In Ford v. City of Los Angeles, published April 1, 2020, the Second District Court of Appeal, Division 8 affirmed a defense verdict for the defendant city in an auto vs. pedestrian case alleging that an intersection where the city was installing a traffic signal--but had not completed installation until after the accident--was a dangerous condition of public property. After a fatal accident at the intersection, the city had applied for federal funds under the Highway Safety Improvement Program to improve the intersection. In its application for the funds, the city admitted the intersection was hazardous. The city received the funds to install a signal at the intersection, but did not complete the project before the plaintiff's accident. At trial, the court granted the city's motion in limine to exclude the application for the funds from evidence under 23 U.S.C. section 409, which precludes admission into evidence of various documents compiled or collected as part of a request for funds under the program. At trial, the city submitted evidence that before the accident it learned it would receive federal funding, and of the process of installing the signal, to establish the affirmative defense under Government Code section 835.4 that it took reasonable steps to address a dangerous condition. The jury found the intersection was not in a dangerous condition. The plaintiff argued that the statutory privilege did not include the application the city submittted, and alternatively that the city waived the privilege by submitting evidence of the federal funds.
The court of appeal rejected both arguments. Although an application for funds is not expressly included in section 409's list of privileged documents, the intent of the statute--encouraging states to make honest assessments of their property by protecting them from liability for doing so--establishes that applications in which entities disclose their property is hazardous are included in the privilege. The city did not waive the privilege by putting on the section 835.4 defense, because the defense did not offer any evidence about the contents of the application. It merely offered evidence of when it learned federal funds were available, and the steps it took afterward to install the signal. The section 835.4 defense did not depend on the contents of the application.
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