Alvarez v. State of California
| Decision Date | 19 October 1999 |
| Docket Number | No. F030478.,F030478. |
| Citation | 95 Cal.Rptr.2d 719,79 Cal.App.4th 720 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Rosario ALVAREZ, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Respondent. |
Appellant Rosario Alvarez was severely injured and her son was killed when a northbound vehicle, which had veered across the median, struck her southbound vehicle on State Route 99 (SR 99) in Kern County. Alvarez sued the State of California (State) alleging that the lack of a median barrier constituted a dangerous condition on public property. The trial court granted summary judgment for the State based on design immunity (Gov. Code, § 830.6).1 Alvarez appeals from the judgment entered on that order contending: (1) the State failed to establish with competent evidence the discretionary approval of the plan element of design immunity and (2) even if the State established initial immunity, changed conditions defeated design immunity.
In this opinion we reconsider our holding in Bane v. State of California (1989) 208 Cal.App.3d 860, 256 Cal.Rptr. 468, which interpreted the 1979 amendment to section 830.6. On reconsideration of the issue we hold that changed physical conditions are necessary to defeat design immunity. Design immunity is lost only if the design under changed physical conditions has produced a dangerous condition.
The accident occurred 0.49 miles north of the Whistler Road overcrossing, between the Famoso exit and the McFarland/Sherwood Avenue exit. Between 1968 and 1970, that portion of the roadway was resurfaced and an additional northbound lane and a southbound lane were added pursuant to State Contract No. 06-032944 (the Project). The roadway then and now consists of six lanes of opposing traffic separated by a dirt median.
The State has erected median barriers on most of the 30 miles of highway between Bakersfield and Delano. However, there is a 3.42-mile stretch between post miles 45.20 and 48.62 without a barrier. The accident occurred within this segment.
Median barriers result in a trade-off. They prevent nearly all cross-median accidents, but usually result in an overall increase in accidents and injuries. A median barrier is a fixed object which, when hit, can cause serious injury either by direct impact or by deflecting vehicles back into traffic. In addition, a barrier eliminates half the recovery area for out-of-control vehicles. Based on studies of the effectiveness of median barrier placement, California has developed a median barrier policy. The policy reflects the fact that as traffic volumes rise, the chance that an errant vehicle will cross the median and strike an opposing vehicle increases. But as the median reaches a certain width, it is less likely that those events will occur. With medians 46 feet or wider, regardless of traffic volume, the benefits of preventing cross-median accidents and injuries by barrier placement are outweighed by the disadvantages of the accidents and injuries generated by a barrier. The only exception to this rule is at those locations where there is a demonstrable history of excessive cross-median accidents: an accident rate of 0.12 fatal or 0.50 total cross-median accidents per mile per year.
The State policy—median barriers should be installed on freeways only if the result of striking the barrier is less severe than the result if no barrier existed—is reflected in median barrier warrants. There are two types of warrants, traffic volume/median width warrants (traffic volume/width warrants) and accident warrants. Traffic volume/width warrants index traffic volume to median width. Accident warrants index the frequency and severity of traffic accidents at a given locale with a state average. The California Department of Transportation (Caltrans) Traffic Manual described "warrants" as follows:
Section 8-605.3 of the State Planning Manual sets forth the applicable warrants in effect when the Project was designed and built. The section provides that median barriers may be provided on freeways with medians less than 46 feet wide (a) on existing freeways if the average daily traffic (ADT) exceeds 40,000 vehicles, (b) on existing freeways if the ADT exceeds 20,000 vehicles and the median is 12 feet wide or less, (c) whenever there is an unusually high number or rate of cross-median accidents, or (d) on new construction whenever the anticipated ADT within two years of construction is estimated to be 40,000 vehicles or more.
The Project did not trigger the traffic volume/width warrant. The freeway segment was designed with a median width that varied from 65 to 41 feet, and the ADT was 22,500 vehicles and was not projected to be 40,000 vehicles or more within two years. The Project area also did not trigger the accident warrant. Thus, the 6.9-mile length of freeway was built without a median barrier in conformity with existing warrants, which were previously approved by the State.
When a freeway is built without a median barrier, the State monitors it annually to determine whether subsequent placement of a median barrier may result in a safety benefit. Each year, through its Median Barrier Monitoring System, a "sophisticated computer program," the State reviews the entire State highway system and identifies those locations that meet the accident warrant and the traffic volume/width warrant. The State notifies each district of the road segments in its area that met either warrant based on data collected the previous year. The district engineers conduct detailed reviews and field investigations and recommend to the State whether or not a barrier should be installed at the identified locations. The State reviews the district recommendations for statewide uniformity and availability of funding and makes a final decision with the district regarding installation of a median barrier at the identified locations.
On June 22, 1995, the State's Median Barrier Monitoring System letter identified three locations on SR 99 in Kern County for investigation of the advisability of installing a median barrier. One 0.9mile segment, identified from post mile 47.75 to post mile 48.62, encompassed the scene of Alvarez's accident. The median width for that segment varies from 65 feet to 41 feet. However, the State assigned the entire segment a width of 41 feet for monitoring purposes. The assigned width, coupled with the 1994 ADT volume of 37,500, brought that segment within the traffic volume/width warrant.
Pursuant to the Median Barrier Monitoring System, district engineers investigated that segment and concluded, By letter of August 18, 1995, the district recommended the State construct a concrete median barrier from post mile 47.75 to post mile 48.62.
In November 1995, the State concurred with the district's recommendation to place a median barrier at that segment and prepared a project proposal. In January 1996, the State approved the conceptual report and the district began to develop the barrier project.
Unfortunately, on July 29, 1995, five weeks after the State identified the road segment as a potential site for a median barrier, Priscilla Pangilinan, the driver of a northbound vehicle, lost control of her car and it veered across the median into the southbound lanes. The Pangilinan vehicle left the inside edge of the northbound lanes at post mile 47.83. The median is more than 60 feet wide at that point. The Pangilinan car entered the southbound travel lanes at post mile 47.88. The median is more than 45 feet wide at that point. The car struck Alvarez's southbound vehicle in the number 3 (slow) lane. Pangilinan and Alvarez's son, a passenger in her vehicle, were killed. Alvarez sustained extensive injuries.
There were no cross-median accidents on the 1.25 miles of roadway from post mile 47.37 (Whistler Road overcrossing) to post mile 48.62 (the southern end of the concrete barrier) between January 1, 1986, and July 28, 1995. However, within the 3.42-mile surrounding area that lacked a barrier, there were seven cross-median accidents since 1989, including this one and a subsequent one.
Alvarez filed a complaint for damages against the State for creating a dangerous condition of public property by failing to provide a median barrier. The State moved for summary judgment on the ground of design immunity. The trial court granted the motion, finding there was discretionary approval of the design of the highway at the point of the accident with a median barrier considered and not included. And, Alvarez did not present substantial evidence of changed physical conditions to eliminate the design immunity defense. Traffic volume was less than design capacity, and the accident rate was less than expected.
Summary judgment is properly granted when the papers show there is no triable issue as to any...
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...212 Cal. App. 4th at 354.9. Cal. Gov't Code § 830.6 (emphasis added); see also Cornette, 26 Cal. 4th at 69 (2001); Alvarez v. State, 79 Cal. App. 4th 720, 727 (1999).10. Hampton, 310 P.3d at 937 (2013); Curtis, 310 P.3d at 937 (2013).11. Cal. Gov't Code § 830.6.12. Petition for Review at 1,......