In Menges v. Department of Transportation, published December 24, 2020, a divided panel of the Fourth District Court of Appeal, Division 3 affirmed summary judgment in favor of Caltrans based on design immunity under Government Code section 830.6. A tractor-trailer exiting Interstate 5 at Avenida Pico swerved, straddled a curb, crashed through a light standard, and broadsided the vehicle on Avenida Pico carrying the plaintiff. The truck driver told police he had no recollection of the accident and had no reason to exit the interstate at that point. The plaintiff sued Caltrans, alleging that the striping and signage of the off-ramp was a dangerous condition of public property that had caused the truck to mistakenly and unintentionally exit the freeway and crash into the car. Caltrans moved for summary judgment. It presented evidence that the offramp was built substantially in compliance with an approved plan. The court granted the motion.
The majority agreed that design immunity applied. The plaintiff challenged the reasonableness of the design, based on the declarations of the plaintiff's two experts. The appellate court held that substantial evidence of reasonableness establishes that element of design immunity. The approval of the plan by a licensed engineer for Caltrans, exercising his discretion, was substantial evidence of reasonableness. The opinion of the defense expert witness, after reviewing the materials and the information about the accident, that the design was reasonable was further evidence establishing reasonableness. In light of that substantial evidence, the opposing expert opinions could not raise a triable issue of fact. The plaintiff also contended that the expert declarations raised a triable factual issue on whether the offramp as built conformed exactly with the plan. The majority held that this was the incorrect standard: To establish the second element of design immunity, the defendant must prove only that the improvement as constructed conformed substantially with an improved plan. The plaintiff's experts opined that the constructed offramp's signage, gore point striping, and channelizer striping deviated from the plan. Caltrans objected to these declarations as lacking foundation. The trial court did not rule on those objections. The majority sustained the objections, ruling that the experts did not provide a foundation in the evidence for their opinions. That left Caltrans's expert's opinion that the construction complied with the plan. Further, the evidence did not show that the deviations the plaintiff's experts identified were substantial.
A dissenting justice opined that any deviation from the plan should be analyzed under the test for loss of design immunity; and that the California Supreme Court had established that the substantial-evidence test should not be applied to loss of design immunity. The justice further opined that the plaintiff's experts had a foundation for their opinions; and that the case law on which the majority relied was no longer good law.
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