Design Immunity for Public Agencies Clarified by California Supreme Court
Decision touches on a crucial issue in public agency tort defense
A crucial issue in public agency tort defense was recently clarified by the California Supreme Court in Hampton v. County of San Diego. While a public entity may be liable for a dangerous condition of public property, the affirmative defense of design immunity may shield the agency if it can establish that 1.) there is causal relationship between the design and the accident, 2.) the agency made a discretionary approval of the design and 3.) substantial evidence supports the reasonableness of the plan, as discussed in Government Code section 830.6.
In Hampton, the Court addressed the second element, concluding that the discretionary approval element “does not implicate the question whether the employee who approved the plans was aware of design standards or was aware that the design deviated from those standards.” Nor must the public agency prove in its case that the employee who made the discretionary approval had authority to disregard applicable design standards. The Court’s discussion is a broad affirmation of the discretionary approval provided by a qualified official (often a design engineer) to a reasonable design.
In Hampton, the plaintiff was injured in a collision between his vehicle, which was attempting a left turn, and another vehicle on a two-lane thoroughfare. The claim against the agency was that the design and construction of the intersection where the accident occurred afforded inadequate visibility and failed to meet applicable county design standards because it did not describe, depict or account for an embankment along the thoroughfare that impaired visibility. The agency presented evidence that the design standards contemplated that drivers would “creep forward” after stopping at the stop line to improve visibility before making a turn, thus eliminating the impairment caused by the embankment.
The agency moved for summary judgment. Plaintiff contested whether the agency had met the requirements for discretionary approval because the design did not depict the embankment and visibility did not meet county standards. The trial court granted judgment to the agency, and the appellate court affirmed. The Supreme Court also affirmed, holding that, in evaluating discretionary approval, trial courts are not to consider whether the approving engineer was aware of design standards or that the design in question met those standards. The rationale for this lies with the legislative intent of avoiding having a jury re-examine and second-guess governmental design decisions at trial. Allowing such a re-examination would defeat the purpose of the design immunity, i.e., giving the jury the power to make its own decisions where public officials have been vested with authority to act.
For both legal and practical reasons, a trial court can consider whether the approving official, knowingly or unknowingly, approved the plans under the third element — the reasonableness of the design. On a practical point, the Court recognized that the reasons and motivation of the approving official would likely be unavailable, as design immunity defenses often occur many years after approval, forcing the agency to rely on half-formed memories and would require a rabbit trail of paperwork. Furthermore, the allegation that the officials applied the wrong standard does not divest an agency of a discretionary choice, but goes to the reasonableness of the design.
For public agencies, this case serves two purposes. First, it is a strong affirmation and endorsement of design immunity. The Court’s approval signaled that the public agency’s deliberative process and decision making is not open to interpretation and second-guessing by the jury. Second, it serves as a constant reminder that record keeping is extremely important. The design immunity defense is only available if the agency has design plans and as-built plans that reflect what was actually constructed, and plans show that there was discretionary approval by the agency.
If you have any questions about this cases or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
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