In Tansavatdi v. City of Rancho Palos Verdes, published April 27, 2023, the California Supreme Court affirmed a lower appellate court decision that partially reversed an order granting the defendant city summary judgment. While riding a bicycle on a city street, the plaintiff's decedent collided with a turning truck. The plaintiff contended the street was a dangerous condition of public property because the portion of the street where the accident occurred lacked a bicycle lane. She further contended that the city failed to warn of a concealed trap created by the absence of the bicycle lane. The city obtained summary judgment based on design immunity under Government Code section 830.6. The order granting summary judgment did not specifically address the plaintiff's failure to warn theory of liability. The lower appellate court affirmed the grant of design immunity. But it reversed summary judgment, because the trial court had not addressed the failure to warn cause of action. The appellate court held that under Cameron v. State of California (1972) 7 Cal.3d 318 a public entity may be held liable for failure to warn of a a concealed dangerous condition even if the dangerous condition was caused by design immunity. The Cameron case based this holding on Government Code section 830.8, which establishes immunity from liability for failure to place warning signs, but exempts warning signs necessary to warn of a dangerous condition that would not be reasonably apparent to those using the roadway with due care. The lower court declined to follow Weinstein v. Cal. Dept. of Transp. (2006) 139 Cal.App.4th 52, which held that design immunity applies to failure to warn of a danger created by a design that is covered by the immunity. The California Supreme Court granted the city's petition for review.
The Supreme Court agreed that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity form liability for failure to warn of the same dangerous condition. Design immunity under Government Code section 830.6 immunizes liability for having created a dangerous traffic condition under Government Code section 835(a) (liability for a public employee negligently creating a dangerous condition), but does not necessarily immunize liability for failing to warn of a known dangerous traffic condition under Government Code section 835(b) (failing to warn or protect against a dangerous condition of which the entity had actual or constructive notice). In addition to loss of design immunity due to changed circumstances, a public entity can be held liable for failure to warn of a dangerous condition of which it had notice, even if creation of the condition is covered by design immunity. There are restrictions on that theory of liability. First, the plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition. Second, failure to warn claims may be subject to a separate, more limited form of statutory immunity: the signage immunity set forth in Government Code section 830.8. Because of the "concealed trap" exception to section 830.8, the plaintiff must overcome signage immunity by establishing the accident-causing condition was a concealed trap. Third, the plaintiff must prove that the absence of a warning was an independent, separate concurring cause of the the accident, by establishing that the absence of a warning sign was a substantial factor in causing the accident. The court declined to address whether a public entity can be held liable if the public entity is able to show that the presence or absence of warning signs was part of the approved design. The court disapproved Weinstein and another case with a similar holding, Compton v. City of Santee (1993) 12 Cal.App.4th 591. Further, while the court noted that a discussion in Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63 applying design immunity to liability under Government Code section 835(b) "is arguably in tension with some of our discussion in Cameron," it concluded that application of design immunity to section 835(b) was not the legal issue presented in Cornette, and was not intended to modify or overrule Cameron.
(Pollak, Vida & Barer, along with other counsel, represents the defendant city in this case.)