Roadway Design Litigation

By Kevin F. Calcagnie

Introduction

Any personal injury practitioner pursuing an action against a public entity based upon the dangerous condition of a roadway quickly discovers that the normal rules do not necessarily apply. There is an entire body of law relating to the issues in roadway design litigation, which is unlike that involved in the typical action against a landowner. There are also several potential legal hurdles to proving liability, which can be used to defeat the plaintiff in the early stages as well as at trial. The following is an overview of the essential statutory and case authorities governing roadway design cases.

Statutory Basis for Liability

Under the California Tort Claims Act, a public entity may be liable for injuries caused by dangerous conditions of its property in either of two respects: (1) The creation of the condition by a negligent or wrongful act or omission of an employee of the public entity within the scope of his or her employment; or (2) The failure to take measures to protect against the dangerous condition after notice. (California Government Tort Liability Practice, Third Edition, p.339 [C.E.B. 1992])

California Government Code Section 835 provides the basis for liability of a public entity for maintaining a dangerous condition of its property. That section provides as follows:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Under the provisions of this section, a public entity may be held liable for failing to provide safeguards or failing to warn against a dangerous condition upon its roadways. (Ducey v. Argo Sales Company (1979) 25 Cal.3d 707, 717, 159 Cal.Rptr. 835.) This is true irrespective of any so-called design immunity based upon the alleged reasonable approval of the roadway’s design. (Cameron v. State of California (1972) 7 Cal.3d 318, 327-9, 102 Cal.Rptr. 305; Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91, 135 Cal.Rptr. 127; Fluornoy v. State of California (1969) 275 Cal.App.2d 806, 811, 80 Cal.Rptr. 485)

Dangerous Condition

Proof of a dangerous condition does not require a physical defect:

“‘Condition of property’ also has been defined as public property that is not damaged or in a deteriorated condition, and that is neither structurally unsound nor physically defective. Such property may nevertheless be in a dangerous condition because of the design of the location or improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use. See Warden v. City of Los Angeles (1975) 13 Cal.3d 297, 118 Cal.Rptr. 287. These conditions can create a substantial risk of injury to foreseeable careful users.”

(California Tort Liability Practice, supra, at p.308)

An example of this is found in the Ducey case, supra, wherein the California Supreme Court held that the State of California could be liable for a failure to construct a median barrier, even though the roadway itself was not hazardous.

In order to prove that a dangerous condition exists on a public street or highway, a Plaintiff is not required to prove that there have been prior complaints or prior traffic accidents at the subject location. (Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91, 135 Cal.Rptr. 127.)

A public roadway need not be immediately dangerous in order to be inherently dangerous. The defect and danger are no less inherent merely because the anticipated conditions which activate the defect and danger are present only occasionally. (Fackrell v. City of San Diego (1945) 26 Cal.2d 196, 204-5, 157 P.2d 625) Moreover, the testimony of a highway design expert alone can provide substantial evidence of a dangerous condition. An example is found in Erfurt v. State of California (1983) 141 Cal.App.3d 837, 190 Cal.Rptr. 569. In Erfurt, a personal injury action arising from a single vehicle collision, the Plaintiff alleged that as she was traveling up a highway the sun suddenly shone directly in her eyes, that she looked down to the side of her car but found no highway markings to guide her, or any warnings to indicate the freeway was splitting off into two parts. As a result, her vehicle struck a guardrail in front of a concrete pillar.

The Court of Appeal affirmed the jury verdict for Plaintiff, stating:

“The State asserts the evidence did not show a dangerous condition because plaintiff only presented ‘opinion testimony of a different striping plan and warning devices’. The State argues that the lack of these things is not proof of a dangerous condition – at best the lack was only probative of one engineer’s opinion on how the roadway could have been made safer. We do not agree.

Plaintiff’s expert, Krueper, testified that the combination of improper ‘channeliza- tion’ with the absence of devices to properly warn of and guide a driver around the abutment in the middle of the freeway constituted a dangerous condition at certain times. The State’s characterization of Krueper’s testimony as simply presenting an ‘alternative design of traffic control devices which he thought would have obviated the hazard due to sun glare’ is not well taken. Krueper testified that the pattern of traffic control itself was part of the dangerous condition. His testimony constitutes substantial evidence of a dangerous condition. (Citations)”

(141 Cal.3d at 843)

Whether a condition is dangerous within the meaning of Government Code Section 835 is a question of fact for the jury to decide. (Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 802, 205 Cal.Rptr. 842)

Should a public entity seek summary judgment as to the existence of a dangerous condition, the following should be cited: Cameron v. State of California (1972) 7 Cal.3d 318, 102 Cal.Rptr. 305 (non-suit reversed, because failure to warn motorist about uneven and inconsistent banking of “S” curve was issue for jury’s determination; Ventura v. Camarillo (1978) 80 Cal.App.3d 1019, 144 Cal.Rptr. 296 (summary judgment for city reversed, where circumstances created a triable issue as to dangerous nature of entrance to dead-end street); Barone v. San Jose (1978) 78 Cal.App.3d 284, 144 Cal.Rptr. 836 (summary judgment for city reversed, where triable issue of fact was presented as to dangerous character of sidewalk crack); Harland v. State of California (1977) 75 Cal.App.3d 475, 142 Cal.Rptr. 201 (jury verdict for plaintiff affirmed where dangerous condition of bridge without median barrier was supported by competent expert testimony); Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 135 Cal.Rptr. 127 (failure to warn motorists of need to reduce speed to negotiate sharp curve held to create issue of fact precluding summary judgment for city); Briggs v. State of California (1971) 14 Cal.App.3d 489, 92 Cal.Rptr. 433 (judgment for plaintiff affirmed on finding of fact that highway exposed to periodic mud slides from adjacent property was dangerous); Bakity v. Riverside (1970) 12 Cal.App.3d 24, 90 Cal.Rptr. 541 (intersection with view of approaching cars obscured by trees; jury verdict for plaintiff upheld); Vinson v. Ham Brothers Construction, Inc. (1970) 7 Cal.App.3d 990, 87 Cal.Rptr.12 (issue whether lights, barricades, and other warning devices were sufficient to obviate danger to motorists from street excavation held for jury to resolve, directed verdict for city reversed); Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 57 Cal.Rptr. 176 (jury determination that street crossing was dangerous); Branzel v. Concord (1966) 247 Cal.App.2d 68, 57 Cal.Rptr. 167 (question of fact whether power lines near model plane flying field made field dangerous).

Third Party Negligence

Public entities invariably argue that they are not liable for negligent use of their property, but only “careful use”. This argument is based upon California Government Code §830(a), which mentions “used with due care.” However, California decisional law is to the contrary. It makes no difference that third party negligence may have been a factor in the Plaintiff’s injuries. A dangerous condition created by a public entity may be the legal cause of an injury, even though the negligent act of another person has concurred in producing the injury.” (Gardner v. City of San Jose (1967) 248 Cal.App.2d 798, 805, 57 Cal.Rptr. 176; Ducey v. Argo Sales (1979) 25 Cal.3d 707, 719, 159 Cal.Rptr. 835.) In Ducey, supra, the State contended that the absence of a cross median barrier could not properly be regarded as creating a substantial risk of injury when the freeway was being used with due care. Most cross median accidents, the State argued, resulted from the operation of motor vehicles by freeway users in a negligent fashion. The Court rejected this position, stating:

“Although it may well be that many, perhaps even most, cross median accidents result from the negligence of one or more drivers, the evidence in the instant case was clearly sufficient for the jury to conclude that the lack of a median barrier created a substantial risk of injury even in the absence of negligent conduct.”

(25 Cal.3d at 719)

Similarly, in Bakity v. County of Riverside (1970), 12 Cal.App.3d 24, 90 Cal.Rptr. 541, an action brought by a Plaintiff who was injured by another automobile which had failed to stop at a stop sign, the Court stated:

“Under the Tort Liability Act it is not necessary for plaintiff to establish that the dangerous condition was the sole cause or exclusive cause of the accident. (California Government Tort Liability (Cont.Ed.Bar) p.199) Negligence of a third person does not, as a matter of law, exonerate the public entity. (Callahan v. City and County of San Francisco, 249 Cal.App.2d 696, 701 [59 Cal.Rptr. 639].) The intervening or concurrent negligent act of a third person does not break the chain of causation provided the dangerous condition contributed in some way to the injury (Citations).”

(12 Cal.App.3d at 32)

These decisions, and others, make it clear that the negligence of a third party does not relieve a public entity from liability. (See also Hurley v. County of Sonoma (1984) 158 Cal.App.3d 281, 287, 204 Cal.Rptr. 621.) As the Court stated in Matthews v. State of California ex. rel. Department of Transportation (1978) 82 Cal.App.3d 116, 121, 145 Cal.Rptr. 443:

“Thus, if the condition of the property was such that it created a substantial risk of injury to a person using the property with due care, an injured plaintiff is not required to prove that the driver of the third party vehicle was exercising due care at the time of the injury. That is, the third party’s negligent use does not negate the existence of a dangerous condition.”

Likewise, any alleged negligence of the injured party is irrelevant to a determination of whether a dangerous condition exists:

“So long as a plaintiff-user can establish that a condition of the public property creates a substantial risk to any foreseeable user of the property who uses it with due care, the plaintiff has successfully alleged the existence of a dangerous condition, within the meaning of Government Code Section 830, subdivision (a), regardless of the plaintiff’s personal lack of due care. Further, ‘due care’ does not as a matter of law include obeying traffic laws. Therefore, although a public entity may assert the negligence of a plaintiff-user as a defense, it has no bearing on the determination of a dangerous condition in the first instance.”

(Alexander v. State of California ex. rel. Department of Transportation (1984) 159 Cal.App.3d 890 (Hn. 5a, 5b), 205 Cal.Rptr. 758.)

Actual and Constructive Notice

It is important to note that neither actual nor constructive notice of a dangerous condition is required to establish liability where the entity has created the dangerous condition. (Government Code section 835(a)) However, even where a public entity can establish that it did not create the dangerous condition, it may still be held liable where it had actual or constructive notice of same.

According to Government Code section 835(b) and B.A.J.I. 11.53, a public entity is liable for a dangerous condition it did not create if it had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. B.A.J.I. 11.56 sets forth the requirement for proof of actual notice:

“A public entity had actual notice of a dangerous condition if its officer or employee while acting within the course and scope of his authority, had notice or actual knowledge of the existence of the condition and knew or should have known of its dangerous character, which notice or knowledge the officer or employee, in good faith and in the exercise of ordinary care and diligence ought to have communicated to the entity.”

Actual notice may be established by virtue of the fact that a traffic investigation has been conducted on a particular portion of a roadway. In Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, the court observed that a traffic investigation had provided the city with notice of a dangerous condition:

“The very fact that respondent through its director of public works requested an investigation as to the necessity of posting a speed limit along the new section of Lynn Road indicates that there was a recognition of two facts: First, the speed along the roadway was presently unrestricted, or subject only to the then-existing legal limit of 65 miles per hour; second, that there might be some necessity to limit this speed in order to ensure that the curve be safely negotiated.”

(65 Cal.App.3d at 91-2)

Actual notice may also be established through evidence of other accidents occurring at the location in question. In Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 71 Cal.Rptr. 275, a wrongful death action involving an intersection which was claimed to be in a dangerous condition, a nearby resident testified that he knew of at least half a dozen accidents that had occurred at the intersection. On cross examination he admitted he had not actually seen any of the accidents occur and was not sure when they happened or how many there were, and further stated that in some of them intoxication of drivers might have played a part. Although the County contended on appeal that the evidence was inadmissible, the Court of Appeal disagreed, holding that the evidence was properly admitted on the issue of notice of a dangerous condition.

Moreover, other Courts have held that actual notice of a danger may be established by the mere posting of a warning sign by the entity responsible for the roadway. (Levine v. City of Los Angeles (1977) 68 Cal.App.3d 481, 489, 137 Cal.Rptr. 512)

In the absence of actual notice, constructive notice is established if the condition has existed for such a period of time and was of such an obvious nature that a public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Government Code Section 835.2(b))

Even where a public entity has not discovered any danger through investigation, and even when a public entity has not received any notice of complaints or traffic accidents, the public entity may still be found to be on constructive notice of a dangerous condition. (Anderson v. City of Thousand Oaks, supra, 65 Cal.App.3d at 91) A public entity will be charged with constructive notice of substantial defects which have existed for some time, and which are so conspicuous that a reasonable inspection would have disclosed them. (Stanford v. Ontario (1972) 6 Cal.3d 870, 101 Cal.Rptr. 97):

“Since the issue is one of fact, evidence tending to show that reasonable inspection would not have discovered the dangerous condition, or that the existing inspection system failed to discover it in the exercise of due care, ordinarily is not conclusive. The trier of fact may still determine from the conspicuous character and duration of the dangerous condition, considering all circumstances, that the entity should have had notice.” (California Government Tort Liability Practice, supra, p. 349)

In Erfurt v. State of California (1983) 141 Cal.App.3d 837, the Plaintiff’s vehicle struck a guardrail in front of a concrete pillar because as she was traveling up a highway just before sunrise, she reached the crest of an uphill climb and the sun suddenly shone directly into her eyes. The Plaintiff contended that the highway was in a dangerous condition because of failure to properly warn of and guide a driver around the abutment of the freeway and the hazard caused by the glare of the sun for 20 days of the year, from 15 to 25 minutes a day.

Appealing from a jury verdict for the Plaintiff, the State contended that the Plaintiff had failed to prove notice of the alleged dangerous condition. The Appellate Court disagreed, holding that the continued existence of the dangerous condition itself can establish constructive notice:

“While the particular dangerous condition in this case existed only 20-some days of the year, it had been in existence for over ten years, since the construction of the highway in 1966. Under such circumstances the jury could reasonably find constructive notice of the dangerous condition. It is well settled that constructive notice can be shown by the long continued existence of a dangerous or defective condition, and it is a question of fact for the jury to determine whether the condition complained of has existed for sufficient time to give the public agency constructive notice. (Citations) The question of whether the dangerous condition should have been discovered by reasonable inspection and whether there is adequate time for preventive measures is properly left to the jury. (Citation)…”

(141 Cal.App.3d at 844-5)

Design Immunity

Government Code § 830.6 provides the basis for the so-called “design immunity”:

“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 improvement to, public property where the 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…”

Courts interpreting the scope of this immunity have held that it may be applied only under very narrow circumstances. The California Supreme Court has declared that immunities based upon discretionary authorization should be strictly construed, with the immunity being the exception rather than the rule. In Ramos v. County of Madera (1971) 4 Cal.3d, 685, 692, 94 Cal.Rptr. 421, the Court stated:

“We must begin with the well-settled notion that in government tort cases ‘the rule is liability, immunity is the exception’. (Citation) it would be unjust in some circumstances to require an individual injured by official wrongdoing to bear the burden of his loss rather than distribute it throughout the community. (Citation) Accordingly, courts should not casually decree governmental immunity…(Citation) Unless the legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.”

(4 Cal.3d at 692)

In keeping with this principle, Courts confronted with claims of highway design immunity based on Section 830.6 have placed strict standards on the burden which must be carried by a Defendant. In order to assert such a defense, the Defendant must establish:

“First, the approval of design in advance of construction by a legislative body or officer exercising discretionary authority; second, a court finding of substantial evidence of a design’s reasonableness; and three, a causal connection between the plan or design and the accident. (Citations) It is well established that the defendant public entity has the burden of pleading and proving the defense of design immunity and each of the essential elements of it, and that an eventual failure to prove any of the enumerated ingredients is fatal to the applicability of that defense. (Citations)”

(Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 574, 136 Cal.Rptr. 751)

An example of the heavy burden placed upon public entities is found in Levin v. State of California (1983) 146 Cal.App.3d 410, 194 Cal.Rptr. 223. In Levin, a wrongful death suit involving a head-on collision, the Decedent’s heirs brought an action alleging that the absence of a shoulder and guardrails constituted a dangerous condition. The Trial Court granted summary judgment based on the assertion by the State that the design had been approved in advance, and that the design was reasonable. The Appellate Court reversed, holding that there were triable issues as to the design immunity since there was no showing that the Defendant’s employee had actually considered the consequences of the design:

“As our Supreme Court pointed out in Cameron v. State of California (Citation) the rationale of the design immunity defense is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design. An actual informed exercise of discretion is required. The defense does not exist to immunize decisions that have not been made. Here, as in Cameron, supra, the design plan contained no mention of the steep slope of the embankment. The state made no showing that Legarra, who alone had the discretionary authority, decided to ignore the standards or considered the consequences of the elimination of the eight feet shoulder. It follows that the state also failed to establish the second element of the defense.”

(146 Cal.App.3d at 418; Emphasis added)

The Court further noted that there was a conflict between Plaintiff’s experts and the State’s experts as to the reasonableness of the design:

“Given the silence of the state’s experts as to the embankment and its slope, there is no evidence that reasonably inspires confidence or is of solid value (Citation) as to the third element of the defense. Further, the mere fact that an expert witness testifies that in his opinion, a design is reasonable does not make it so. Here the record reveals a conflict between Levin’s experts and the State’s as to the reasonableness of the design.”

(146 Cal.App.3d at 418)

In Mozzetti, supra, the Appellate Court rejected an asserted claim of design immunity under 830.6, holding that the opinion of Plaintiff’s expert refuted the reasonableness of the design:

“At the same time, the record cast grievous doubts on the reasonableness of the project design as well. As noted earlier, engineer Hauke (plaintiff’s expert) testified that the state failed to comply with reasonable rules and good engineering practices in designing the project….In addition, Mr. Hauke expressed the view that the failure of the city to consider the existing topography in designing the project was also violative of good engineering practices, as well as the adherence to a ten-year storm design considered by the city.”

(67 Cal.App.3d at 524-5)

The Court also concluded that the evidence presented by the Defendant was insufficient to demonstrate advance authoriza- tion, since it lacked requisite details:

“When tested by the foregoing standards, an independent review of the record reveals that the evidence falls short of showing that the plan or design of the project was approved in advance of construction by the City Council or an authorized officer. Although there was testimony to the effect that the mall project was approved by the City Council, the evidence is uncontradicted that the one-page surface drawing so approved did not show the requisite details of the road design, that there were several changes during the construction which materially affected the respondent’s property; and that no satisfactory evidence was introduced that such changes were approved by either the City Council or a public employee possessing discretionary authority.”

(67 Cal.App.3d at 574)

Changed Conditions

Aside from the issue of the ability of the public entity to meet its burden of showing approval and reasonableness of the design of the roadway in question, design immunity is inappli-cable where conditions have changed since the roadway was originally designed. Thus, even if the public entity proves in a given case that the defense of design immunity should initially attach, a further issue remains. The immunity provided by the statute is not perpetual, and the defense of design immunity can be lost as the result of changed conditions. (Harland v. State of California (1977) 75 Cal.App.3d 475, 484, Fn. 3)

In Baldwin v. State of California (1972) 6 Cal.3d 424, 99 Cal.Rptr. 145, the Court rejected a design immunity defense in a case involving a state highway, based upon the fact that conditions had changed since the original design, including a change in traffic volume:

“The clear teaching of Weiss is that design immunity persists only so long as conditions have not changed. Having approved the prior design, the governmental agency may not, ostrich-like, hide its head in the blue- prints, blithely ignoring the actual operation of the plan. Once the entity has noted that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard. Since the legislature explicitly adopted the rule of Weiss, we conclude that it did not intend that the design immunity provided by Section 830.6 would be perpetual.”

(6 Cal.3d, 434)

The Court went on to say that such notice of the dangerous condition under changed physical conditions may be either actual or constructive under Section 835(b). (6 Cal.3d, 434 at Fn. 8)

A similar example is found in Bane v. State of California (1989) 208 Cal.App.3d 860, 256 Cal.Rptr. 468, wherein the Court stated:

“Design immunity is intended to exist only so long as the surrounding physical conditions, presumably considered at the time of initial design approval, have not changed.”

(208 Cal.App.3d at 869)

“Trap” Exception

California Government Code Section 830.8 provides:

“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.”

According to the Law Revision Comment to Section 830.8:

“This section prevents the imposition of liability based on the failure to provide traffic regulatory or warning signals or devices of a type not listed in Section 830.4, but liability may exist for failure to provide such a signal or device when the condition constitutes a trap to a person using the street or highway with due care.”

This section creates what is known as the “trap exception” to design immunity, and it imposes liability, irrespective of the existence of design immunity, where the public entity has failed to warn of a dangerous condition which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. According to California Tort Liability Practice, supra:

“The ‘trap exception’ of Government Code Section 830.8, has been held to preclude application of the ‘design immunity’ provided by Government Code Section 830.6, even though the latter immunity, in terms, is declared to override any liability ‘under this chapter,’ i.e., chapter two of the Tort Claims Act, which provides generally for dangerous condition liability and includes Government Code Section 830.8. Thus, even if the source of the danger is inherent in the approved plan or design of the improvement, and therefore appears to be non-actionable under the ‘design immunity’, the entity’s failure to post adequate warning signs may result in liability under Government Code Section 830.8. Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 135 Cal.Rptr. 127 (sharp curve on highway); Fluornoy v. State (1969) 275 Cal.App.2d 806, 80 Cal.Rptr. 485 (bridge surface that frequently became icy; absence of warning signs held to create issue of fact precluding summary judgment based on design immunity). See also Cameron v. State (1972) 7 Cal.3d 318, 102 Cal.Rptr. 305.”

(California Tort Liability Practice, supra, p.385)

A trap has been defined as a concealed danger known to the Defendant or a danger clothed with a deceptive appearance of safety. (Hansen v. Rickey (1965) 237 Cal.App.2d 475, 480, 46 Cal.Rptr. 909) In Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 90 Cal.Rptr. 541, the Court held that placing a sign in an unanticipated position could constitute a trap, supporting the finding of a dangerous condition:

“Placing a stop sign in an unanticipated position could constitute a trap for an unwary motorist. Although sections 830.4 and 830.8 of the Government Code, quoted below, provide that a public entity may not be held liable for failure to install traffic signs or signals, when it does so in such a manner as to constitute a trap, liability may be imposed for the maintenance of a dangerous condition.”

(12 Cal.App.3d at 31)

In Briggs v. State of California (1971) 14 Cal.App.3d 489,92 Cal.Rptr. 433, the Court held that liability could be predicated on an inadequate warning sign. Quoting from Bakity, supra, the Court stated that:

“…The state having undertaken to sign the area was obligated to sign it properly and should have to answer for inadequate or deceptive warning proximately contributing to the accident…[W]hen it does so in such a manner as to constitute a trap, liability may be imposed for the maintenance of a dangerous condition.”

(14 Cal.App.3d 497)

In Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 57 Cal.Rptr. 639, the Court, in responding to an argument that Government Code Section 830.8 precluded liability, stated:

“Respondent calls attention to this section, in which public entities are declared immune from liability for injuries caused by failure to provide ‘traffic or warning signals, signs, markings or devices described in the Vehicle Code’ except where the warning device ‘was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.’ The immunity, however, is inapplicable when a warning sign is necessary to warn of a concealed trap. (California Government Tort Liability (Cont.Ed.Bar 1964) Section 6.33, p.221; Gov.Code. Section 830.8, Law Revision Commission Comment; see Schauf v. Southern Cal. Edison Co., 243 Cal.App.2d 450, 463 [52 Cal.Rptr. 518].)”

(249 Cal.App.2d at 704)

Immunity for Failure to Provide Signs or Other Devices

Public entities frequently contend that they cannot be held liable for failure to provide regulatory traffic control signals, signs and other devices. Government Code Section 830.4 provides:

“A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restrictions signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.”

This section provides that a condition is not dangerous merely because of failure to provide such devices or markings. However, the law is clear that public entities can be held liable for failure to provide such devices or markings, if a dangerous condition exists for reasons “other than or in addition to” the mere failure to provide them. In Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, a wrongful death action involving an intersectional accident, the Plaintiff’s expert testified that the intersection was dangerous because of the absence of regulatory traffic devices, and because of vision limitations by metal pillars on one of the streets, and shadows caused by the freeway above.

On appeal, the City contended that it was immune from liability under Government Code Section 830.4. The Appellate Court disagreed, stating:

“Cases interpreting the statute have held that it provides a shield against liability only in those situations where the alleged dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory traffic device or street marking. If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signals or street markings, the statute provides no immunity.”

(219 Cal.App.3d at 1534-35)

“In the present case, testimony at trial established that the danger at the intersection of 13th and Folsom Streets was not caused solely by the failure to provide regulatory traffic signals. Respondent’s expert witness, David Schmidt, also essentially opined that the intersection was dangerous not only because of the absence of regulatory traffic devices, but also because of the vision limitations caused by (1) the metal pillars in the middle of 13th Street, and (2) the shadow caused by the freeway above.”

(219 Cal.App.3d at 1535; Emphasis added)

“Section 830.4 exempts from the definition of ‘dangerous condition’ found in Section 830, subdivision (a), a condition resulting ‘merely’ from failure to provide regulatory traffic controls or definitive roadway markings. It implicitly confers that limited immunity from injury liability on a public entity if that failure is the only basis for fixing such liability. Where, however, the dangerous condition of public property, exists for reasons other than or in addition to the ‘mere’ failure to provide such controls or markings, the public entity is liable for injury therefrom if the conditions of its liability under Section 835 are otherwise met.”

(219 Cal.App.3d at 1535-6; Emphasis the court’s)

Accordingly, a public entity may be held liable for a dangerous condition of public property existing for reasons other than or in addition to mere failure to provide devices or markings defined by Section 830.4. Such liability is not contingent upon a finding that such condition also created a “trap”, defined by Section 830.8, by reason of failure to provide warning signs. (Washington, supra at p.1537)

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