Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara, Thomas P. Anderle, Judge, Super. Ct. No. 1167835
Law Offices of Steven R. Andrade, Steven R. Andrade and Michael Dale Troy; Lascher & Lascher, Wendy Cole Lascher, for Appellant.
Stephen P.Wiley, City Attorney, City of Santa Barbara and Tom R. Shapiro, Assistant City Attorney, for Respondent.
YEGAN, J.
Erica Michelle Herman appeals from a summary judgment granted in favor of City of Santa Barbara (City) on her personal injury complaint. (Code Civ. Proc., § 437c.) The trial court ruled that the action was barred by the design immunity provisions of Government Code section 830.6. We affirm.
Facts and Procedural History
On the afternoon of June 14, 2004, a truck hit appellant in a crosswalk at Anacapa and Haley Streets in Santa Barbara. Anacapa is a one-way, three lane street that heads south. Haley Street is a two lane, one-way eastbound street.
The record includes a diagram of the intersection which is attached.
The truck driver stopped at the intersection, waited for the signal change, and turned left from the Anacapa Street center lane onto Haley Street, striking appellant in the middle of the crosswalk. The driver said he "must have been looking somewhere else."
Appellant sustained severe head injuries and sued City for dangerous condition of public property. (Gov. Code, §§ 830; 835.) Citing Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, the trial court granted summary judgment on the ground that the action was barred by the design immunity provisions of section 830.6.
Unless otherwise stated, all statutory references are to the Government Code.
Discussion
We review the order granting summary judgment de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) Section 835, subdivision (b) provides that a public entity is liable for injury proximately caused by the dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68.) Even where the plaintiff shows a dangerous condition of public property, the action may be barred by the design immunity provisions of section 830.6. (Id., at p. 69.)
The Intersection
The intersection was designed in 1989 to convert Haley Street into a one-way eastbound street with signals. After the conversion, motorists on Anacapa Street accessed Highway 101 by driving south past Haley to the highway.
In 1992, Caltrans closed highway access at Anacapa Street. In order to access the highway, motorists on Anacapa Street had to turn left onto Haley Street and drive two blocks to the Garden Street/Highway 101 interchange. Because of the increase in traffic volume, City modified the center lane on Anacapa Street to make it a left-turn/through lane. White lines and reflectors were added to separate and widen the left turn lanes. Pedestrians crossing Haley Street still had to use the traffic signal. There were no "Walk"/"Don't Walk" pedestrian lights.
Dangerous Condition
Appellant argues there are material triable facts about pedestrian safety. Appellant's traffic expert, Harry J. Krueper, Jr. opined that the intersection was dangerous because a vehicle turning left on Anacapa Street from the center lane "could be hidden behind a southbound left turning vehicle in the #1 lane and might not be visible to a pedestrian entering the marked crosswalk. Visibility of that pedestrian could also be obstructed by other left-turning vehicles from that southbound left-turning driver in the #2 lane."
Although this was a safety concern, it was not a "blocked visibility" accident. Witnesses saw the truck driver stop at the intersection and wait for the green light before turning left. There were no vehicles in front of him. The truck driver stated that the intersection was clear and that he was reaching for a cup of Pepsi-Cola prior to or during the turn. The investigating officer calculated the truck was traveling approximately 12 miles per hour and did not list "lack of visibility" as an accident factor.
City's traffic expert, William Kunzman opined that obstruction of the driver's or pedestrian's view was not a causative factor. Kunzman stated that pedestrians had "a clear, unobstructed view of left-turning vehicles from Anacapa Street prior to deciding to enter the crosswalk. This is consistent with the fact that there have been no pedestrian/vehicle accidents involving the subject crosswalk with the exception of this single instance involving Plaintiff and the truck driver." The trial court drew the reasonable inference that the accident was not caused by a vehicle blocking the driver's view or appellant's view. (See e.g., Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615.) The court declined to rule on whether the intersection was a dangerous condition but found that the action was barred by the design immunity provisions of section 830.6. It did not err.
Design Immunity
It is undisputed that the intersection conformed with all safety and traffic design standards before and after the extra turn lane was added. In 1992 a traffic safety committee recommended additional warnings for pedestrians, but City determined that it was not necessary. (See e.g., Sutton v. Golden Gate Bridge, Highway Transp. Dist. (1998) 68 Cal.App.4th 1149, 1159-1161[omission of bridge median barrier was design decision].) Although appellant's expert opined that the intersection could be made safer, the reasonableness of City's adoption of the plan or design was a legal issue for the court to decide. (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66.) "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 been previously been considered by the government officers who adopted or approved the plan or design. [Citation.]" (Id., at p. 69.)
The trial court did not err in finding that the moving papers established the requisite elements for design immunity: "(1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. [Citations.]" (Id., at p. 66.)
Change of Physical Conditions
Appellant argues that the design immunity was lost due to a change of physical conditions. To successfully oppose the summary judgment motion, the burden was on appellant to show three things: (1) the design was dangerous because of a change of physical condition; (2) City had actual or constructive notice of the dangerous condition, and (3) City had a reasonable time to obtain funds and carry out remedial work to make the intersection conform with a reasonable design or plan. (Cornette v. Department of Transportation, supra, 26 Cal.4th at pp. 72-73; see also Weinstein v California Department of Transportation, supra, 139 Cal.App.4th at p. 60.)
This is a difficult burden to meet because an increase in traffic alone is insufficient to establish the loss of design immunity. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 808.) "Since it is necessary to establish all three elements of the loss of the design immunity [citation], [appellant] need[s] to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome [City's] motion for summary judgment." (Id., at pp. 806-807.) Even if appellant "shows the existence of a changed physical condition, cases have required a strong showing that this has resulted in a dangerous condition. Design immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical condition, has produced a dangerous condition of which the [city] is aware. [Citation.]" (Van Alstyne, Cal. Government Tort Liability Practice (Cont. Ed, Bar. 4th ed. 2007) § 12.74A, p. 937.)
Actual or Constructive Notice
The crux of this case is whether City had actual or constructive notice of the alleged dangerous condition and had adequate time to remedy the danger. (See Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 62.) Before and after the lanes were modified, there were no reported pedestrian-auto accidents at the crosswalk. Appellant asserts there were "near misses," but the evidence is anecdotal and the information was not communicated to City.
City's traffic expert declared that "the undisputed fact is that there have been no other pedestrian and vehicle accidents at the subject intersection other than this accident . . . . This is a clear fact and a measurable, reliable indicator that the intersection as designed and implemented remains safe and in conformity with governing departmental and industry standards. (The only other pedestrian-auto accident near the intersection occurred 30 feet north of the intersection where a pedestrian was hit while jaywalking at 2:00 a.m. . . .) [¶] . . . Pedestrian signal indications were not required at the time of the accident. At the time of the accident, the traffic signal design and crosswalk striping implemented were not only appropriate features of the intersection design, but were preferred over pedestrian signal indications for this intersection, because they provided notice to both would-be pedestrians crossing northbound on Anacapa Street and vehicles turning left from Anacapa Street onto eastbound Haley Street to proceed with due care, whereas pedestrian signals would encourage pedestrians to proceed with more immediacy and under a false premise of safety."
The City Engineer, City Public Works, and the police department confirmed that the intersection met all safety design standards, that there were no reported prior crosswalk accidents, and that the crosswalk, traffic signals, signs and striping were in good working order. Although appellant argues that the intersection could have been made safer, the trial court properly concluded that the decision to design the intersection with more safety features was a discretionary matter for the City. Where reasonable minds differ over the reasonableness of the design, it suffices to establish design immunity. (Compton v. City of Sante (1993) 12 Cal.App.4th 591, 597.) "Any property can be dangerous if used in a sufficiently abnormal manner; a public entity is required only to make its property safe for reasonably foreseeable careful use. [Citation.]" (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.)
Appellant's expert speculates that the accident could have been prevented had City eliminated the crosswalk marking, installed signs or arrows to warn pedestrians that two lanes of traffic could turn left, installed "walk/don't walk" pedestrian signals, and changed the traffic light phasing.
The design immunity also bars the claim that City was liable for not posting warnings signs or signals. " 'It would be illogical to hold that a public entity immune from liability because the design was deemed reasonably adoptable, could then be held liable for failing to warn that the design was dangerous.' [Citation.]" (Weinstein v. Department of Transportation, supra, 139 Cal.App.4th at p. 61.)
The judgment (order granting summary judgment) is affirmed. City is awarded costs on appeal.
We concur: GILBERT, P.J., PERREN, J.