Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-000865720 CU-PA-CTL, Charles R. Hayes, Judge.
AARON, J.
I.
INTRODUCTION
Anthony Jolin filed this action against the County of San Diego (County) in which he alleged that the County's negligent placement of a sign warning drivers of an upcoming curve in the roadway (known as a "reverse curve sign") was a proximate cause of an automobile accident in which he sustained injuries. The County claimed that the sign was placed at the location specified in an approved "curve review" plan, and that the County was therefore immune from liability pursuant to the statutory affirmative defense of design plan immunity. (Gov. Code, § 830.6.) After a bench trial on the County's design plan immunity defense, the trial court ruled that the County had established that it was immune from liability.
Unless otherwise specified, all subsequent statutory references are to the Government Code.
On appeal, Jolin contends that the trial court erred in determining that the County was immune from liability based on the affirmative defense of design plan immunity. Jolin maintains that his action is not barred by the design plan immunity defense because the evidence demonstrates that the reverse curve sign was not in fact placed at the location specified in the curve review plan. Jolin also maintains that the County did not demonstrate that the curve review plan was approved prior to the sign being installed on the roadway. We conclude that the County established both that the sign was placed at the location specified in the curve review plan, and that the plan was approved prior to the sign being placed. We therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Jolin's complaint and the County's answer
In April 2009, Jolin filed a complaint against the County and Jack Southworth. In his complaint, Jolin alleged that on January 12, 2008, he was riding as a passenger in Southworth's pickup truck on San Felipe Road, a road owned and operated by the County. While driving around a sharp left curve, Southworth lost control of the truck, and the truck overturned. Jolin suffered severe injuries in the accident.
In a cause of action against the County for a dangerous condition on public property (§ 835 et seq.), Jolin alleged that there was a reverse curve sign placed approximately 700 feet prior to the curve. Jolin maintained that the sign was placed too far from the curve to effectively warn drivers of the location of the curve and claimed that the sign should have been placed approximately 225 feet before the curve. Jolin further alleged that the County's failure to properly place the sign was a proximate cause of the accident. In a second cause of action against the County, Jolin alleged that the County had notice of the dangerous condition created by its placement of the reverse curve sign (§§ 835.2, 840.2, 840.4 et seq.). In a third cause of action, Jolin claimed that the County was liable for the acts of any independent contractor that might have placed the reverse curve sign.
Jolin also brought a claim for vehicular negligence against Southworth. Jolin's claim against Southworth is not relevant to this appeal, and Southworth is not a party to this appeal.
In its answer, the County alleged that it was not liable for any of Jolin's claims by operation of the design plan immunity affirmative defense specified in section 830.6. Specifically, the County claimed, "[T]he alleged dangerous condition, if there was any, was a result of a plan or design of a construction of, or improvement to, public property and such plan or design was reasonable at the time and approved in advance as provided in said provision of law."
B. The County's design plan immunity defense
The County filed a trial brief pertaining to its design plan immunity affirmative defense. The County noted that in order to establish design plan immunity, it was required to demonstrate three elements: a causal relationship between the design and the accident; discretionary approval of the design prior to construction; and substantial evidence supporting the reasonableness of the design.
In its trial brief, the County noted that in 1987 it had conducted a "road review" of traffic conditions on San Felipe Road. While performing the study, County engineers learned that two accidents had previously occurred in the area of the subject curve. The engineers determined that "more advance notice of the 'S' curve, coupled with a lower advisory speed, was needed, " and, as a result, the reverse curve sign and an advisory speed sign were "moved further west and posted approximately 500 feet before the start of the... curve."
The County argued that Jolin's claims were all based on the County's alleged negligent placement of the reverse curve sign, and maintained that the sign was relocated in 1987 in response to the detailed road review study discussed above. The County further contended that the reasonableness of the design was established by the declarations of its traffic engineer, Robert Goralka, and a retained traffic engineering expert, Arnold Johnson, both of whom expressed the opinion that the placement of the sign was reasonable. Accordingly, the County maintained that it had established its design plan immunity defense as a matter of law.
The County argued that all of Jolin's claims against it were based on the same factual allegation, namely, that the County had improperly placed the reverse curve sign.
The County supported its brief with Johnson's and Goralka's declarations, as well as a copy of the 1987 road review. In his declaration, Goralka noted that the 1987 road review indicated that as a result of a study performed that year, the reverse curve sign had been "moved further west and posted approximately 500 feet before the start of the... curve." Goralka also stated, "The new design, with the signs posted approximately 500 feet from the start of the... curve, has remained in place since 1987."
In his opposition, Jolin maintained that the County was not entitled to prevail on its design plan immunity defense because the County had placed the reverse curve sign approximately 700 feet before the curve, rather than 500 feet before the curve as called for in the road review. In support of his assertion regarding the location of the sign, Jolin cited a traffic collision report prepared by California Highway Patrol Officer Michael Chell in which Chell states, " ' [T]here is a black and yellow curve caution sign... 700 feet prior to the left curvature....' " Jolin cited excerpts of Officer Chell's deposition that Jolin claimed supported his assertion that the sign was placed 700 feet before the curve. Jolin also argued that the County had failed to establish that it had approved the 1987 road review prior to moving the reverse curve sign, as would be required in order to establish the affirmative defense of design plan immunity.
Jolin lodged Officer Chell's traffic collision report and the relevant excerpts from Chell's deposition with his opposition.
The County filed a reply brief in which it argued that the reverse curve sign was in fact located approximately 500 feet prior to the beginning of the curve, in accordance with the 1987 design plan. In support of this assertion, the County offered supplemental declarations from Goralka and Johnson, and a declaration from accident reconstruction expert Edward Phillips. Goralka, Johnson, and Phillips each stated that the sign was located approximately 500 feet from the beginning of the curve. Phillips and Johnson each stated that he had personally measured the distance from the sign to the beginning of the curve. The County also argued that the excerpts of Chell's deposition demonstrated that the 700-foot measurement mentioned in his traffic collision report referred to the distance from the middle of the curve to the reverse curve sign, rather than from the beginning of the curve to the sign. Goralka also stated in his declaration that the County had approved the curve review portion of the 1987 road review prior to moving the reverse curve sign.
In his declaration, Phillips stated that the reverse curve sign was placed "857 feet east of mile post marker 16." Goralka stated in his declaration that 850 feet east of mile post marker 16 is equivalent to approximately 510 feet west from the beginning of the curve.
The trial court held a bench trial on the County's affirmative defense, at which Goralka and Officer Chell testified. Goralka testified that a 1987 curve review recommended that the reverse curve sign be relocated from approximately "20 feet east of the beginning of the curve" to "about 500 feet west of the curve before the curve." Goralka testified that a County engineer who had the authority to approve signage placement on County roads had approved the curve review, and that the reverse curve sign was subsequently moved in accordance with the curve review recommendation. Officer Chell testified that the 700-foot measurement in his traffic collision report represented the distance from the reverse curve sign to the middle of the curve.
The trial court ruled that the County had established its design plan immunity affirmative defense. In rendering it decision, the trial court stated that it was clear from the evidence presented at trial that the reverse curve sign was "about 700 feet from the middle of the curve and 500 feet from the beginning of the curve." The court also stated, "I accept the testimony of the officer. That makes it about 500 feet in advance of the curve, using his beginning point at about halfway into the curve." With respect to whether the County had approved the design plan prior to moving the reverse curve sign, the court stated, "The County did its work in advance of doing any work on the site; there's no evidence to the contrary of that. So I think the engineering discretion, the review, the approval process was all done in accord with what should have been done as to the second element as required."
The trial court was referring to the requirement that the governmental entity seeking design plan immunity demonstrate that the discretionary approval of the design took place prior to construction.
C. The trial court's judgment and Jolin's appeal
The trial court entered the following judgment in favor of the County:
"This matter regularly came on calendar for trial on May 24, 2010, at 10:00 a.m. before the Honorable Charles R. Hayes. The case was bifurcated, with the first portion to be heard relating to the application of design immunity under Government Code section 830.6.
"Witness testimony was heard and oral argument was presented to the Court. After full consideration of the evidence presented, the Court finds, as a matter of law and pursuant to the elements specified by section 830.6 that Defendant County of San Diego is entitled to immunity from liability in this action."
Jolin filed a timely notice of appeal from the judgment.
III.
DISCUSSION
The County established its design plan immunity defense as a matter of law
Jolin contends that the trial court erred in concluding that the County established the affirmative defense of design plan immunity as a matter of law.
A. Governing law
1. The liability of a governmental entity for an injury caused by a dangerous condition on its property
"A governmental entity is liable for an injury caused by its property if at the time of the injury: (1) the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual and/or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition." (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1251 (Laabs).)
2. Design plan immunity
"Under section 830.6, a public entity may avoid liability for a dangerous condition of property if it can establish that the injury was caused by an approved plan or design. To establish the immunity, the entity must establish: ' " '(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design.' " [Citations.]' [Citation.]" (Laabs, supra, 163 Cal.App.4th at p. 1262.) "The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. [Citation.] The third element, substantial evidence of reasonableness, requires only evidence of solid value that reasonably inspires confidence. [Citation.]" (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550 (Alvis).) The Legislature has determined that the third element—the reasonableness of the design—is to be determined by the court, rather than a jury. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 72.)
Section 830.6 states in relevant part: "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."
" '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. [Citation.] " ' "[T]o permit reexamination in tort litigation of particular discretionary decisions 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." ' " ' " (Laabs, supra, 163 Cal.App.4th at p. 1262, citations omitted.)
B. Application
Jolin argues that the County failed to establish as a matter of law the first element of design plan immunity—a causal relationship between the plan and the accident—because the evidence presented at trial "raised a material question of fact" as to whether the County placed the reverse curve sign approximately 500 feet before the curve, as recommended in the 1987 curve review. Jolin's argument is not persuasive.
At trial, Goralka testified that the 1987 curve review recommended that the reverse curve sign be placed "about 500 feet west of the curve, before the curve, " and that the sign was moved in accordance with this recommendation. In addition, the County lodged the declarations of two experts, Edward Phillips and Arnold Johnson, each of whom stated that he measured the distance from the reverse curve sign to the beginning of the curve as being approximately 500 feet.
Jolin cites two items of evidence in support of his assertion that there was a triable issue of fact as to whether the County placed the reverse curve sign at the location recommended in the 1987 curve review. First, Jolin claims that Goralka testified that he did not personally measure the distance from the reverse curve sign to the beginning of the curve. Goralka testified that he did not measure the distance from the sign to the curve because the sign's location was documented in the County's "sign index." More importantly, the County offered the declarations of two experts who did personally measure the distance from the reverse curve sign to the beginning of the curve as approximately 500 feet. Jolin fails to discuss these declarations on appeal.
Jolin also notes that Officer Chell wrote in his traffic collision report that the reverse curve sign was located approximately "700 feet prior to the left curvature...." However, Chell clarified at trial that the 700-foot measurement represented the distance from the reverse curve sign to the middle of the curve:
"[County's attorney]: And what do you recall, if anything, about where you started your measurement of that sign in relationship to the curve?
"[Officer Chell]: When I took the measurement, I was in the middle of the curve. As I normally start measuring from curve to posted sign, posted black and yellow warning sign, I started in the middle or the bend of the curve to that sign.
"[County's attorney]: All right. And that's where you came up with the 700-foot distance?
Jolin also cites excerpts of Officer Chell's deposition in which Chell discussed this issue. However, Chell's deposition testimony does not support a finding that the sign was placed 700 feet before the beginning of the curve. For example, Chell testified in his deposition as follows:
In light of the evidence discussed above, no reasonable fact finder could have found that the sign was 700 feet from the beginning of the curve. Accordingly, we reject Jolin's argument that the County failed to establish that it placed the reverse curve sign approximately 500 feet before the curve as recommended in the 1987 curve review.
Jolin also claims that the County failed to establish the second element of its design plan immunity defense, namely, that it provided discretionary approval of the recommendation for placement of the reverse curve sign prior to the sign being moved. We disagree. Goralka expressly testified that the County approved the recommendation for placement of the reverse curve sign contained in the 1987 curve review priorto the sign being moved:
Jolin does not raise any contention with respect to the third element of design plan immunity, the existence of substantial evidence supporting the reasonableness of the County's design.
"[County's attorney]: From Exhibit 3 and 4 [the 1987 curve review], is it true, then, that it was the recommendation by the engineers conducting these studies that the curve warning sign... be moved essentially 500 and a few feet further west?
As noted in part II.B., ante, Goralka also testified that, prior to the 1987 curve review, the reverse curve warning sign had been placed approximately 20 feet past the beginning of the curve. When the trial court expressed surprise that the sign had previously been placed past the beginning of the curve, Goralka explained that "the beginning" of a curve is "when the curve first departs from the tangent, " which can be "very gradual, " and the "bend of the curve can be farther down the road."
"[Goralka]: Yes, that's correct.
"[County's attorney]: And was this recommendation approved prior to the sign[] actually being moved?
"[Goralka]: Yes."
Accordingly, we conclude that the trial court properly determined that the County established the affirmative defense of design plan immunity.
Although the parties proceeded in both the trial court and in this court on the assumption that the determination of the first two elements of design plan immunity—whether there is a causal relationship between the plan and the accident and whether the governmental entity gave discretionary approval of the plan prior to construction—are pure questions of law in all cases, that is true only in cases in which there is no triable issue of material fact with respect to these elements. (Alvis, supra, 178 Cal.App.4th at p. 550.) In this case, for the reasons stated in the text, there is no triable issue of material fact with respect to either element. In any event, we need not consider any issues with respect to the procedural manner by which the case proceeded in the trial court because Jolin does not raise any contention on appeal with respect to any such issue.
IV.
DISPOSITION
The judgment is affirmed. Jolin is to bear costs on appeal.
WE CONCUR: NARES, Acting P. J., McDONALD, J.
"[Jolin's attorney]: So my question again would be... do you believe that it is an accurate statement that if you were to start at the sign and roll 700 feet toward the accident scene, you would be at the beginning of the left curvature sign—or beginning of the left curve as the [traffic collision] report states?
"[Officer Chell]: You would be in the curve. I don't know exactly if it's at the start of the curve, but you would be in the curve or starting the curve. I'm—it would be hard to say without rolling it out and seeing exactly where you are."