Higgins v. State of California

• Citation: 62 Cal.Rptr.2d 459,54 Cal.App.4th 177
• Decision Date: 24 March 1997
• Docket Number: No. G014942,G014942
• Parties: , 97 Cal. Daily Op. Serv. 2710, 97 Daily Journal D.A.R. 4862 John HIGGINS et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent.
• Court: California Court of Appeals

Page 459

62 Cal.Rptr.2d 459

54 Cal.App.4th 177, 97 Cal. Daily Op. Serv. 2710,

97 Daily Journal D.A.R. 4862

John HIGGINS et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent.

No. G014942.

Court of Appeal, Fourth District, Division 3, California.

March 24, 1997.

[54 Cal.App.4th 180] Girardi and Keese, James B. Kropff and Brian C. Gonzales, Los Angeles, for Plaintiffs and Appellants.

William C. McMillan, Anthony J. Ruffolo, Carol Quan, Christopher Hiddleson and Rene Judkiewicz, Los Angeles, for Defendant and Respondent.

OPINION

SONENSHINE, Acting Presiding Justice.

John Higgins and Stacy Higgins appeal from a judgment in favor of the State of California (the state) in an auto accident/personal injury action. The court granted the state's motion for summary judgment based on design immunity. (Gov.Code, § 830.6.) (All statutory references are to the Government Code.) The Higgins contend the state failed to establish all the elements of a complete defense.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of November 22, 1990, John and Stacy Higgins' vehicle, traveling southbound at 65 miles per hour in the carpool lane of the I-405 freeway, collided with a vehicle attempting to merge. The Higgins' car, impacted at the right front bumper and fender, ricocheted across the center median strip and into the northbound lanes of the freeway, where it was struck again before coming to rest on the east shoulder. John and Stacy (collectively Higgins) sustained injuries in the accident.

In September 1991, Higgins filed a complaint for damages, naming the owners and drivers of the other two vehicles and various governmental entities, including the state's Department of Transportation (Caltrans). Higgins alleged the state's liability for creating a dangerous condition of public property because (1) there was no median barrier separating the northbound and southbound traffic; (2) the road shoulders were too narrow: and (3) the 55 miles per hour speed limit was unreasonably low for the area. ¹

In its answer generally denying the allegations of the complaint, the state asserted the affirmative defense of statutory design immunity from liability for damages, alleging, "Any and all acts or omissions ... which allegedly created the condition of property ... were in accordance with reasonably approved plans, specifications and designs of construction of, or improvement to, public property."

In June 1993, the state moved for summary judgment based on design immunity. Its separate statement of undisputed material facts recited, "Interstate Route 405 at the accident location is a north-south freeway with four twelve-foot wide lanes on either side. There are two carpool lanes at the location, in either direction. On the southbound side, the two lanes transition into one, with an additional area for merging traffic. [p][ ] The north and southbound lanes of travel are divided by a median area composed of paved and unpaved sections. [p][ ] The median area is more than 46 feet wide. [p][ ] There is no median barrier at the location where the subject accident occurred. [p][ ] The original design plans for the [subject] section of the 405 freeway ..., dated January 1969, were approved in advance of construction by State highway engineers with the discretionary authority to so approve. [p][ ] The design plans for the modifications ..., dated July 1990, including the carpool lanes, were approved in advance of construction by State highway engineers with the discretionary authority to so approve. [p][ ] The original design plans and the subsequent design plans for the subject freeway construction could reasonably have been approved. [p][ ] No changes in physical conditions had occurred in the actual operation of the subject accident location as of November 22, 1990, since the design modifications were completed in July 1990. [p][ ] The speed limit for the subject location, as posted, was 55 m.p.h. on November 22, 1990." The declaration of Richard N. Smith provided evidentiary support for these facts.

Smith attested to his civil engineering degree and certification as a traffic engineer, his considerable professional contributions in the field of highway safety, and more than 30 years experience with Caltrans, including a 14-year stint from 1974 to 1988 as its chief of safety research. He stated, "I authored a report in 1977 on the status of median barriers, as used in California, within medians of 46-feet or wider. Based on the recommendations I made in that report, State of California policy was changed so as to limit median barrier placement, based on traffic volume and median-width characteristics alone, to medians less than 46-feet wide. Such a standard had existed prior to 1971, when the 46-foot standard was increased to 50-feet. Based on my study of accident experience after that change, the standard was changed back to the 45-foot level in 1978, where it has remained ever since."

Smith visited and inspected the accident site and studied the traffic collision report and freeway design plans. He noted the location was designed and built in the late 1960's. The plans for the project were approved by the district engineer, engineer of design, deputy district engineer and assistant state highway engineer. In addition, "[t]he project was confirmed in 1969 as having been built according to plan by the Resident Engineer." Design plans for construction modification were approved in February 1988 by the deputy director of transportation and the chief of the office of engineers. In July 1990, the modification project was confirmed by the resident engineer as having been built according to plan. Smith averred the subject median area, as designed and built, was "in conformance with design standard for medians." Because it was more than 46 feet wide, "it did not have, nor should it have had, a median barrier." Finally, in Smith's expert opinion, both the original design plans and the plans for the modifications, including the installation of carpool lanes, "could reasonably have been approved."

Opposing the state's motion, Higgins conceded the design plans for the modification construction were duly approved by proper authorities. However, Higgins maintained neither the original nor the modification plans could have been reasonably approved because of "1) ... an unreasonably short taper of the carpool lanes to merge into one lane; 2) the high incidence of cross median accidents in the immediate vicinity ...; 3) CALTRANS' own requirement of a median barrier during [the construction project]; and 4) the unreasonableness of not having a median barrier where the area is just over the width warrant and a high volume of traffic travels at high speeds." Higgins further contended there had been changes in physical conditions after the design modifications were approved, in that a temporary median barrier in place during the construction phase was removed when the work was completed.

Higgins submitted the declaration of Harry J. Krueper, Jr., a civil and traffic engineer and accident reconstruction litigation expert. Krueper attested to his familiarity with "accepted practices utilized by engineers in designing, constructing, modifying, upgrading and maintaining most types of public [property]." He opined "no reasonable employee of the State of California could have adopted the Project Plans for construction ... as approved in March 1989, ... and no reasonable legislative body or other body could have approved [those] [p]lans." He based his opinion on the volume of traffic in 1990, "about 225 percent of the 1980 volume," constituting "a definite change of condition from the original design of the freeway." Noting the median was about 48 feet wide, Krueper admitted California's standards, calculated according to "volume/width criteria," require barriers only when the median is 45 feet or less in width. But, he added, the 50-foot width advocated by a national highway safety organization was safer.

Krueper attested to another hazardous condition--two carpool lanes merging into one, with a "far too short" four hundred fifty-foot tapering transition. He said, "By state standards, transitions on high-speed roadways should be sufficiently long so any weaving or merging can be done with reasonable ease." Reciting "a long-standing formula ... used on both a national and a statewide [although not specifically California] basis," Krueper calculated the taper length should have been at least 660 feet for cars traveling at the posted speed of 55 miles per hour, but more realistically, 780 feet for cars predictably speeding. He added that under today's standards, although not specifically in California, "the normal transition is up to 1,500 feet in length, with a 1,000-foot minimum."

Moreover, Krueper stated, between June 1987 and November 1990, there were four cross-median accidents in the subject area, including the Higgins incident. Two of those accidents, one involving a fatality, occurred before the project plans were approved. In Krueper's opinion, the Higgins accident was easy to foresee, and "[i]t [was] unreasonable [for the state] to have approved the construction plans." Krueper believed with the "volumes of traffic and the higher speeds," Caltrans was "playing 'Russian roulette' " when it constructed the median without a "positive barrier" section.

In its reply, the state submitted Smith's supplemental declaration stating, in relevant part, "Neither the design plans approved in the late 1960s nor the plans approved in 1988 ... called for the placement of a median barrier. Therefore, the absence of a median barrier at the subject accident site is in conformity with the design plans, and it was reasonable to approve the design plans which did not include a median barrier."

After hearing the motion, the court granted summary judgment, finding as a matter of law the state had established a complete defense under...