Johnston v. Yolo County

• Decision Date: 16 June 1969
• Court: California Court of Appeals Court of Appeals
• Parties: Edwin P. JOHNSTON, Plaintiff and Respondent, v. COUNTY OF YOLO, State of California, Defendant and Appellant. Civ. 11805.

Page 33

79 Cal.Rptr. 33

274 Cal.App.2d 46

Edwin P. JOHNSTON, Plaintiff and Respondent, v. COUNTY OF YOLO, State of California, Defendant and Appellant.

Civ. 11805.

Court of Appeal, Third District, California.

June 16, 1969.

Rehearing Denied July 11, 1969.

Hearing Denied Aug. 13, 1969.

Vernon E. Bjorklund, Fresno, James H. Burke, Sacramento, and J. Adrian Palmquist, Alameda, by James H. Burke, Sacramento, for plaintiff-respondent.

Rust, Hoffman & Mills, Sacramento, and Ellis J. Horvitz, Los Angeles, by Ellis J. Horvitz, Los Angeles, Rodegerdts, Means & Northup, Charles R. Mack, County Counsel, Woodland, for defendant-appellant.

FRIEDMAN, Associate Justice.

The County of Yolo appeals after a jury awarded personal injury damages against it. Plaintiff, Edwin Johnston, age 22, had been a passenger in an automobile driven by Clifford Jutkins. Johnston was injured in the early morning hours of April 4, 1964, when Jutkins failed to negotiate a double curve in County Road 87 and his car toppled into a ditch.

At the trial plaintiff elicited evidence tending to show that the double curve as constructed--not later defects in maintenance or operation--formed a dangerous condition of the county road. Government Code sections 830 and 835 fix the general standards governing a public entity's liability for the dangerous condition of its property. ¹ Section 830.6 establishes an immunity from liability where the injury is caused by a reasonably conceived plan or design. ² The county charges error in trial court rulings which prevented it from asserting the design immunity.

County Road 87 is a two-lane paved road stretching five or six miles northward from the town of Esparto. Approximately a mile north of Esparto there is a right-hand jog in the road. Originally this jog had been accomplished by two right-angle turns. In 1951 or 1952 the county reconstructed the jog, replacing the two sharp turns with a double curve in the general shape of a reverse S. About 550 feet north of the reverse S is an old, narrow, 400-foot bridge over Cache Creek.

On the night of the accident plaintiff and Jutkins were riding in the latter's car with two girl friends. During the evening they drove northward on County Road 87, traversing the double curve. Several hours later as they returned southward, they crossed the Cache Creek bridge but failed to negotiate the double curve. There was evidence of beer consumption, but no evidence that it affected Jutkins' driving ability. The passengers gave estimates of speed on the return journey varying from '45 to 60' miles per hour to 'about 70' miles per hour. They described requests to Jutkins to drive more slowly. Plaintiff said that Jutkins slowed to 55 miles per hour as he entered the curve. Jutkins testified that he slowed to slightly under 40 miles per hour, but started his turn too late; that the curve was sharper than he thought; that there was some gravel in the road; that he went into a broadside skid; that the car went off the road to his left and rolled oown an embankment. Other evidence denied presence of the gravel and several experts testified it could not have caused the skid.

North of the Cache Creek bridge was a sign bearing the legend 'Narrow Bridge.' Approximately 150 feet south of the bridge and 400 feet north of the double curve was a sign bearing a curving arrow. ³ A broken white line was painted down the middle of the road. Jutkins testified that he had seen both the curved arrow and the white line as he proceeded toward the curve. The weather was clear, the road dry.

As the basis for its assertion of the design immunity described in section 830.6, the county relies upon the testimony of A. E. Rhoades, its former road commissioner. Plaintiff, not the county, had produced Rhoades as a witness. Rhoades testified that he was a licensed civil engineer and had been road commissioner for the county from 1948 to 1962. Sometime in 1951 or 1952 Jim Naismith, a county supervisor, told Rhoades that Mr. Stevens, who owned land traversed by County Road 87, would donate enough land to permit the county to eliminate the two right-angle turns at the jog and to substitute curves. Rhoades had a survey crew go to the site and a pair of curves, each with a 450-foot radius, was staked out on the ground. Supervisor Naismith then told Rhoades that Stevens objected to the proposed design because he did not wish to donate the amount of land needed. Naismith instructed Rhoades to reduce the area required by the project. In order to achieve this result Rhoades sharpened the two curves, reducing each to a radius of 300 feet.

Up to the time of trial the county had not pleaded design immunity as a defense, although both the complaint and the pretrial order had included negligent design as an issue. ⁴ The immunity provided by section 830.6 must be pleaded and proved. (Hilts v. County of Solano, 265 A.C.A. 178, 192, 71 Cal.Rptr. 275; see Teall v. City of Cudahy, 60 Cal.2d 431, 435, 34 Cal.Rptr. 869, 386 P.2d 493.) Following Rhoades' testimony the county moved the court to permit an amendment to its answer 'to conform to proof,' raising the immunity defense. The trial court took the motion under submission and did not thereafter act on it. After plaintiff rested, the county moved for a nonsuit on the asserted strength of the section 830.6 immunity. The motion was denied. Later the court rejected a requested jury insruction in the language of section 830.6.

THE DESIGN IMMUNITY.

In reviewing the trial court's exclusion of the design immunity defense, this court is concerned with the propriety of its action, not the reasons for it. (3 Witkin, Cal. Procedure, Appeal, § 76.) The trial court relied upon the proposition that the design immunity statute had no force where use of the public works facility subsequent to construction revealed uncorrected danger in the original design. At the time of trial that proposition had support in an intermediate appellate decision (Cabell v. State, Cal.App., 55 Cal.Rptr. 594) but was later rejected in Cabell v. State of California, 67 Cal.2d 150, 154, 60 Cal.Rptr. 476, 430 P.2d 34. Nevertheless, exclusion of the immunity defense was proper because the county had failed to prove it in a vital particular.

Notwithstanding prevailing liberality in the amendement of pleadings to conform to proof, an amendment will not be permitted where there is a complete failure of proof, that is, where 'the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning * * *.' (Code Civ.Proc. § 471; 2 Witkin, Cal. Procedure, Pleading, § 603; 2 Chadbourn, Grossman & Van Alstyne, Cal. Pleading, § 1097.) Although the decisions usually involve amendment of complaints, section 471 speaks of defenses as well as claims, hence applies with equal vigor to the amendment of answers. (Brown v. Sweet, 95 Cal.App. 117, 124--125, 272 P. 614.) The trial court's refusal to permit the county's pleading amendment must be sustained because a fact vital to the proposed defense was unproved 'in its general scope and meaning.'

In order to gain advantage of the design immunity provided by Government Code section 830.6, Yolo County had to show the design's approval in advance of construction by the official or board exercising discretionary authority to give that approval. The defense held out by section 830.6 rests upon a combination of three statutory elements: first, a causal relationship between the plan or design and the accident; second, the design's approval in advance of construction by a legislative body or officer exercising discretionary authority; third, a court finding of substantial evidence of the design's reasonableness. The second statutory element, approval, must occur first in chronological order. It is a vital precondition of the design immunity.

Approval, according to section 830.6, is expressed as an action 'by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval * * *.' As we interpret the statute, the possession of discretionary authority must characterize the approving agency, whether it be the legislative body or an administrative official. In the affairs of a public entity (e.g., a county, city or public district) the locus of discretionary authority is fixed by law. A governing council such as a board of supervisors has no 'inherent' power to exercise an authority delegated by law to an administrative officer. (Johnston v. Board of Supervisors, 31 Cal.2d 66, 73--74, 187 P.2d 686; Coulter v. Pool, 187 Cal. 181, 186--187, 189, 201 P. 120.) Conversely, a statutory delegation of power to a specified administrative officer bars the legislative body from exercising it. (O'Melveney v. Griffith, 178 Cal. 1, 5, 171 P. 934; 62 C.J.S. Municipal Corporations § 554.) One looks to the law fixing the public entity's internal distribution of powers to discern whether the legislative body or, alternatively, some administrative board or officer exercises discretionary approval authority for the purpose of section 830.6.

This interpretation of section 830.6 is consistent with its rationale: "There should be immunity from liability for the plan or design of public construction and improvements where the plan or design has been approved by a governmental agency exercising discretionary authority, unless there is no reasonable basis for such approval." (Cabell v. State of California, supra, 67 Cal.2d at p. 153, 60 Cal.Rptr. at p. 478, 430 P.2d at p. 36, quoting from Recommendation Relating to Sovereign Immunity, Cal. Law Revision Com. 823.)

Although earlier California statutes had vested county supervisors with direct administrative powers over the county road system (see Coulter v. Pool, supra, 187 Cal. 181, 201 P. 120), the Collier-Burns Highway Act of 1947 placed the board of supervisors in a policy-making and...