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Public Law Journal, Vol 37, No 1 Vol. 37, No. 1 Winter 2014 An Official Publication of the State Bar of California Public Law Section Inside this Issue Substandard Designs and MCLE SELF-STUDY ARTICLE Better Technology—New (Check end of this article for information on how to access 1.0 self-study credit.) Developments in Design Immunity By Kimon Manolius, Christine Hiler Substandard Designs & Julie Veit Page 1 Message from the Chair: The 2014 Public Law Section! and Better Technology— By David H. Hirsch Page 9 Public Lawyer of the Year New Developments in Nominations Sought Page 11 Municipal Condemnation of Mortgage Loans Design Immunity By John Vlahoplus Page 15 By Kimon Manolius, Christine Hiler and Julie Veit* Enter the Public Law Section Student Writing Competition— Deadline May 12 Page 21 Police Liability for Tactical Conduct Preceding the Use of I. INTRODUCTION it, provide public agencies with the Force—The Implications of Hayes v. County of San Diego guidance necessary to establish Design immunity is a powerful tool By Michael R. Linden and design immunity and to protect Justin B. Atkinson Page 23 for public agencies. If established, themselves from dangerous condition it bars liability where a reasonable Legislation Update of public property lawsuits. As an By Kenneth J. Price Page 29 design feature approved in advance affirmative defense, design immunity 1 Litigation & Case Law Update of construction causes an injury. is particularly appropriate for 3 By Scott Dickey Page 31 Premised on the separation of powers summary judgment. doctrine, design immunity prevents This article provides an update on the judicial branch from interfering two important developments to this with or otherwise second-guessing otherwise relatively static doctrine. the discretionary design approval The first development is the of elected and appointed officials.2 California Supreme Court’s recent California Government Code section grant of review in Hampton v. County 830.6, and the cases interpreting of San Diego and Curtis v. County The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 of Los Angeles, cases questioning put the agency on notice that the before approving a substandard whether a public agency must prove physical conditions at the property design; and (2) assuming knowledge that an authorized employee who have changed rendering the of a substandard design, must approved a design knew it was original design dangerous. the entity show the official had 4 substandard. The court’s decision II. DOES DESIGN the authority to disregard those will impact the design immunity IMMUNITY REQUIRE standards before approving the KNOWING AND 13 doctrine significantly. No knowledge INFORMED APPROVAL substandard design elements? requirement suggests that public OF DESIGNS? In Hampton, plaintiffs sued the agencies might ignore deviations County of San Diego for failing to from applicable standards when To demonstrate an entitlement to provide sufficient sight distance at approving a design. Imposing a design immunity, public entities the intersection where they were knowledge requirement, on the must demonstrate that: (1) the design caused the accident; (2) the injured in a car crash.14 Because other hand, could weaken design design was “approved in advance there was no evidence that the immunity because proffered evidence of the construction [] by the approving engineer knew of the of an alleged substandard design 5 legislative body of the public entity substandard element, plaintiffs could defeat summary judgment. or by some other body or employee claimed that the public entity The second development involves exercising discretionary authority to did not show the engineer had 15 a decision that strengthens design give such approval” or was prepared authority to approve the plan. The immunity’s protections.6 When in conformity with standards trial court rejected this argument, changed physical conditions make previously so approved; and, (3) holding that evidence of proper a design dangerous, the immunity substantial evidence supports the delegation was sufficient to show 9 is lost.7 In Dammann v. Golden Gate reasonableness of the design. The that the engineer had the approval 16 Bridge, Highway and Transportation two cases currently pending before authority as a matter of law. Proof District, the First District Court the California Supreme Court, of knowledge was not required. of Appeal held that evidence Hampton and Curtis, focus on the 10 Plaintiffs argued on appeal that of changed physical conditions second element. where the design is substandard, must pertain to conditions at the Under section 830.6, there are three the entity must show that the property in question; technological different ways that a public agency approving engineer: (1) knew it was advancements implemented at other 8 can satisfy the second element to substandard, (2) elected to disregard facilities are not sufficient. Limiting show that the design was approved the standard, and (3) had the the type of evidence that constitutes in advance of construction : (1) the authority to do so.17 They cited Levin changed physical conditions limits legislative body can approve the v. State of California and Hernandez the ways in which an agency can lose design; (2) a body or employee given v. Department of Transportation, the its design immunity. discretionary authority can approve only two cases addressing this issue, the design; or (3) the design must 18 What do these developments mean for support. The Fourth District conform to approved standards.11 for public agencies? For public Court of Appeal disagreed, holding The narrow issue in Hampton and agencies seeking to obtain design that evidence that an engineer with Curtis is whether the exercise of immunity, design officials should approval authority as well as another discretionary authority delegated to document their design choices engineer approved the plans was an employee to approve a design, in as much detail as practicable, sufficient to meet the discretionary under the second prong, must be approval element as a matter of especially when they consider 12 knowing and informed. 19 and reject design options, and law. Refusing to infer a knowledge particularly when designs deviate Specifically, the Hampton plaintiffs requirement into the language of from existing standards. For those raise the following questions: section 830.6, the court explained: seeking to retain design immunity, (1) must an entity demonstrate that [w]e respectfully disagree with staff should track whether accidents an official consciously decided to Levin and Hernandez to the occur or claims arise that would deviate from applicable standards extent they suggest that a public 2 The Public Law Journal • www.calbar.ca.gov/publiclaw • Vol. 37, No.1, Winter 2014 entity attempting to establish the official knew about deviations which suggest that courts should discretionary approval element of from applicable design standards assume an approving official a design immunity defense must before approving the design in was diligent in considering all establish an exercise of informed question.26 Knowledge of deviations relevant aspects of a design.32 To discretion and that evidence assumes the official has knowledge hold otherwise would allow a jury that the public entity failed to of applicable standards. Plaintiffs or court to simply reweigh the adhere to standards pertaining argue that public agencies must considerations of the public official to an element of a design plan 33 constitutes evidence of a lack show that the authorized official had who approved the design. knowledge of an alleged deviation of discretionary approval of the Specifically, if courts were to require design. The text of section 830.6, and that he or she consciously 27 public agencies to present evidence from which the discretionary disregarded it before approval. In of knowledge of substandard approval element is derived, does response, the public agencies—and designs, plaintiffs could simply not contain any requirement of the Fourth and Second District 20 introduce conflicting evidence informed discretion. Courts of Appeal—maintain that to defeat summary judgment. an authorized official’s signature on Indeed, the court found section Regardless of whether a design a set of plans is sufficient evidence 830.6 only requires evidence that is in compliance with applicable the entity appropriately delegated that all aspects of the design standards, plaintiffs could discretionary approval or evidence were considered, including any 28 accomplish this by challenging that the plan conformed with substandard elements. whether : (1) the proper standards 21 previously approved standards. The California Supreme Court’s were applied; (2) there is a deviation The Fourth District concluded that resolution of this issue will have from a particular standard; and design immunity’s second element significant ramifications for public (3) the authorized official had was satisfied with proof that the agencies attempting to meet design knowledge of the deviation. official who approved the plans immunity’s second element. On had proper authority to do so.22 This exact scenario occurred one side, while there is support for Nothing more was required. in Hernandez v. Department of the Fourth and Second Districts’ Transportation.34 There, the court Similarly in Curtis, a motorist brought general holdings that design approval refused to find design immunity suit against the County of Los Angeles by an authorized official
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