Anderson v. City of Thousand Oaks

• Citation: 65 Cal.App.3d 82,135 Cal.Rptr. 127
• Parties: Thomas A. ANDERSON and Betty Clouse, Plaintiffs and Appellants, v. CITY OF THOUSAND OAKS, Defendant and Respondent. Civ. 46217.
• Decision Date: 20 December 1976
• Court: California Court of Appeals Court of Appeals

Page 127

135 Cal.Rptr. 127

65 Cal.App.3d 82

Thomas A. ANDERSON and Betty Clouse, Plaintiffs and Appellants, v. CITY OF THOUSAND OAKS, Defendant and Respondent.

Civ. 46217.

Court of Appeal, Second District, Division 5, California.

Dec. 20, 1976.

Hearing Denied Feb. 17, 1977.

Cohen, Cearnal, England, Whitfield & Osborne, and Thomas B. Osborne, Oxnard, and Charles D. Christopher, Camarillo, for plaintiffs and appellants.

Don Dewberry, Ventura, and Donald C. Fesler, Encino, for defendant and respondent.

OPINION ON REHEARING

STEPHENS, Acting Presiding Justice.

Appellants Anderson and Clouse brought this action for the wrongful death of their son when the automobile in which he was riding failed to negotiate the curve of a road designed, constructed, and maintained by respondent City of Thousand Oaks. After responsive pleadings were filed, the city moved for summary judgment on the basis of several grounds of public entity immunity. Summary judgment was granted and the action was dismissed, whereupon appellant filed this appeal.

Facts

On the evening of November 4, 1972, appellants' son, Dennis Michael Anderson, was riding as a passenger in an automobile which was proceeding northbound along Lynn Road, approaching a section of the road which curves to the left in a 65 degree arc before reaching the Ventura Freeway. The automobile failed to negotiate the curve at a point near the Green Meadow Drive intersection and ran off the road, causing the death of both Anderson and the driver of the car. At the time of this occurrence, Lynn Road had been open to the motoring public for just over one month, but the City of Thousand Oaks had not set up any caution signs or roadway striping of a type to warn northbound drivers proceedings at the legal rate of 65 miles per hour of the upcoming curve.

The wrongful death action subsequently filed by appellants set forth three alternate grounds of liability as to respondent city: (1) negligent maintenance of the roadway in a dangerous condition, insofar as the speed limit was 65 miles per hour while the design speed of the curve was 45 miles per hour; (2) negligent failure to provide speed or warning signs for the curve, which thereby rendered it dangerous at speeds in excess of 45 miles per hour; (3) the city was on notice of the dangerous condition of the roadway by virtue of a meeting of the Ventura County Traffic Safety Council on October 18, 1972.

In response to appellants' complaint, respondent denied liability on all counts, set up numerous affirmative defenses, and then moved for summary judgment based upon the following three defenses: (1) design immunity for improvements of public property constructed pursuant to an approved plan (Gov.Code, § 830.6); (2) lack of actual or constructive notice of any dangerous condition, inasmuch as the road was only recently built and was adequately inspected both in design and construction (Gov.Code, §§ 835, 835.2); and (3) sign placement immunity, where the failure to provide regulatory control signals did not constitute a condition endangering the safe flow of traffic (Gov.Code, §§ 830.4, 830.8). In support of its motion for summary judgment, the respondent included its counsel resolutions, design plans for the roadway, accident computer printouts, and declarations by its Director of Public Works and Assistant Traffic Engineer. Appellants opposed the motion with a declaration from a registered civil engineer stating that the Lynn Road curve had a design speed of 45 miles per hour, which, coupled with the safety factor built into the road, yielded a maximum safe speed of 55 miles per hour. It was further declared that no signs, striping, or other indicators warned a northbound motorist that he would have difficulty negotiating the curve ahead at speeds in excess of 55 miles per hour. Finally, the expert concluded that, given the foregoing two factors, the roadway was in a dangerous condition when traveled in excess of 55 miles per hour, but within the 65 mile per hour zoned speed limit.

The trial court, without specifying the grounds of its decision, granted the respondent's motion for summary judgment. We find, however, that such a ruling was improper since appellants' proof controverting respondent's claims of immunity is sufficient to raise triable issues of fact.

Discussion

The granting of a motion for summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent's affidavits do not show such facts as may be deemed by the court sufficient to present a triable issue. (Code Civ.Proc., § 437c; Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) To prevail, therefore, the moving party's affidavits must set forth facts establishing every element necessary to sustain a judgment in his favor before defects in counteraffidavits need be examined. (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) On the other hand, it is axiomatic that counteraffidavits are construed liberally and need only set forth evidentiary facts supporting merely a possible cause of action (Orser v. George, 252 Cal.App.2d 660, 669, 60 Cal.Rptr. 708), since the purpose of the summary judgment procedure is to determine if issues exist to be tried, rather than to try the issues (Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703, 4 Cal.Rptr. 103). Examining the affidavits and counteraffidavits in the case at bench in light of these established rules, we must determine whether respondent has met its burden of establishing its immunity from liability for injury caused by the allegedly dangerous condition of its property.

Government Code section 835 provides for the liability of a public entity for injury caused by the dangerous condition of its public property (1) which is Created by the negligence of a public employee acting within the scope of his employment (Gov.Code, § 835, subd. (a)), or (2) which may not be directly attributable to the public entity, but which Goes uncorrected after the entity has notice of the condition in time to take corrective measures (Gov.Code, § 835, subd. (b)). ¹ Respondent claims summary judgment was proper as it is shielded from liability under the first prong of section 835 by either design immunity or by sign placement immunity, and is exempt from liability under the second prong because, as a matter of law, it had no notice of any dangerous condition along Lynn Road. We now proceed to discuss the sufficiency of respondent's proof as to each of these claimed immunities.

I

Design immunity, the first possible ground for the granting of the summary judgment, is an affirmative defense to liability for the dangerous condition of public property and as such it must be pleaded and proved by the defendant public entity. (Hilts County of Solano, 265 Cal.App.2d 161, 175, 71 Cal.Rptr. 275.) Under Government Code section 830.6, ² three basic elements must be established in order to claim this defense: first, a causal relationship between the plan and the accident; second, discretionary approval of the plan prior to construction; third, substantial evidence supporting the reasonableness ot the design. (De La Rosa v. City of San Bernardino, 16 Cal.App.3d 739, 748, 94 Cal.Rptr. 175; Johnston v. County of Yolo, 274 Cal.App.2d 46, 51--52, 79 Cal.Rptr. 33.) Because the existence of the first element is undisputed, we begin with a discussion of the latter two elements.

In examining the sufficiency of respondent's proof as to the elements of prior approval and reasonableness of approval of the Lynn Road plan, it will be helpful to bear in mind the rationale underlying design immunity. Basically, this defense is predicated upon the concept of separation of powers--that is, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies, to avoid the danger of "impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested." (Cameron v. State of California, 7 Cal.3d 318, 326, 102 Cal.Rptr. 305, 310, 497 P.2d 777, 782; quoting from 4 Cal.Law Revision Comm'n 823 (1963); see Van Alstyne, Calif. Gov. Tort Liability (1964), § 6.32.) Additionally, judicial economy underlies design immunity--forbidding a jury from reweighing the same factors considered by the governmental entity which approved the design. ³ (Baldwin v. State of California, 6 Cal.3d 424, 432, fn. 7, 99 Cal.Rptr. 145, 491 P.2d 1121.)

Respondent's showing of a detailed plan, drawn up by a competent engineering firm, and approved by the city council in the exercise of its discretionary authority, ⁴ is certainly persuasive evidence of both elements of prior approval and reasonableness for purposes of the design immunity defense. Appellants attempt to take this case outside the reach of design immunity, however, by characterizing the dangerous condition of the roadway as one which was not comprehended within the plan or design. In support of this position they cite Cameron v. State of California, 7 Cal.3d 318, 102 Cal.Rptr. 305, 497 P.2d 777. We disagree with appellants' characterization, and with the applicability of Cameron to the instant facts.

In Cameron v. State of California, supra, the California Supreme Court found that the design immunity defense did not apply in the case of an unevenly banked S-curve, where the plans for the curve failed to specify the degree of banking. In so holding the court reasoned that there would be no examination of a discretionary decision in contravention of the design immunity policy because no such decision had been proven. (7 Cal.3d at p. 326, 102 Cal.Rptr. 305, 497 P.2d 777.) Implicit in the court's reasoning was the assumption that the omission of banking or 'superelevation' figures from the plans indicated...