In Gonzales v. City of Atwater, published December 15, 2016, the Fifth District Court of Appeal reversed denial of JNOV to the city defendant in a wrongful death case. The plaintiff alleged that the phasing of the lighting at a city crosswalk caused the accident that resulted in the decedent's death. The phasing was included in plans that the city engineer, who had discretion over whether to approve plans, approved before the accident. Both sides presented testimony from experts about the reasonableness of the phasing. During a court conference over whether a city employee designated as a non-retained expert would testify as to opinions, plaintiff's counsel stated that plaintiff did not contest the reasonableness of the phased signal. The trial court denied directed verdict and then Judgment Notwithstanding the Verdict based on design immunity. The jury found that the intersection was a dangerous condition of public property.
The appellate court ruled that the trial court had erred in denying JNOV, because the city was entitled to design immunity under Government Code section 830.6, as a matter of law. The three elements of design immunity -- causal connection, discretionary approval, and substantial evidence that the design was reasonable -- were established. There was no dispute over causal connection. The appellate court rejected the plaintiff's contention that there was no discretionary approval of the light phasing, because there was no evidence that the city engineer had specifically considered the phasing. The case of Hampton v. City of San Diego (2015) 62 Cal.4th 340 established that evidence of actual deliberation is not necessary; all that is necessary is approval of the design feature by a city official with discretion. The inclusion of the phasing in the plan and the approval by the city engineer established discretionary approval as a matter of law. Finally, plaintiff's counsel's concession during trial that reasonableness was not an issue established the reasonableness element. Similar to a stipulation, a concession by counsel at trial or judicial admission eliminates the need to prove the fact at issue admitted and is binding on the client absent fraud. Plaintiff's counsel's attempts to dismiss that concession as inadvertent or spontaneous were not supported by the record.
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