary authority of the public entity because it would be analyzing a factually different situation. This requirement of “changed physical condition,” however, fails to appreciate the reason why the legislature provided for the termination of the immunity: notice. As the requirement of “changed physical conditions” has little support in the statute or public policy, and is contrary to the legislature’s intent in terminating the design immunity, it should be eliminated.
Second, the court does not factor whether the public entity had any actual or constructive notice of the plan’s dangers in advance of approval. In other words, the current test appears to provide for immunity where the public entity approves a plan knowing of its dangers, or where the entity is reckless about the dangers of a to be approved plan. The issue of notice before approval of the plan, while not addressed by the statute, is parallel to the question of notice after the completion of the project and results of the plan in operation—which is addressed by statute. In the case of notice after the approval of a plan, the statute was amended to remove immunity after notice of dangers during the actual operation of the plan. Immunity should also be removed if the public entity has notice of the dangers of its plan prior to approving it, or is reckless as to those potential dangers.
The shortcomings of the current judicial test for loss of design immunity, and its detriments to the public, were best illustrated by Alvis, as further discussed in this paper. It is recommended, therefore, that the test for loss of design immunity be modified so as to remove the requirement of “changed physical condition.” The test should also provide that when, in advance of approval of a plan, the government entity has notice of the dangers of the plan, or is reckless with regards to them, a jury must decide whether the entity’s actions were reasonable. In deciding reasonableness of such actions, factors relating to the functions, limitations and obligations of public entities—as opposed to private enterprises—must also be considered. The test should also place a burden on the public entity to monitor the operation of the plan since, as in the landslide in Alvis, the public entity cannot reasonably wait for multiple failures to learn of the dangers of its approved plan.
II. The Law of Design Immunity
In 1963, California legislature enacted comprehensive legislation in order to address tort liability for public entities. The need for a comprehensive approach was felt especially after California Supreme Court in Corning held that the judicial doctrine of sovereign immunity would no longer protect public entities against tort claims.[2] California Supreme Court further limited tort immunity for discretionary acts of these entities in Lipman.[3] The legislation was created in response to such holdings and, in main part, by adopting California Law Revision Recommendations.[4] § 835 of California Government Code provides the default rule for liability of public entities.[5]
835. Conditions of liability
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 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.
Therefore, a public entity could be liable in tort except as specifically immunized by statute. One of the cases of immunity provided by statute is negligence in design under § 830.6.
830.6. Plan or design of, or improvement to, public property; remedial work; warnings
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. …
A public entity may, therefore, avoid liability under section 835 by raising the affirmative defense of design immunity, and by establishing the following elements:[6]
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A causal relationship between the plan or design and the accident;
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Discretionary approval of the plan or design prior to construction; and
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Substantial evidence supporting the reasonableness of the plan or design.
In raising this defense, the “[d]efendant has the burden of pleading and proving the defense of design immunity and each of the essential elements of it.”[7] The first two elements of the defense are decided by a jury, whereas the third element is decided by the trial court.[8] Defense of design immunity, however, does not continue in perpetuity.[9] In 1973, California legislature amended § 830.6 and added the following sentences:
Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.
Case law establishes that, in order to demonstrate loss of design immunity, a plaintiff must prove three elements:[10]
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The plan or design has become dangerous because of a change in physical condition;
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The public entity had actual or constructive notice of the dangerous condition thus created; and
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The public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warning.
Where triable issues of material fact exist, the plaintiff is entitled to a jury trial as to all issues involved in loss of design immunity.[11] This paper addresses the issues that arise out of this judicial test for loss of design immunity and its shortcomings, as best illustrated by the facts in Alvis.[12] The paper then discusses an alternative to the current test.
III. Alvis v. County of Ventura
Facts of Alvis:
On January 10, 2005, a large landslide occurred in La Conchita, killing ten people and destroying 16 homes.[13] La Conchita is an unincorporated area of County of Ventura (“County”) which had previously experienced other landslides, specifically in 1889, 1909, and, more recently, 1995.[14] Alvis was a tort claim for damages brought by victims of the 2005 landslide and their heirs and families against the County. The events relating to Alvis date back to the 1995 landslide.
The 1995 slide was a 600,000 cubic yards of earth movement from the top of a bluff adjacent to a County road.[15] The debris buried several houses in La Conchita and 250 linear feet of the County road.[16] This debris formed the new toe of the landslide area.[17] Immediately after the slide, the County considered, and rejected, the idea of removing the debris to open the road. In fact, it prevailed in a lawsuit brought by residents to compel the County to remove the debris.[18] The debris did not block access to any residence that had not been destroyed by the slide.[19] In July 1995, Butch Britt, the County’s Deputy Director of Transportation at the time, responded to the idea of removing the debris by “Why? This street is not critical. A lot of risk for minimal gain.”[20] Britt later in 1996 had warned that “any attempt to alter the La Conchita landslide without a comprehensive engineering and geological investigation … would be unwise.”[21] Nevertheless, the County decided to embark on the debris removal once it learned that FEMA would pay for it.[22] The County appointed William Britt, a civil engineer in its employ, to oversee the project.[23] FEMA funding, however, was limited and came with numerous constrains.
The FEMA category under which County obtained funding was for emergency measures.[24] These measures are intended to be “temporary” responses to emergency situations.[25] FEMA limited the study to debris removal from the road, meaning that the County could not use the funds to determine whether the cliff in general could be stabilized.[26] In addressing this “temporary” limitation, the County’s position was that, “[t]he term ‘temporary’ is simply a designation mandated by FEMA in approving funding for the wall project. Title 42 USC and 44 CFR, implemented by FEMA … require that emergency debris removal, recovery from landslides, and emergency protective measures must be ‘temporary’ in nature, and federal funding cannot be used to stabilize the landslide that produced the debris.”[27] According to the Plaintiffs, “[n]o one connected to the project knew what ‘temporary’ meant. When asked if he had any understanding of how long the wall was expected to last, Mr. Britt testified: ‘I don’t think anybody did.’ [Citation Omitted]. Hooke testified that he ‘asked Butch [Britt], and he said that that term came from Z-K [County’s Consultant],’ but Britt ‘didn’t know’ what it meant.”[28] Besides the technical limitations, FEMA also imposed scheduling deadlines, as discussed later.
In July 1998, the County retained Zeiser Kling Consultants, Inc. (“Z-K”) to conduct the study funded by FEMA relating to the debris removal.[29] The County made this appointment at the exclusion of James O’Tousa of RJR Consulting (“RJR”), who had been studying the slide area since 1995 as the County’s primary consultant on issues relating to the slide.[30] O’Tousa’s reports are cited numerously in the USGS report relating to the La Conchita landslide area.[31] Mr. O’Tousa later turned out to be the main critique of the wall design. In October 1998, Z-K issued its report, containing recommendations for the debris removal. The report noted that “[i]t is our opinion that the landslide debris can be removed from Vista Del Rincon Road without adversely affecting the stability of the La Conchita landslide as it currently exists.”[32] In April 1999, FEMA approved the plan for the design of the wall using pile lagging, which was the cheapest of the three proposed alternatives, setting a deadline of September 30, 1999 for completion of the plans and bidding process.[33] This was a tight schedule, placing significant pressure on the County to complete the process. For example, Britt wrote in a letter to Z-K in July 1999: “As you are aware, we are under a tight deadline imposed by FEMA for this project and need to get the project ready to advertise quickly.”[34] As another example, Glen Derrosset, a County project manager, wrote that there was a “lot of pressure from FEMA to complete the project in a limited amount of time.”[35]
In October, 1999, a County Board member accidentally met O’Tousa and asked him to review the Z-K report.[36] A few days later, O’Tousa sent a four page memo to Britt identifying numerous areas of concern.[37] “The reports do not provide any rationale for the engineering design issues used to provide recommendations for the project. … The report should also discuss the ramifications of the project should debris flows or subsequent landslides occur. … Will this project place any properties in La Conchita at a higher level of hazard than is existing now?”[38] In its response to the letter, Z-K, the consultant of record, wrote, “[t]he pile lagging wall is a temporary structure that is not intended to affect (either increasing nor decreasing) the stability of the active La Conchita Landslide, to contain/control drainage, or to contain/control mud and debris flow. … Since lagged solder pile walls typically contain spaces for water to travel through, drained conditions were assumed.”[39]
These responses were not satisfactory to O’Tousa and RJR. In its follow up letter to the County, RJR noted, “[i]t is the opinion of RJR that the [Zeiser Kling] report lacks sufficient design and consideration to be approved at this time. … How can this wall be considered temporary? … RJR is concerned that the retaining wall will dam up debris. … The wall may allow for the buildup of debris which would dam up and may generate a larger event than if the toe of the slide was left in its present configuration and allowed to relieve stress by spreading …The wall may and will alter natural drainage.”[40] In another follow up letter, RJR further noted: “It is the opinion of RJR that Z-K did not adequately explain the responses or provide any requested technical data to substantiate their conclusions. At this time, without proper justification of design criteria, adequate subsurface exploration, and laboratory testing, RJR cannot agree with the design of the project. … Z-K simply cannot just state that the design values are suitable based on their opinion, they need to provide supporting engineering calculations utilizing accepted engineering methods. In addition, Z-K indicates the project will not increase or decrease the stability of [the] slide. There is no basis for this statement and [it] lacks technical support. … Please define what is meant by ‘Temporary.’ When will the wall be removed or fail? Given this, Z-K should reconsider their concept of temporary. … Will the wall change existing drainage patterns and stability, i.e., could landslides be diverted way from the project site that would otherwise have taken a different path? … [N]o construction activities should proceed until these issues have been clarified.”[41]
In November 1999, the County retained consultant Fugro West, Inc., (“Fugro”) to review the documents for the project, including the exchanges between RJR and Z-K.[42] In its conclusions, Fugro raised the issue that no lateral forces were considered in the design of the wall, to which Z-K responded that it has assumed that “landslide debris behind the wall would drain freely through the spaces between the timber lagging.”[43] Also, in response to apparent attempts by County employees to downplay the concerns raised by Fugro, Fugro wrote to the County: “The wording in [the] memo regarding our conclusions pertaining to whether the only significant issues were the soldier pile embedment depth and lateral pressure calculations is misleading, as is the comment that the wall is designed conservatively. … We understood the County’s position to be that the wall design was to be based on the assumption that landslide movements would not be a design issue … Whether that assumption is appropriate or not is the County’s decision … Further, your comment pertaining to ‘cosmetic’ issues is misleading. The County’s assessment of what may be cosmetic issues is not our assessment. From our discussion, we understood that the County is assuming the risk pertaining to issues such as rotation of the top of the wall, impacts from lateral loads (from landslide debris) on the guardrail, or debris coming over the wall. We are not of the opinion that such issues are cosmetic; they could be very significant.”[44]
Fugro issued its final letter in April 2000, noting, “Z-K has assumed ‘drained’ conditions apply and that hydrostatic pressures or seepage forces will not impact the wall. This assumption may be somewhat unconservative given the soil types that are present behind the wall. … Z-K … conclude[s] that the volume of debris that will be removed to construct the wall is too small to have a material impact on the overall landslide stability. However, an argument could also be made that any removal of slide debris could have a negative impact on the safety factor of the slope. If a more thorough assessment of whether construction of the wall will have a net negative or positive impact on landslide stability is desired, then a quantitative evaluation should be performed.”[45] The quantitative evaluation was never performed.[46]
The County board of supervisors approved the design of the wall on October 19, 1999, after a short presentation of items by Britt, and without knowledge of any of the correspondence submitted by RJR or Fugro.[47] Over the objections by RJR, the wall construction began in May 2000 and was completed in January 2001.[48] The wall was constructed as designed. It was approximately 250 ft in length and between 3 feet and 18 feet in height.[49] On January 10, 2005, four years after the completion of the wall, a large landslide occurred at La Conchita.[50] Britt, the County engineer, declared that the debris flow was diverted toward La Conchita by a channel created by the 1995 landslide and by topographical features, and not by the wall.[51] Plaintiffs brought an action under sections 830 and 835 of California Government code for dangerous condition of public property.[52] Their complaint alleged, “[a]mong other things, the wall altered and diverted the course of the mud, soil, rocks and other debris resulting from the 2005 landslide, causing the landslide to strike and kill the persons named in paragraph 41. Before the wall was constructed, the County and Does 51-100 had actual and/or constructive knowledge that the wall would constitute a dangerous condition of public property for reasons which include, without limitation, the fact that these defendants were advised by at least one of their consultants that the design of the wall failed to take into account its effect in the event of the landslide or mudslide.”[53] Plaintiffs’ expert, Dr. Singh, declared, in part: “The real problem was that there was no adequate subsurface drainage provided behind the wall. The clayey soil behind the wall became saturated, exerted tremendous forces against the wall and ultimately contributed to the wall’s collapse.”[54] In another place, the Court quoted Dr. Singh as declaring, “As the consultants feared, the soil types made it extremely likely that the clayey soils would clog the cracks between the timbers, prevent drainage, and cause a build-up behind the wall of saturated earth and debris. This build-up creates the very ‘hydrostatic pressures or seepage forces’ against the wall that concerned Fugro…. This is the dam effect that concerned Mr. O’Tousa.”[55] “Singh declared that the saturated soil behind the wall both created the slide and diverted the debris flow.”[56] Dr. Singh further opined that a reasonable inspection of the wall would have revealed the fact that it was not draining properly.[57] To counter testimony of Dr. Singh, County introduced testimony of Dr. David Sykora.[58] Dr. Sykora pointed out that Dr. Singh’s declaration contradicted in part the report that he had submitted to State Farm Insurance, which was not under oath.[59] He further opined that Dr. Singh’s reasoning is internally inconsistent since “if the failure initiated at the wall, the wall would not be standing to deflect the debris.”[60] While the Court discredited Dr. Singh’s testimony, it expressly noted that even if the testimony was completely credited, there would be no change in the results.[61]
Later, United States Geological Survey produced a report about the La Conchita landslide area, and the 2005 landslide in particular.[62] The report benefited from a live video, which accidentally captured the landslide, and visits by experts only a few hours after the landslide. The report notes the following:
Such a failure scenario, involving a significant amount of dry material that fully mobilized on a saturated layer, indicates that most of the rain that fell on the surface of the 1995 deposit did not infiltrate but drained off the surface. The rising ground–water level within the 1995 deposit would thus have resulted from deeper recharge from rainfall infiltration upslope. Figure 8 shows an aerial photograph of La Conchita taken in September 2004. The lush, green vegetation visible in the southeastern (lower right in photograph) part of the 1995 deposit clearly indicates that drainage on and within the 1995 landslide deposit concentrated water in the part of the mass that failed in 2005. At the time of our visit (January 14, 2005) water was still issuing from the base of the main landslide scarp and was ponding at several locations on the 2005 deposit (fig. 9).
… The movement of the same landslide mass in 1995 and 2005 by two very different mechanisms, and with markedly different results, is difficult to explain. The 1995 landslide was a deep, coherent slump—earth flow that deformed plastically and moved slowly enough that people could get out of its way. The 2005 landslide was a shallower remobilization of the very same material into a rapid, highly fluid debris flow that buried 10 people. Although it is not uncommon for subsidiary debris flows to occur from the toes or scarps of existing landslides (Morton and Campbell, 1989), that is not what happened in 2005. This was a wholesale remobilization of a significant portion of the 1995 deposit. How and why the same material failed twice in 10 years by fundamentally different mechanisms certainly will be the object of future research, and it is much too complex to analyze in detail at this time.
Trial and Appeal Courts Dismiss Plaintiffs’ Claim, Relying on Design Immunity
The trial court ruled in favor of the defendant, County of Ventura, in a summary judgment ruling. The Court of Appeal, in the opinion discussed below, affirmed the judgment, with costs awarded to the respondent, County of Ventura.
The Court first raised issues regarding the complaint filed by the plaintiffs and what it in fact alleged. Despite these issues, the Court noted that “in any event, even if we treat the complaint as alleging the wall was a substantial factor in causing the slide, as the following discussion will show, Alvis cannot prevail.”[63] The Court then discussed the three elements necessary to establish the defense of design immunity and found that County of Ventura had successfully established all three elements.
Causal Relationship:
“The first question is whether there is undisputed evidence that the accident was caused by a design defect, and not some other cause.”[64] The Court dismissed the idea that installing drainage systems on the wall after it was constructed, even if inspection of the wall in operation would have revealed drainage issues, constitute maintenance issues.[65] They are, the Court noted, design factors.[66] The Court also dismissed the claim that County’s failure to warn of the known danger was an independent contributing cause.[67] “The Second amended complaint alleges that the County was warned by at least one of its experts that the design failed to take into account the wall’s effect in the event of a landslide. The expert alluded to is obviously O’Tousa. But O’Tousa’s memorandum did not warn of specific defects, it raised questions for Britt to consider. Alvis points out one of the issues that O’Tousa’s memorandum states should be clarified is whether ‘the wall [would] change existing patterns and stability, i.e., could landslides be diverted away from the project site that would otherwise taken a different path?’ But it is uncontested that Britt considered that issue. He determined the landslide would occur in an existing channel, and that the wall would have no substantial effect on its path. It would be difficult for the County to devise a meaningful warning from O’Tousa’s suggestions that Britt consider issues which Birtt has in fact considered.”[68] Therefore, the Court found that County had prevailed on the first element of design immunity.[69]
Discretionary Approval:
The Court found that the County board of supervisors did exercise its discretion in approving the project.[70] The Court dismissed objections by the plaintiffs that the exercise of discretion must be informed, meaning that the board should have been informed of the objections and issues raised by RJR.[71] The Court noted that “section 830.6 does not state the approval must be knowing or informed. A court may not rewrite a statute to make it conform to a presumed intent that is not expressed.”[72] In reaching this conclusion, the Court mentioned that the County is “entitled to rely on the recommendations of its staff professionals in making decisions on such technical matters.”[73]
Substantial Evidence of Reasonableness:
“The final element of design immunity is that there must be substantial evidence supporting the reasonableness of the plan or design. Section 830.6 makes the resolution of this issue a matter of law for the trial or appellate court.”[74] The Court held that there was ample evidence to support the reasonableness of the design.[75] “The plans bear the professional stamps of a geotechnical engineer and a civil engineer from Z-K. The plans were approved by Britt, a registered civil engineer.”[76] The Court noted that even if there are dissenting voices in the design process, and even if the evidence of reasonableness is contradicted, section 830.6 still provides immunity.[77]
Changed Physical Conditions:
The Court dismissed the claim that any of the conditions alleged by the plaintiffs constituted changed physical conditions for the purposes of design immunity.[78] Plaintiffs claimed that the changed physical condition was that “over time, soil clogged the wall causing water to accumulate behind it.”[79] In rejecting that contention, the Court noted that Z-K and Britt had considered drainage issues and decided weep holes and internal drainage systems were not required.[80] These features were the features that Dr. Singh had declared should have been added to the wall.[81] Thus, there was not a “changed physical condition” not considered in advance by the County.[82]
Conclusion:
The Court held that the County had successfully proved all three elements of design immunity. Furthermore, plaintiffs had failed to raise any issue of material fact as to whether the County had lost its design immunity due to changed physical conditions.[83] Therefore, the Court of Appeal affirmed the summary judgment in favor of the County, with costs awarded to the respondent County of Ventura.[84]
IV. Discussion
Purpose of Design Immunity:
“The rationale for design immunity is to prevent a jury from second guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. … To permit reexamination in tort litigation of particular discretionary decision where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.”[85]
Law Revision Commission comments to section 830.6 clarifies that the immunity provided by this section is intended to be similar to the immunity that has been granted in New York through judicial decision in Weiss.[86] That case also articulates a similar purpose for design immunity: “[t]he rule is well settled that where power is conferred on public officers or a municipal corporation to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained.”[87] “Courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits; something more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public. … We are of the opinion that the traditional reliance on a jury verdict to assess fault and general tort liability is misplaced where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury.”[88]
Design Immunity Was Not Intended to Continue in Perpetuity
As originally enacted in 1963, section 830.6 did not contain any provision relating to when or how the immunity would be terminated. California Supreme Court in Cabell[89] and Becker[90] interpreted this absence to mean that design immunity would continue in perpetuity, regardless of any subsequent events or changes in conditions.[91] In Cabell, the court held that the State immunity persisted for the design of a glass door that was installed and maintained according to state specifications, but that had shattered on three previous occasions causing personal injury.[92] The court reached a similar conclusion in Becker, where a highway intersection designed in 1927, when “they also had horses and buggies”, was no longer reasonable and had caused numerous accidents.[93] In direct response to these holdings, California legislature amended section 830.6 to include provisions for loss of design immunity.[94] California Supreme Court later judicially overturned Cabell and Becker in Baldwin.[95] “Where a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability conferred on it by section 830.6.”[96] In Cornette, California Supreme Court articulated the three prongs required to be proven by the plaintiff in order to prove loss of design immunity:[97]
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The plan or design has become dangerous because of changes in physical conditions;
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The public entity had actual or constructive notice of the dangerous conditions thus created; and
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The public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate notice.
All three elements are required in order to terminate government immunity. First, the plaintiff has to prove that there has been a dangerous condition due to changed physical conditions. Even if the originally approved plan is in fact dangerous in practice under the original conditions of approval, but there are no changed conditions, the plaintiff cannot prevail and government maintains its immunity.[98] Second, the plaintiff has to prove actual or constructive notice. Constructive notice is usually established by a showing that there was an unusually high number of accidents prior to the injury by the plaintiff, and that the government entity had, or should have had, notice of those accidents.[99]
Changed Physical Conditions as a Requirement
The significant point in this test for loss of design immunity is the linkage of the dangerous condition and notice thereof to “changed physical conditions.” As discussed below, this requirement is not supported by statute, strong reasoning, or policy, and, thus, should be eliminated.
As the Court in Baldwin noted, “[t]he clear teaching of Weiss is that design immunity persists only so long as conditions have not changed. Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.”[100] The policy rationale articulated for the requirement of “changed physical condition” was best noted in Baldwin: “[W]here experience has revealed the dangerous nature of the public improvement under changed physical conditions, the trier of fact will not simply be reweighing the same technical data and policy criteria which went into the original plan or design. Rather, there will then be objective evidence arising out of the actual operation of the plan – matters which, of necessity, could not have been contemplated by the government agency or employee who approved the design.”[101] Cornette cited this passage with approval, and added “[t]he questions involved in loss of design immunity, e.g., whether the plan or design has become dangerous because of a change of physical conditions, are not the identical questions considered by the government officers who adopted or approved the plan.”[102]
While considerations of second guessing discretionary decisions by a public entity are why the law of design immunity was enacted, the reason that the immunity ends is notice by the public entity. Considerations of second guessing by a jury cannot override notice of dangers by the public entity. If that was not the case, then the government should be allowed to use discretionary approval even after it has notice of the danger under “changed circumstances.” In other words, if the government is allowed to provide discretionary approval for the design of the project the first time, why shouldn’t the government be allowed to use discretionary approval a second time and avoid liability after it has notice of dangerous conditions under “changed circumstances”? After all, if government considers the “policy criteria” a second time for the changed conditions, then a jury would in fact be reweighing the same factors at a tort trial. While, from the court’s reasoning, it is implied that the reason for imposing liability under “changed circumstances” is lack of discretionary approval for the new condition, for which the official has not “weighed questions of risk and policy,” courts refuse to provide immunity in cases of changed circumstances, even if the government had used its discretionary authority a second time, and had, in fact, weighed the risks and policy after notice of the danger under changed conditions. Such a logic was argued, unsuccessfully, by the amici curiae on behalf of the defendant in Cornette. The court rejected such reasoning. “We now turn to the assertion by amici curiae that the wording of the 1979 amendment to section 830.6 confirms their contention that the amendment immunizes a second design decision – when an entity, having been put on notice that the original design may have become dangerous because of changed physical conditions, decides that the design is still reasonable – and that review of this second design decisions also reserved to the trial or appellate court and is also subject to the substantial evidence test. … The problem with amici curiae’s argument is that is not what the Legislature said. What the Legislature said is that the immunity continues for sufficient time to permit the public entity to remedy the dangerous condition, or, if it cannot remedy it, to post warnings. The language in question does not allude to a finding by the public entity as to whether its design is or is not reasonable in light of changed circumstances, but merely indicates that, notwithstanding the public entity’s notice that its design immunity may have become unreasonable, its immunity to provide it with reasonable time and opportunity to remedy or warn of the inadequacy of the existing design.”[103]
In effect, the court refused to provide immunity for the government when the public entity had notice of the danger under changed circumstances, even though government tried to assert that it had used its discretionary authority a second time after notice, and in fact weighed the risks and policy considerations a second time. However, in a situation where the case goes to trial under “changed physical conditions”, wouldn’t a jury be again weighing the same questions of risk and policy already considered by the government? The question remains, then, whether there in fact exists a strong basis for distinguishing between “changed circumstances” and original conditions before change. As dissenting Justice Peters noted in Cabell, the New York decisional law, from which section 830.6 was derived, imposes upon government “a continuing duty to review its plan in the light of actual operation.”[104] Justice Peters further noted: “Undoubtedly section 830.6 granted a substantial extension of the immunity of public entities for the dangerous condition of public improvements compared to the liability which existed under prior law. This was its intent. [Citation Omitted] Under the former Public Liability Act, it was held in numerous cases that where a municipality in following a plan adopted by its governing body had itself created a dangerous condition, it was per se culpable, and that lack of notice, knowledge, or time for correction were not defenses to liability. [Citation Omitted] It is clear that the enactment of section 830.6 abrogates this rule by limiting liability for design or plan. This is a substantial change in the law. But it does not follow that merely because an improvement is constructed according to an approved plan, design, or standards, the Legislature intended that no matter what dangers might appear from the actual operation or usage of the improvement, the public agency could ignore such dangers and defects and be forever immune from liability merely on the ground that the improvement was reasonably adopted when approved without regard to the knowledge that the public entity has that the improvement as currently and properly used by the public has become dangerous and defective, or a trap for the unwary. Such an interpretation is so unreasonable that it is inconceivable that it was intended by the Legislature. But here we are not left to conjecture. The Legislature went out of its way to point out that such was not its intent.”[105] This exact reasoning relating to the notice of a dangerous condition applies whether or not there are “changed physical conditions.” In fact, when California Law Revision Commission provided its recommendations for amendment to the law, it made no note of any requirement for “changed conditions.” The Commission noted: “As a matter of simple justice, however, the immunity should be considered to have terminated when the court finds that (1) the plan or design, as effectuated, has actually resulted in a ‘dangerous condition’ at the time of an injury, (2) prior injuries have occurred that demonstrate that fact, and (3) the public entity has had knowledge of these prior injuries and a reasonable time to protect against the dangerous conditions.”[106]
In short, therefore, the requirement of “changed physical conditions” does not appear to be supported by strong reasoning or policy. When its articulated rationale, namely, the fact that the jury would not be weighing the same issues considered by the government if the conditions have changed, was taken to its logical end, the court rejected the outcome. It is also notable that the statute itself does not call for a requirement of “changed physical conditions.” The amendment to section 830.6 reads in part: “Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee.” The Legislature does not mention that physical conditions have to have changed. The Legislature only mentions a situation which no longer conforms to a plan or design that could reasonably be approved. This situation may easily arise through knowledge and the experience from the operation of the approved plan or design in real life. For instance, if the government entity designs an intersection, and the intersection, in its actual operation as designed, proves to be dangerous and causes numerous accidents, which the government is aware of, there exists a situation that does not conform to a design that could reasonably be approved with the newly learned knowledge. What government entity would reasonably approve a plan or design when it knows, based on experience, that such a plan or design is in fact dangerous? This reading of the statute is also consistent with Justice Peters’ dissent in Cabell and the Weiss case, which places on government “a continuing duty to review its plan in the light of actual operation.” The requirement of “changed physical conditions” simply does not have a place there. Therefore, the requirement of “changed physical condition” should be removed from the test to terminate design immunity.
Effect of Notice
With the elimination of the requirement for “changed physical conditions,” the focus of the test should be placed on notice. The statute does not address the situation where the government has notice of the danger prior to approval of the design, and, nevertheless, approves it in a quasi-judicial decision. This question is parallel to the question that arose in Cabell and Becker, where the court considered the issue of notice of the dangerous condition after the project was already approved and constructed. Under the then current section 830.6, the statue did not address the issue of notice of dangerous condition either before or after approval. The court in those cases held that the notice does not bar immunity. This decision was overturned by the court in Baldwin and by amending section 830.6. There is no reason why the same reasoning that removes immunity upon notice of dangerous condition after approval of the plan should not remove immunity if the government entity had notice of dangerous condition prior to approval of the plan. As discussed before, the court in Cornette rejected the argument that a second discretionary approval by the government entity after it has notice of the dangerous condition should be immune under section 830.6. It seems unlikely, and in fact unwise, for the Legislature to permit immunity for approval of a plan which the government knows is dangerous. If the government may not “ostrich-like, hide its head in blueprints” after the plan is approved, why should it be allowed to hide its head at the time of the approval? Once the government has actual notice of the danger before it has approved the plan, or is reckless as to possible dangers, it should be held to a standard of reasonableness. The need for this requirement is best seen in Alvis.
In Alvis, a reasonable jury could have easily found that defendant County of Ventura was at least reckless as to, and possibly had actual notice of, the dangers posed by the design of the wall. First, even the County engineers admitted the dangers of designing the wall without a complete numerical analysis before they learned that FEMA would pay for construction of the wall. County decided to proceed notwithstanding the fact that FEMA did not fund such a numerical study. Furthermore, once the County received FEMA approval for the design recommendations by Z-K, it was under a time pressure to complete the construction documents and start bidding. This fact was admitted by Britt and another engineer in their communications with Z-K. Such time pressure, and limited study funds, can explain why the County might have had incentives to ignore the issues raised by RJR and, at least partially, confirmed by Fugro.
Most importantly, however, is the fact that plaintiffs offered evidence from which a reasonable jury could have found that the failure of the wall was due to the exact reasons warned by RJR and Fugro. Both RJR and Fugro questioned the assumption by Z-K that the wall should be designed assuming “drained conditions.” They warned that, given the clayey soil behind the wall, the wall may in fact have limited drainage. Such limited drainage would increase the hydrostatic pressures behind the wall, leading to its failure. They also warned that analysis is lacking to study the effect of the wall in the event of another landslide, meaning that the wall could divert a potential landslide. Plaintiffs offered evidence to show that the wall, in fact, caused another landslide and then diverted it to the property of the plaintiffs. Based on the evidence, a reasonable jury could have found that the County had notice of the danger, or was, at least, reckless with regards to its existence.
Another area where the jury could have determined recklessness on the part of the County was in regards to the “temporary” nature of the wall. The Court limited its discussion of the issue to one small paragraph, where it noted: “The FEMA category under which funding for the wall was approved is for emergency measures. FEMA intends such emergency measures to be temporary. Plans for the wall, however, do not state that the wall is temporary. One letter from Z-K to the County refers to the wall as temporary. But there is no evidence the County intended that the wall would be removed.” However, “temporary” is not a simple nomenclature on engineering plans. The “temporary” nature of the wall is a major design consideration that could and would affect a host of issues. It would affect the loads for which the wall is designed, including seismic and creep loads. (These loads are the “lateral loads” referred to in concerns raised by Fugro and RJR). It would affect the material used in construction of the wall, for instance, whether they have preservative treatments. In short, the question of whether a structure is designed as temporary or permanent and its implications come up in every civil engineering design analysis. A jury could reasonably have found that Britt, who was an experienced civil engineer, with masters in engineering, and who was also licensed by the state as a professional civil engineer, was reckless as to the dangers of designing the wall as “temporary.” This is especially so since Britt, amazingly, noted in his deposition that he “didn’t know what [the word “temporary”] meant.”
The requirement of reasonableness when the County has notice of the danger, or is at least reckless as to its existence, also addresses the problem of “shopping for the desired design criteria.” Current California judicial law provides that all that is required to satisfy the “substantial evidence of reasonableness” prong of the design immunity test is testimony of one expert witness on whom the County relied on.[107] This creates the possibility that the government entity, when it suspects that a danger exists which might prevent construction or increase costs, shop for a consulting company that provides more lenient recommendations. After all, all they need is one expert. A reasonable jury could find that this was, in fact, what happened in Alvis. O’Tousa of RJR was the County’s primary geotechnical engineer who had been studying the 1995 slide for several years. His report is cited numerously in the USGS report relating to the La Conchita landslide area. The County, however, did not consult RJR for the design of the wall. They consulted Z-K, who provided the recommendation that the County needed at the cost that the County needed. RJR, of course, turned out to be the main critique of the design of the wall. The issue of “shopping for the desired design criteria” is especially prone in the civil engineering and construction industry. This is a main area protected by section 830.6, as many tort claims brought against the government are for defective roads or other structures.[108] Unlike other professional fields, any defect in the professional services of a civil engineer has an attenuated probability of being exposed, and, even if exposed, such exposure is potentially years, or decades, after the construction. First, civil engineering structures are designed for a certain probabilistic value. For instance, typical residential buildings are designed for an earthquake load that has a 10% chance of being exceeded over the 50 year life of the building. Therefore, if the design of the building is deficient, it will likely be exposed only if such an unlikely earthquake does in fact happen. Even if it does, the consequences are remote from the time the design is made and the fee is paid. The occurrence is probably decades away. Even assuming that it occurs, and that the consulting firm is still around at that time, and that its insurance is not enough to cover the damages, and that the firm is not otherwise judgment proof, the chances of losing a litigation are still slim. The plaintiff-victim would still need to prove that the design flaw was an actual and proximate cause of the failure, and that the cause was not a construction defect, inadequate/insufficient building code requirements, or other causes.
Therefore, in Alvis, the Court should not have placed the requirement of “changed physical condition,” which it decided was not in fact satisfied. The Court should have submitted to the jury the question of whether the County had notice of the dangers of the wall, or whether it was at least reckless as to their existence. If the jury provided an affirmative answer to that question, the jury should have then decided whether the County was negligent in the design. It is worth noting that submitting the question of reasonableness to the Jury does not mean that the constrains that a government entity faces, such as budget, are ignored. § 835.4 addresses this issue and provides:
835.4 — Reasonableness of act or omission creating condition or of an action to protect against risk of injury created by condition
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A public entity is not liable under subdivision (a) of section 835 for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury.
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A public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.
Therefore, while the question of reasonableness would be submitted to a jury, all the constrains that the government faces would still be weighed in reaching a conclusion. As the Law Revision Comments to this section note: “[A] public entity may absolve itself from liability for creating or failing to remedy a dangerous condition by showing that it would have been too costly and impractical for the public entity to have done anything else. … Government cannot ‘go out of the business’ of governing. Therefore, a public entity should not be liable for injuries caused by a dangerous condition if it is able to show that under all the circumstances, including the alternative courses of action available to it and the practicability and cost of pursuing such alternatives, its action in creating or failing to remedy the condition was not unreasonable.”
It is also noteworthy that it usually does not cost the government much in order to be reasonable. In Alvis, the County did not even intend to build the wall until it learned that it can receive it for free from FEMA. It even engaged in litigation, and prevailed, against residents who wanted to compel the County to remove the debris. It was considered “unnecessary.” Furthermore, in a lot of other cases, simple steps such as warning signs, lights, and barricades satisfy the requirement of reasonableness. In Becker, it was estimated that a $ 5,000 island would have reduced head on collisions by 70-90 percent.[109] . Also in Baldwin, the state admitted that the cost to it of installing a left turn lane at the intersection would not have exceeded $ 20,000.[110]
V. Conclusion and Recommendations
The current judicial test in California for termination of design immunity is inadequate due to two main reasons. First, it requires “changed physical conditions” in order to impose liability on the public entity. Such a requirement does not have a solid basis in the statute or otherwise, and was even rejected by the court when it was taken to its logical conclusion. Second, the law does not address the issue of notice in advance of approval, and whether the public entity can approve a plan knowing of its dangers, or whether the entity is allowed to be reckless about the dangers. It is recommended that the test for loss of design immunity be modified so as to remove the requirement of “changed physical condition.” The test should also provide that when the government entity, in advance of approval of a plan, has notice of the dangers of the plan, or is reckless with regards to them, a jury must decide whether the entity’s actions were reasonable. In deciding reasonableness of such actions, factors noted in section 835.4 must also be considered. The test for loss of design immunity, therefore, should be modified to read as follows:
Once the government successfully establishes all three elements of the affirmative defense of design immunity, the plaintiff can show loss of design immunity in one of the two following ways:
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If, prior to approval of the plan or design, the public entity had actual notice of the flaw in its design, or was at least reckless with respect to its existence; or
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If, after implementation of the design in a real world structure,
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the plan is dangerous in its actual operation,
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the public entity had actual or constructive notice of the dangers based on evidence and experience obtained from actual operation of the plan, and
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the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warning.