Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo Super. Ct. No. CV050597, Barry T. La Barbara, Judge
Brian Brandt; Kenneth G. Nellis and Irene Moy for Plaintiff and Appellant.
Bruce A. Behrens, Chief Counsel, David Gossage, Deputy Chief Counsel, Irene B. Moy, Max A. Truax, Kenneth G. Nellis for Defendant and Respondent.
GILBERT, P.J.
Plaintiff Allan J. Meade appeals a summary judgment in favor of defendant State of California, Department of Transportation (hereafter referred to as the State) on his negligence action. Meade claimed the State maintained a dangerous highway condition by not erecting a median barrier to prevent him from crossing over the center line and colliding with oncoming traffic. We conclude the State has immunity for its highway design. (Gov. Code, § 830.6.) Meade did not meet his burden to show a triable issue of fact. We affirm.
FACTS
On July 26, 2004, Meade drove northbound on highway 101 near the Santa Barbara Road exit. He had a seizure and lost consciousness. He awoke and realized he was driving on the right shoulder. He turned the wheel to the left. His car cut diagonally across the two northbound lanes. Highway 101 has a wide median center strip separating the northbound and southbound lanes. There is no median barrier on this strip.
Meade's car crossed the center median into oncoming southbound traffic and collided with another vehicle. He was injured. A California Highway Patrol officer determined Meade made an unsafe turn. Meade told the officer that he turned the wheel "to the left . . . to gain control of his car."
Meade sued the State for negligence alleging "the site where the accident occurred . . . was in an unreasonably dangerous condition in that . . . there was no barrier in the median strip that would prevent vehicles from traversing [it] . . . and colliding with traffic in oncoming lanes." He said the State "had actual or constructive notice" of this dangerous condition, but took no corrective measures.
The State claimed design immunity. (Gov. Code, § 830.6.) It said state highway officials had approved a reasonable highway design.
The Motion for Summary Judgment
The State moved for summary judgment. It's engineering expert, Kenneth Berner, declared that when the highway was built the state highway engineer determined that a median barrier was not required at the location where the accident occurred. The highway design was "in conformity with the State's standards." The State conducted periodic engineering reviews and median barrier studies. It erected median barriers north and south of the accident site because of increased traffic volume and increased accidents in those areas. To determine if a barrier is needed the State uses traffic volume and accident statistics called "volume/width warrant[s]" and "accident warrant[s]." A median barrier may be erected if an area meets or exceeds these statistical warrants.
Berner said the area where Meade's accident took place was safe. It never met either warrant standard. "[B]etween . . . 1991 and July 5, 2004, almost 175 million vehicles traveled through" this area. But there were "only 4 cross median accidents" in 13 years. "Therefore, [a] median barrier was never justified at the subject location based on the accident history . . . ."
Nor was a median barrier required based on "volume/width warrant" standards. Berner analyzed the traffic volume in this area for the years 1991 to 2004. Over that period the volume never met the minimum 40,000 daily car volume standard, which is the threshold to consider whether a median barrier is necessary.
Meade relied on the declaration of Harry J. Krueper, a traffic engineer, who said that in 2002 the State planned to erect a median barrier in the area where the accident occurred. But it "did not follow thorough with the installation." He opined that "a properly installed median barrier . . . would have prevented a cross-median collision" and Meade's car "would probably have glanced off a properly installed . . . barrier" reducing the severity of the impact.
Krueper said, "the accident rate in this area had been steadily increasing." He prepared a chart showing seven accidents between 1996 and 2003. He said that in the five years prior to 2002 there were four accidents. This exceeded the yearly safety standard of .50 accidents per mile.
Krueper claimed a barrier was also required because of traffic volume. He said, "[t]he average daily traffic on this section of highway was between 38,000 and 39,000 vehicles." "A traffic volume of more than 39,000 vehicles per day would have satisfied the volume-width warrant for installation of [a] median barrier."
The trial court found Meade provided "no adequate evidence to overcome the State's statutory design immunity." It said Krueper's chart was misleading because it included "areas north of the accident location." It said, "[c]ompared to the State's specific accident analysis at the actual accident location" Krueper's "generalities" were "insufficient to prove the existence of a changed physical condition at the accident [site]."
DISCUSSION
I. Summary Judgment
A. Trial Court Rulings
Meade contends the trial court made numerous errors. But "'[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers . . .'" to determine if summary judgment is appropriate. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) "[W]e take the facts from the record that was before the trial court when it ruled on that motion." (Ibid.)
B. Triable Issues of Fact
Meade contends there were triable issues of fact and the State did not meet its burden to show it had design immunity. "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . ." (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 850.) "All that the defendant need do is to 'show[] that one or more elements of the cause of action . . . cannot be established' by the plaintiff" or that "'there is a complete defense' thereto." (Id., at pp. 850, 853.) If the defendant "carries [its] burden of production," the plaintiff "is then subjected to a burden of production . . . to make a prima facie showing of the existence of a triable issue of material fact." (Id., at p. 850.) But if the plaintiff's evidence does not support a reasonable inference that the plaintiff is "more likely than" not to prevail, summary judgment for the defendant is appropriate. (Id., at p. 857.)
"A public entity may be liable for injuries caused by a dangerous condition of its property." (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 233.) The State has immunity from liability for accidents related to the design of its highways where there was "discretionary approval of the plan or design prior to construction" and the design was reasonable. (Gov. Code, § 830.6; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806.) But "'[d]esign immunity does not necessarily continue in perpetuity . . . .'" (Mirzada, supra, at p. 806.) The State may lose its immunity where, (1) "the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition," (3) it had a reasonable time to obtain funds and make repairs but did not do so, or (4) if it was impossible to make repairs or it lacked funds to do so, it did not give warnings about the condition. (Ibid.)
"'Median barriers result in a trade-off. They prevent nearly all cross-median accidents, but usually result in an overall increase in accidents and injuries. A median barrier is a fixed object which, when hit, can cause serious injury either by direct impact or by deflecting vehicles back into traffic. . . . '" (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at p. 804.)
"'When a freeway is built without a median barrier, the State monitors it annually to determine whether subsequent placement of a median barrier may result in a safety benefit. Each year, through its Median Barrier Monitoring System, a sophisticated computer program,' the State reviews the entire State highway system and identifies those locations that meet the accident warrant [the index of the frequency of accidents] and the traffic volume/width warrant [index of traffic volume to median width]." (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at p. 805.) But the State is not liable simply because the number of accidents or the traffic volume is sufficient to meet the warrant standards to build a median barrier. (Id., at p. 804.)
The State contends it met its burden to show it had design immunity. We agree. Berner said the highway design was reasonable when the plan was approved. The State engineers exercised "sound engineering judgment" in not erecting barriers because of the "extremely low cross-median accident history."
Meade contends that the burden remained with the State to prove that it did not lose its immunity. Once the State bears "the burden of establishing . . . its design immunity defense in support of its summary judgment motion" the plaintiff bears "the burden of producing substantial evidence of a loss of design immunity." (Weinstein v. California Department of Transportation (2006) 139 Cal.App.4th 52, 60.) But even if this were not the case, the result would not change. Berner said that based on traffic volume and accident statistics there were no changed or dangerous conditions at the accident site which required erection of barriers. These facts show that the State did not lose its design immunity. (Mirzada v. Department of Transportation, supra, 111 Cal.App.4th at p. 806.)
The issues of design immunity and loss of design immunity as presented here are so intertwined that it is impossible to discuss one without the other. It is therefore appropriate for this court to consider as did the trial court the parties' declarations and exhibits as well as the State's separate statement of facts.
"[T]he trial court has discretion to consider evidence not referenced in the moving party's separate statement and grant summary judgment . . . despite an inadequate separate statement." (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131 Cal.App.4th 1466, 1477-1478.) So do we. Meade had notice of the factual issues relevant to the State's motion. He knew the State was raising design immunity and claiming it did not lose immunity because of traffic volume or accident statistics. Both parties presented evidence on loss of design immunity, an issue closely connected to the design immunity defense.
Meade contends that he met his burden to show there were triable issues of fact. We disagree. Krueper opined that the State should have erected a barrier because of the traffic volume. But where the State presents statistical evidence showing that the traffic volume, or "[t]raffic volume/width warrants," are insufficient to require median barriers, the plaintiff must present facts to rebut that evidence to show a triable issue of fact. (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at pp. 804, 808.) Krueper did not controvert Berner's chart which showed the daily traffic volume from 1991 through July of 2004 never reached the required 40,000 volume threshold. The highest volume, 39,000, was in 2003. But for 2004 that volume dropped to 38,000 cars.
Krueper merely opined that, "[a] traffic volume of more than 39,000 vehicles per day would have satisfied the volume-width warrant for installation of [a] median barrier." But such a conclusory statement is insufficient to establish a triable issue of fact. (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at p. 808.) He did not show there was a substantial increase in the traffic volume which made the accident site dangerous. (Ibid.) Here, the daily traffic volume in 1991 was 32,500 and it did not rise to 38,000 until 2000. Between 2000 and 2004 the daily traffic volumes were stable, e.g., 38,000, 38,500, 38,500, 39,000 and 38,000. By contrast in Mirzada, the traffic volume substantially increased from 21,000 cars per day in 1972 to 69,000 cars per day in 1998. But even so the Court of Appeal said, "[a]n increase in traffic alone, however, is insufficient to establish the loss of design immunity." (Ibid.) "Certainly, traffic on the established freeways has increased along with the population." (Ibid.) "Without more, an increase in traffic proves nothing." (Ibid.)
Krueper opined that a median barrier was required based on the frequency of accidents using the .50 accidents per mile per year standard. But he did not controvert Berner's statistics which showed that: 1) in a 13-year period there were only 4 cross median accidents at the site of this accident, and 2) that 175 million cars had passed by that area during that period. Those statistics showed an accident rate far below the .50 accidents standard.
To support his opinion, Krueper attached a chart showing seven accidents which occurred between February 21, 1996, and January 28, 2003. He claimed there were four qualifying accidents "within the required five-year" period prior to 2002. But his chart included accidents which occurred outside the accident site mentioned in Meade's complaint. Meade pled that there was an "unreasonably dangerous condition . . . at the site where the accident occurred." (Italics added.) The accident took place at post mile marker 41.1. This was within a 2.3-mile stretch of Highway 101 which did not have a median barrier (post mile 38.96 to 41.30.) This is the "gap" area which Meade claimed the State should have filled with a median barrier. Krueper used accidents outside this gap area to support his opinion. But "'[e]vidence of changed conditions must be evidence that physical conditions at a specific location have changed in such a manner that the original design has created a dangerous condition of which the entity has notice.'" (Mirzada v. Department of Transportation, supra, 111 Cal.App.4th at p. 808, italics added.) Accident statistics from areas other than the accident site are irrelevant and such evidence is insufficient to show a triable issue of fact. (Ibid.)
As the State notes, when the accidents outside the gap area are excluded from Krueper's chart, the result is only one accident within that five-year period. But even that accident, which occurred in 2001, was not similar to Meade's. It occurred on the opposite side of the freeway with vehicles moving in a southbound direction. Krueper's description of that accident did not state that it involved a cross-median collision with northbound traffic.
In his opposition to summary judgment Meade attached the deposition of state highway expert Nevin Sams who said the State reviewed the "characteristics of the roadway" before determining that a barrier was not needed. But Krueper did not state facts showing that there were physical conditions, such as dangerous curves, elevations or sight obstructions, which would increase the risk of cross median accidents or make that area unsafe. (City of San Diego v. Superior Court (Hanson) (2006) 137 Cal.App.4th 21, 31-32.) Nor did he show why the State would be on notice that any significant percentage of motorists would use Meade's dangerous left turn maneuver from a highway shoulder.
Krueper said that more than two years before the accident the State planned to build a median barrier at the site where the accident took place. But Berner explained that a median barrier was built in the gap area shortly after this accident as part of the State's discretionary "gap closure policy." Under this policy a new barrier between two existing median barriers may be "installed without meeting accident or volume/width study warrants." "[W]e disregard the fact that Caltrans scheduled installation of a median barrier in an area which included plaintiff's accident site. Such evidence does not constitute an admission that the lack of barrier created a dangerous condition or that the conditions had changed in a way that ended the design immunity." (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at p. 808.)
Krueper opined that had the State erected a barrier Meade's injuries would be less severe because he would have "glanced off" the barrier. But this was conclusory speculation. He did not show how the facts of this accident would yield such a result. Meade was traveling at high speed on the right shoulder when he turned the wheel left. His car cut diagonally across two northbound lanes before crossing the median and driving into oncoming traffic. A CHP diagram shows Meade's car entered the median area at almost a 90 degree angle with the median. Had there been a barrier Meade would have hit it head on. That type of collision, "'can cause serious injury either by direct impact or by deflecting vehicles back into traffic. . . . '" (Mirzada v. Dept. of Transportation, supra, 111 Cal.App.4th at p. 804.) Moreover, Meade's claim that a barrier would have prevented an accident is insufficient because he did not show that the highway design or road conditions were dangerous. (People ex. rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)
We have reviewed Meade's remaining contentions and conclude he has not shown reversible error.
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur: COFFEE, J., PERREN, J.