Government Liability Update

Technological Advances Do Not Constitute the "Changed Physical Conditions" Necessary to End Design Immunity

In Dammann v. Golden Gate Bridge, Highway and Transportation Dist., published December 20, 2012, the First Appellate District, Division 2, affirmed summary judgment in favor of the defendant district in a dangerous condition of public property case.  The plaintiffs were injured in a cross-over auto accident on the Golden Gate Bridge.  The trial court granted the district summary judgment based on Government Code section 830.6's design immunity.  It concluded that the district was immune for its 1985 decision not to install moveable median barriers on the bridge.  The plaintiffs argued that the district's later knowledge that technological advances in the barriers made them appropriate for the bridge constituted the "changed physical conditions" that, by statute, can trigger loss of design immunity.  The appellate court carefully analyzed the legislative and court history of the statute's criteria for loss of the immunity, and concluded that only changed physical conditions that exist at the public property in question can terminate design immunity.  Technological advances, including those installed on similar property elsewhere, do not constitute changed physical conditions.

Tree Planted in Street Median Is Not Dangerous Condition of Public Property if It Poses Danger Only to Those Driving Without Due Care

In Cordova v. City of Los Angeles, published December 20, 2012, the Second District Court of Appeal, Division One, affirmed summary judgment for the city in a roadway design wrongful death case.  A car travelling 68 miles per hour on a city street with a speed limit of 35 MPH was sideswiped by a car travelling 66 miles per hour.  The sideswiped car veered into the street median and hit a magnolia tree planted there, killing the driver and most of the passengers.  The tree was at least seven feet away from the street's traffic lanes.  The plaintiffs contended that placing a fixed object in a median was improper design and amounted to a dangerous condition of public property.  The trial court granted the city summary judgment, ruling that the tree did not pose a substantial ristk to persons using the property with due care.  The appellate court agreed.  Nothing about the street would cause a person driving at or near the speed limit to veer into the tree.  Nothing about the tree caused persons to travel at unsafe speeds.  Visibility of the tree was not obstructed.  As a matter of law, the tree in the median strip did not constitute a dangerous condition.

California Supreme Court: Misdirected Claims Do Not Comply with the Claims Requirement

In DiCampli-Mintz v. County of Santa Clara, published December 6, 2012, the California Supreme Court unanimously held that prelitigation claims for damages must be presented as provided in Government Code Section 915; and that public entities do not waive their rights if they decline to respond to claims not presented as prescribed in that statute.

Government Code section 915 states that claims must either be delivered to the clerk, secretary, or auditor of a public entity, or mailed to one of those officials or the entity's governing body.  It further provides that a misdirected claim shall be deemed to have been presented in compliance with statute if it is actually received by the clerk, secretary, auditor, or board.

The claimant in DiCampli-Mintz sent a Code of Civil Procedure section 364 Notice of Intent to Sue to a county hospital's risk management department, and it was later received by the county's risk management department.  The California Supreme Court has previously held that if a section 364 notice contains enough information to put a public entity on notice that a claim is being presented, the entity may waive its defenses that the notice is insufficient to serve as a claim, or that it is untimely, unless it responds to the claim.  The lower court in DiCampli-Mintz ruled that the section 364 notice in that case served as such a "claim as presented," even though no recipient specified in section 915 received the notice.

The Supreme Court reversed this result.  It held that section 915's plain language, the legislative history of the statute, and the policy behind it established that claimants must strictly comply with it; and that claims and "claims as presented" presented to the incorrect recipients cannot comply with the claims requirement.

Issues of Fact Require Jury to Consider Whether Excessive Force Used to Remove Suspect from Stolen Vehicle

In Coles v. Eagle, published December 5, 2012, the Ninth Circuit Court of Appeals reversed a judgment in favor of police officers sued for allegedly using excessive force to remove a car theft suspect from the stolen car.  The suspect pulled into a parking lot and stopped in front of an obstacle.  A police car parked behind him.  The officers gave him contradictory orders to keep his hands on the steering wheel and to exit the vehicle.  An officer then broke the driver's side window and pulled him out of it.  The district court granted the officers partial summary judgment, finding the arrest lawful and the use of force within the car reasonable.  A jury then ruled for the officers concerning their actions after he was removed from the car.  The appellate court found that issues of fact as to whether the use of force to remove the suspect was proper rendered the partial summary judgment improper, and therefore rendered the court's jury instruction based on that grant erroneous.