Bane v. State of California

• Decision Date: 13 March 1989
• Docket Number: No. F009578,F009578
• Citation: 256 Cal.Rptr. 468,208 Cal.App.3d 860
• Court: California Court of Appeals Court of Appeals
• Parties: George David BANE, Plaintiff and Appellant, v. The STATE of California et al., Defendants and Respondents. William ENGLAND et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

Page 468

256 Cal.Rptr. 468

208 Cal.App.3d 860

George David BANE, Plaintiff and Appellant, v. The STATE of California et al., Defendants and Respondents.

William ENGLAND et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

No. F009578.

Court of Appeal, Fifth District, California.

March 13, 1989.

Certified for Partial Publication ^*

Review Denied May 23, 1989.

Barr, Newlan & Sinclair, John D. Barr, Redding, for plaintiffs and appellants

Joseph A. Montoya, Ronald I. Harrison, George L. Cory, Richard A. Wehe, Sacramento, for defendants and respondents.

OPINION

FRANSON, Presiding Justice.

STATEMENT OF THE CASE

This appeal follows the trial of consolidated actions for personal injuries and wrongful death arising out of a two car collision on May 30, 1985. Plaintiff George Bane and plaintiff's decedent, Timothy England, were traveling westbound on State Route 152 when their Toyota van was struck by a vehicle driven by David Castro, who was making a left turn from eastbound Route 152 to northbound Route 33.

Plaintiffs sued the State of California on the theory the intersection constituted a dangerous condition of public property. The state raised the defense of design immunity pursuant to Government Code section 830.6. ¹ Trial commenced July 21, 1987. After nine days of testimony, the court ruled that design immunity had been proved and entered judgment in favor of the state.

The issue before this court is whether the evidence produced at trial was sufficient to support the design immunity defense; specifically whether: (1) the 1984 design changes in the intersection were properly approved, (2) all of the design changes were on the plans as approved; and (3) if the state had design immunity for the 1984 changes, the immunity ended once the state had notice the design was dangerous and a reasonable period of time to acquire the funds and to correct the dangerous condition.

We conclude that although the state established the necessary elements of a design immunity for the 1984 changes at the intersection, the immunity ended before the subject accident occurred because of the state's failure to initiate remedial measures within a reasonable period of time after notice that the intersection was still dangerous despite the approved design.

STATEMENT OF FACTS

Route 152 is a four-lane divided highway which runs in an east-west direction. Route 33, a two-lane road, runs in a north-south direction with its southern terminus at Route 152. A county road runs to the south of the intersection. There is an Interstate 5 (I-5) interchange at Route 152, about two miles east of the intersection, and another interchange at Route 33, about three miles north of the I-5/Route 152 interchange at the community of Santa Nella. In geometric terms, I-5 forms the hypotenuse of a triangle, and Routes 152 and 33 form the other two sides. Sometime prior to 1984, a directional sign was installed advising eastbound Route 152 traffic to turn left at Route 33 for northbound I-5.

Route 152 was originally constructed in 1922 as a two-lane road. In 1954, the present westbound lanes of the roadway were added which converted the road to a four-lane divided highway. Additional improvements were made through June 1984, and each was constructed pursuant to a plan approved in advance by an authorized state employee.

Mr. Boyd, the district traffic engineer, was the California Department of Transportation (Caltrans) employee responsible for the safety of the intersection when the 1984 and 1985 roadway changes were made. He was a registered civil and traffic engineer and had worked for Caltrans since 1960 at several positions of increasing responsibility. Boyd described the Caltrans system for determining how money is spent on roadway improvement projects. Since the needs far exceed the money available, Caltrans prioritizes projects by way of a safety index calculation which is based on a cost-benefit ratio. A problem area must score a minimum number of points to be entitled to improvement program monies. Through 1982, the Route 152/33 intersection did not qualify for safety improvement monies.

In 1982, at the request of the California Highway Patrol, Caltrans analyzed the accidents occurring at the intersection. The study identified an increasing number of collisions involving eastbound vehicles turning left to go north on Route 33 colliding with westbound vehicles on Route 152. The intersection was averaging twice as many accidents as similar intersections state wide.

As a result, Caltrans decided to revise the left-turn channelizations and require left-turning motorists to stop before initiating a turn. To this end, the Caltrans engineer lengthened and relocated the left-turn lanes toward the center of the roadway and separated the turn lanes from the through-traffic lanes by painted islands and 30-inch high traffic delineators. A limit line and stop sign were placed at the end of each left-turn lane. The district director of transportation and chief office engineer approved and signed plans for the project before construction commenced. As part of the project, a plan designating striping, the delineators and signing was prepared but was not signed. However, Boyd approved the plan prior to its implementation.

The project was completed June 28, 1984. For the next 12 months, Boyd and his staff monitored the intersection closely to determine whether the design had the desired effect of reducing left-turn accidents. In the year before the modifications were implemented, there were 30 accidents (18 involving left-hand turns) with 3 fatalities at the intersection. In the year after, there were 32 accidents (10 involving left-hand turns) and 3 fatalities. Since traffic volume had increased over the second year, the accident statistics reflected a 14 percent reduction in total accidents and a 44 percent reduction in left-turn accidents as a result of the improvements.

In November 1984, an investigation of accidents at the intersection disclosed a significant reduction in left-turn accidents but an increase in cross-traffic collisions. Boyd felt more time was needed to evaluate the changes made and to enable the project to work. He acknowledged that removal of the directional sign advising a left turn to connect with I-5 might discourage use of the intersection, and an interchange would be the ultimate solution. However, for various reasons he felt removal of the I-5 sign was not a viable alternative.

By February 1985, the intersection was averaging two accidents a month. However, in March, April and May of 1985, the average number of accidents per month at the intersection increased to five. At that point, Boyd felt the intersection needed modification. In mid-May he recommended a costly interchange be built and a four-way stop be installed in the interim. The four-way stop project was approved as an emergency project and was completed on August 18, 1985. In addition, the sign advising a left turn for northbound I-5 was removed on July 31, 1985. After those changes, the accident rate decreased dramatically.

Unfortunately, on May 30, 1985, before the 1985 changes were made, David Castro Mr. Bane was driving a Toyota van carrying four passengers. When Castro's vehicle struck the van, the van rolled over ejecting the three occupants who were not wearing seatbelts. Timothy England died as a result, and Mr. Bane suffered physical injuries. The other three passengers settled their claims and are not parties to this appeal.

made a left turn at the intersection directly in front of George Bane's vehicle. Mr. Castro was traveling from Salinas to Sacramento and intended to take Route 33 to I-5. He had driven through the intersection and made the same left turn on two prior occasions. As he approached the intersection, he did not notice the sign advising him to turn left to connect with I-5. He came to a complete stop at the limit line and remained stopped for three to four minutes. He saw no vehicles so began his turn and struck the van broadside. He testified Mr. Bane's van seemed to come out of the ground.

Appellants' expert, Darrell Wilburn, a traffic engineer and transportation planner from Idaho, investigated the intersection on June 5, 1985. He was of the opinion that the intersection was dangerous because the configuration of the road, combined with the left-lane delineators, restricted visibility. He also felt the 1984 design was not reasonable. The best low cost solution, in his opinion, was to restrict all left turns at the intersection or to place four-way stops at the intersection.

DISCUSSION

1. Did the state prove the elements of a design immunity defense?

(a) The 1984 changes in the intersection were properly approved.

From 1922 to 1984, all highway construction in the area of the Route 152 and Route 33 intersection was done according to plans signed by authorized state employees. However, no state employee signed the June 1984 plans which provided for the roadway striping, the traffic delineators and the sign placements. Appellants contend that because these plans were not signed, they were not properly approved under section 830.6, ² and the state was not entitled to design immunity.

Design immunity is an affirmative defense to liability for a dangerous condition of public property. If the state is entitled to design immunity, regardless of the evidence appellants present as to a defect in the design of the intersection, they may be denied recovery from the state.

The rationale behind design immunity is to prevent a jury from reweighing the same factors considered by the governmental entity which approved the design. "[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public...