Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS029338
Reardon, J.
Leon Bedford Hill appeals from summary judgment in favor of respondent State of California (the State) based on the State’s affirmative defense of design immunity. His action arises from personal injuries he suffered in a vehicle collision on Interstate 80 (I-80) in Solano County. On appeal, Hill claims there is a triable issue of fact as to whether the State lost its design immunity due to a change in the physical conditions of the roadway. We affirm.
I. FACTS
On the afternoon of August 20, 2006, a Honda Civic swerved off of I-80, drove through a barbed wire fence, and struck Hill as he rode his motorcycle along Lyon Road, a frontage road which parallels the highway. Hill was seriously injured. The driver of the Honda was going 80 miles per hour when she lost control of the vehicle and collided with Hill.
Design plans for I-80 and Lyon Road met State standards at the time of approval in 1964. The standards provided that at least 26 feet must separate a freeway and a frontage road. Lyon Road and I-80 are approximately 35 feet apart at the accident site. Hill’s expert testified that in the past 10 years, 68 run-off-the-road accidents have occurred within two miles of Hill’s collision and 25 vehicles reached Lyon Road. The State’s expert testified that 15 of those accidents reached Lyon Road, and no prior accidents involved a similar vehicle-on-vehicle crash in that area. Hill’s expert did not provide any evidence of vehicle-on-vehicle collisions at Hill’s accident site, and also admitted that many accidents were caused by driver error rather than roadside features.
Four months after plans were approved for this stretch of I-80, separation standards changed, requiring the same 26-foot gap in urban areas, but a 40-foot gap between highways and frontage roads in rural areas. However, the new standard does not require a barrier in the event that the standard is not met. The record is unclear whether I-80 and Lyon Road constitute a rural area. Caltrans forms so indicated, but no witness confirmed that this location is considered a rural area.
Dwight Caldwell, the State’s traffic investigator most knowledgeable about I-80 safety evaluations at the subject location, testified that he was familiar with the State’s criteria for selecting sites for an outer separation barrier. In considering whether a reported problem location merited such a barrier, he would take into account actual collisions between vehicles on the frontage road and freeway for locations less than the governing width warrant. But accidents where vehicles leave the frontage road or freeway and hit the right-of-way fence, without crossing onto the outer road generally would not warrant a separation barrier.
Traffic has also substantially increased on Lyon Road and I-80 since construction was approved. Hill’s expert asserted that a guardrail would have made the location safer. The State’s expert testified that, given the lack of actual collisions between vehicles, guardrails in this portion of I-80 would be unnecessary. Hill sued the driver, the State, the Department of Transportation, the City of Fairfield, and the County of Solano. Fairfield and Solano County were dismissed from the action. The trial court found in favor of the State, granting summary judgment based on the affirmative defense of design immunity. This timely appeal followed.
II. DISCUSSION
A. Standard of Review
A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Ibid.) When a plaintiff appeals from summary judgment, we independently review the record to determine whether there exists a triable issue of fact to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
B. Legal Framework
A public entity is liable for a dangerous condition on public property if the plaintiff establishes that (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his or her employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition and a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.) However, the government can assert an affirmative defense of design immunity if it can show that (1) there was a causal relationship between the plan and the accident; (2) there was discretionary approval of the plan prior to construction; and (3) there was substantial evidence supporting the reasonableness of the design. (Id., § 830.6; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 88-89.)
Once a defendant has established design immunity, the burden shifts to the plaintiff to raise a triable issue of material fact that design immunity was lost. This means that the plaintiff must make a prima facie showing regarding each of the three elements needed to establish the loss of design immunity. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806 .) Design immunity is lost when (1) the plan or design has become dangerous due to a change in physical conditions; (2) the State had actual or constructive notice of the dangerous condition; and (3) the State had reasonable time to remedy the dangerous condition among other things. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66.)
“[W]hile increased traffic volume may constitute changed physical conditions [citations], 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 conditions, has produced a dangerous condition of which the State is aware. [Citations.] [¶] ‘ “Dangerous condition” means a condition of property that creates a substantial... risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.’ ([Gov. Code, ] § 830, subd. (a).) For example, an improvement may come to constitute a dangerous condition if increased traffic at the site, coupled with an aberrant accident history, indicates its dangerousness. [Citations.]” (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 737-738, abrogated on another point in Cornette v. Department of Transportation, supra, 26 Cal.4th at pp. 67, 74 & fn. 3, italics added.)
C. Analysis
The only issue on appeal is whether Hill raised a triable issue of fact regarding loss of design immunity. He first contends that he presented such an issue regarding a dangerous change in conditions. While Hill noted a number of car accidents in the vicinity in addition to the increase in traffic over the past 10 years, of these accidents, only up to 25 of the vehicles reached Lyon Road. Most significantly, none of the accidents involved a vehicle which penetrated the fence, went onto Lyon Road and collided with another vehicle, bike, motorcycle or pedestrian. Thus, the record does not show that 25 accidents demonstrate an aberrant accident history. (Alvarez v. State of California, supra, 79 Cal.App.4th at pp. 737-738.) Finally, the driver hit Hill at 80 miles per hour-well over the speed limit.
Hill further argues that the change in standards that occurred after the design for I-80 and Lyon Road was approved constitutes a changed condition. However, change in the State’s design standard does not necessitate the conclusion that the previous standards were defective and unsafe. (Dole Citrus v. State of California (1997) 60 Cal.App.4th 486, 493-494.) For example, in Dole, the State did not lose design immunity when it updated design standards requiring screens on new overpasses and existing dangerous overpasses. (Ibid.) There, the plaintiff failed to show that the unscreened overpass created a dangerous condition that caused the plaintiff’s injury: a car accident resulting from a jumper’s contact with the plaintiff’s car. (Ibid.) The State did not lose design immunity because general design improvements did not constitute an admission that the prior design was defective. (Id. at p. 494.) Rather, the new requirements were interpreted as an alternative to the prior design in future construction. (Ibid.)
Here, the State’s update of its design plans four months after it approved this section of I-80 does not constitute an admission that the existing requirement of a 26-foot gap is unsafe and requires a guardrail. (Dole Citrus v. State of California, supra, 60 Cal.App.4th at p. 493.) Hill has provided no state standard involving guardrails, and his statement that a guardrail would have increased safety at the site was merely conclusory. Further, Hill has not shown that the site constitutes a rural area eligible for such a guardrail. Most significantly, the State standards relating to the minimum distance between a freeway and a frontage road do not require a guardrail or other barrier in the event that the standard is not met. Instead, the State gauges the necessity of a guardrail based on actual collisions in a problem area. Thus, construing the facts in favor of the appellant, Hill has not made a prima facie showing of a material issue of triable fact as to whether a changed design standard created a substantial risk of danger.
Hill also asserts that the State had actual or constructive knowledge of the alleged dangerous condition. A public entity has constructive or actual knowledge of a dangerous condition if it knows or should have known that the property poses a substantial risk to people using due care. (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66 .) Because any property can be dangerous if used without due care, mere knowledge of accidents caused by third party misuse is not enough to constitute knowledge of a dangerous condition. (See Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) Instead, a plaintiff must show that in addition to third party negligence, a physical defect intensified the danger posed by negligent third parties. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 152.)
Here, Hill asserts that the State had knowledge of a dangerous condition because it was aware of the accident rate in the vicinity of the crash and the increase in volume of traffic. Hill does not cite any evidence supporting his contention that those accidents were a result of a dangerous road condition. Mere knowledge of an increase in traffic, accidents in the vicinity (but not at the site), and a change in standards are not enough to raise a triable issue of fact as to whether the State had knowledge of the alleged dangerous condition.
Finally, Hill contends that there was an issue of material fact as to whether the State had sufficient time to correct the alleged dangerous condition. To satisfy this element, Hill must show that the State had reasonable time to fund and remedy the dangerous condition, thereby bringing it into accordance with a reasonable design plan. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1268.) Hill claims that the State has had 45 years to remedy the “viol[ation] [of] its own standards.” This approximation is based on the assumption that the road became dangerous when the standard changed in 1964 and that, in the meantime, the State has idled by observing traffic and accident rates increase. As discussed above, a mere change in standards, and increased traffic and accident rates in the vicinity but not at the site, do not constitute a dangerous condition without proof that a defect in the road contributed in some way to substantial injury. While 45 years could be enough time to remedy a dangerous condition, there is no evidence that a defect in the property existed. Even if he were able to establish such a fact, Hill did not address the State’s ability to fund a remedy. Thus, Hill has not shown a triable issue of fact as to whether the State had ample time to address the alleged dangerous condition.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.