Cameron v. State of California

• Decision Date: 07 June 1972
• Docket Number: S.F. 22866
• Citation: 102 Cal.Rptr. 305,7 Cal.3d 318,497 P.2d 777
• Court: California Supreme Court
• Parties: , 497 P.2d 777 Barbara CAMERON, a minor, etc., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent. Steven TICKES, a minor, etc., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent. In Bank

Page 305

102 Cal.Rptr. 305

7 Cal.3d 318, 497 P.2d 777

Barbara CAMERON, a minor, etc., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent.

Steven TICKES, a minor, etc., Plaintiff and Appellant, v. The STATE of California, Defendant and Respondent.

S.F. 22866.

Supreme Court of California,

In Bank.

June 7, 1972.

Rehearing Denied July 5, 1972.

Morgan, Beauzay & Hammer and W. Robert Morgan, San Jose, for plaintiffs and appellants.

Harry S. Fenton, Sacramento, John P. Horgan, James T. Johnson, William R. Edgar, San Francisco, and Donald M. Velasco, San Pablo, for defendant and respondent.

SULLIVAN, Justice.

Plaintiffs appeal on a single record from a judgment of nonsuit entered in two actions for damages for personal injuries which were consolidated for trial.

We shall examine the evidence and detail the pertinent facts in accordance with the rules applicable to nonsuits. ¹ On the morning of April 10, 1968, plaintiffs Steven Tickes and Barbara Cameron were riding in an automobile which was being driven by Daniel Graham in a general southerly direction along Highway 9 in Santa Cruz County. The weather was clear and the pavement was dry. Just south of Waterman's Gap, the road took a steep downgrade with a rather sharp 'S' curve. Graham, who was driving on the right side of the road at a speed somewhat in excess of 35 miles per hour, proceeded down the grade and entered the above curve. As he did so, the occupants of the vehicle felt a bump. The automobile then suddenly went out of control, left the roadway, rode part way up a berm located on the shoulder, slid a distance of 117 feet, and collided with the side of a hill. Physical evidence showed that before the car moved out of the lane in which it had been traveling, one of its tires left a mark 96 feet long on the pavement. As a result of the collision, plaintiffs sustained personal injuries.

Plaintiffs, by their guardians ad litem and represented by the same counsel, brought separate actions for damages. The complaints which are almost identical in language name as defendants the driver of the automobile, Graham, the State of California, and other persons and corporations sued by fictitious names. Each complaint contains four separately stated causes of action (the first cause being incorporated by reference into each of the remaining three) which for our present purposes may be summarized thusly: The first two causes, directed principally against Graham, assert respectively his negligence and his willful misconduct. The third cause, directed principally against the manufacturer and the seller of the automobile, alleges liability for a defective product. ² The fourth cause of action, against the State of California, alleges that (1) the state failed in its duty to keep the highway in a safe condition in that the curve was so improperly graded or banked that an automobile could not negotiate the curve even though going at a lawful speed and (2) that the state had failed to warn of this dangerous condition.

As previously stated the two actions were consolidated for trial. At the close of all the evidence the court granted the state's motion for a nonsuit made on the grounds that there was an insufficiency of proof of a dangerous condition of the highway and that in any event the state was immune from liability under Government Code section 830.6. Judgment of nonsuit was entered accordingly in favor of the state. ³ Subsequently the jury returned a verdict for defendant Graham and against plaintiffs. This appeal has been taken only from the judgment of nonsuit.

Plaintiffs make two main contentions before us: First, that the design immunity conferred by Government Code section 830.6 is inapplicable since the design plan approved by the Santa Cruz Board of Supervisors did not specify the degree of superelevation and since it was the improper superelevation which constituted the dangerous condition causing the accident; and, second, that even if 'design immunity' applies to immunize the state for negligence in the creation of the dangerous condition, the concurrent negligence by the state in failing to warn of the dangerous condition provides an independent basis for recovery under Government Code section 830.8. We agree with both contentions. Accordingly, we reverse the judgment.

Generally speaking a public entity is liable for injury caused by a dangerous condition of its property created by a negligent or wrongful act or omission of its employee acting within the course and scope of his employment. (Gov.Code, § 835.) ⁴ Section 830, subdivision (a), ⁵ defines dangerous condition as a condition of property which creates a substantial risk of injury when the property is used in a foreseeable manner with due care. Contrary to the state's position, we are satisfied that when viewed, as it must be, in the light most favorable to plaintiffs, there is sufficient evidence in the record to support a finding of such dangerous condition.

The dangerous condition asserted to exist in the instant case involves the superelevation, otherwise known as 'banking,' of the 'S' curve on that part of Highway 9 where the accident occurred. Normally, a curve is superelevated or banked to assist a driver in making the curve. A civil engineer, formerly employed by the Design Department of the California Division of Highways, testified that the superelevation on the curve was not consistent across the roadway, but changed abruptly; that this abrupt change would tend to shift the weight of the car so as to lift one wheel off the ground and tend to make the car roll; that a driver entering the curve could not ascertain the existence of this change in superelevation and thereby determine the proper speed to negotiate the curve, until already committed to the curve. At this point the driver would find himself trapped into believing the curve continues to the left, while it actually continues to the right. In such event he may well be unable to successfully negotiate the curve, even though proceeding at a lawful speed with due care. There were no warning signs in the direction plaintiffs' car was traveling, though there were for cars traveling in the opposite direction. This is sufficient evidence to uphold a jury finding that the uneven superelevation in the 'S' curve without warning signs constituted a dangerous condition. ⁶

However, the state argues that although the uneven superelevation constituted a dangerous condition on its property so as to make the state liable under section 835, nevertheless the state is immune from any such liability by virtue of section 830.6 since the uneven superelevation was part of a duly approved design or plan of the highway. Plaintiffs, on the other hand, argue that even if plans for Highway 9 were approved by the Santa Cruz Board of Supervisors, such plans did not contain any design for or mention of superelevation, and that therefore the design immunity provided for by section 830.6 is inapplicable.

As we recently had occasion to observe, section 830.6 ⁷ 'provides that a public entity is immune from liability for injuries caused by the plan or design of a public improvement where such plan or design has been approved in advance by the legislative body of the public entity or by some other body or employee exercising discretionary authority and where the court finds any substantial evidence on the basis of which a reasonable entity or employee could have approved the plan.' (Fn. omitted.) (Baldwin v. State of California (1972) 6 Cal.3d 424, 429--430, 99 Cal.Rptr. 145, 148, 491 P.2d 1121, 1124.)

We now turn to that portion of the judgment, which, as indicated in footnote 3, Ante, is most accurately designated a ruling on a motion for directed verdict to the effect that the state had established as a matter of law all the elements of the defense of design immunity contained in section 830.6. 'The immunity of section 830.6 is an affirmative defense which must be pleaded and proved.' (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 175, 71 Cal.Rptr. 275.) Accordingly we must now examine the evidence to determine whether the state has met its burden of establishing as a matter of law all the elements of the defense of design immunity contained in section 830.6.

The state introduced into evidence the design plans for the section of Highway 9 where the accident occurred. Frank Lewis, the present county surveyor stated by declaration that the plans in question had been prepared in the mid-1920's by Lloyd Bowman, the then county surveyor, at the direction of the Santa Cruz Board of Supervisors and within the scope of his employment. Copies of the minutes of meetings of the Santa Cruz Board of Supervisors were introduced to show that these plans for the improvement of the then San Lorenzo Valley Road, now Highway 9, were approved by the board. It is conceded by both parties that the Santa Cruz Board of Supervisors was the proper body to exercise the discretionary authority referred to in section 830.6. The record also contains a declaration by C. F. Greene, ⁸ a civil engineer employed by the state, to the effect that the design contained in the plans was in accordance with mid-1920 standards of design and was reasonable.

From the foregoing summary, it is clear that the state has presented facts sufficient to establish the initial applicability of an immunity under section 830.6. However, plaintiffs introduced evidence to show that the design plans contained no specification of superelevation; that the plans merely showed the course of the 60-foot right of way and the elevation of the white center stripe. ⁹ Therefore, plaintiffs urge that there is no evidence showing that the uneven superelevation was the result of a design or plan approved by the Santa Cruz Board of Supervisors. The rationale behind design immunity 'is to prevent a jury from simply reweighing the same factors considered by the...