Mozzetti v. City of Brisbane

• Citation: 136 Cal.Rptr. 751,67 Cal.App.3d 565
• Parties: Charles G. MOZZETTI et al., Plaintiffs and Respondents, v. CITY OF BRISBANE etc., et al., Defendants and Appellants. Civ. 38589.
• Decision Date: 28 February 1977
• Court: California Court of Appeals Court of Appeals

Page 751

136 Cal.Rptr. 751

67 Cal.App.3d 565

Charles G. MOZZETTI et al., Plaintiffs and Respondents, v. CITY OF BRISBANE etc., et al., Defendants and Appellants.

Civ. 38589.

Court of Appeal, First District, Division 2, California.

Feb. 28, 1977.

Robert E. Lee, Robert F. Price, San Francisco, for defendants and appellants.

Douglas E. Stephenson, San Francisco, Daniel J. Modena, Bocci & Modena, South San Francisco, for plaintiffs and respondents.

KANE, Associate Justice.

Defendants City of Brisbane and Milton S. Hetzel appeal from the trial court's judgment entered on a jury verdict awarding respondents damages in the sum of $75,000.

Viewing the evidence in favor of the judgment, as we must, it appears that the controversy at hand arose from flood damage to respondents' property located in the City of Brisbane, California. The property consists of a 40-unit motel, a 27-unit trailer park, and a storage building, and is bounded on the east by Old County Road, on the north by Visitacion Mall, and on the south by San Francisco Avenue. Because heavy traffic had caused serious deterioration to Visitacion Mall and Old County Road, in the summer of 1971 the city decided to resurface the streets and to construct a sidewalk on the southeast side of Visitacion Mall adjacent to the motel.

The basic concept of the Visitacion Mall project ('Project') was submitted to the city council for approval in August 1971. The engineering plan, prepared by City Engineer Hetzel was, however, no more than a 'surface drawing,' which failed to designate formal cross-sections, plans, specifications, elevations, grades or slopes. In fact, the elevations were made in the field by Marvin Wolff, a civil engineer, who had been hired by Hetzel and given general instructions to design the grade and to stake it out for construction. Wolff carried out his field surveying work in August 1971, and thereafter prepared an informal drawing containing the measurement data. The record is devoid of any showing that the informal drawing prepared by Wolff was ever submitted to the city for approval.

The record does indicate, however, that during the course of construction several changes were made that were neither designated nor contemplated in the original plan. Thus, during the progress of the construction, Visitacion Mall was widened from 40 to 50 feet. In deviation from the approved plan the raised barrier designed to prevent surface water from flowing into the motel was eliminated and instead a concrete valley gutter with inadequate catch basins and drains was installed. Also, at variance with the original plan which permitted a maximum of three-inch asphalt thickness, the sidewalk and curb elevations along both Visitacion Mall and Old County Road were considerably higher. In point of fact, engineer Wolff testified that as much as 14 inches were added to the height of Visitacion Mall at the edge of the street immediately adjacent to the motel.

The evidence also showed that the design of the Project was defective in several respects. Civil Engineer James Hauke, who testified on respondents' behalf, maintained that in addition to the catch basins already installed at least three more catch drains should have been placed along the south edge of Visitacion Mall to pick up and dispose of flood waters; that instead of installing rectangular catch basins in the middle of the north entrance, appellants should have constructed a trench drain with a steel grating on top across the entire width of the driveway, and the trench drain should have been tied into the storm sewer system across Old County Road rather than being hooked to the already inadequate drain at the south entrance; and that in conformance with the Uniform Building Code the sidewalk should have sloped toward the center of the road rather than toward respondents' premises. In Hauke's expert opinion, the construction of the elevated sidewalk leaning toward respondents' buildings had the effect of placing 'a levy or a moat around or raised dike around the Mozzetti property; leaving the Mozzetti property physically in a hole.'

The Mozzettis testified that they had experienced no flooding prior to the construction of the Project; that formerly surface waters had flowed through or around the premises; that after the construction of the Project the motel and the trailer park were left in a hole into which surface waters naturally drained; and that they had warned the city about the potential mischief many months prior to the occurrence of the flooding, but the city had failed to take any remedial steps. In addition, both respondents and other witnesses testified that the city maintained the storm sewers and drains around respondents' property in a poor condition, and that the clogging of the drains was at least partly responsible for the flooding in dispute.

In an effort to disclaim liability, appellants introduced evidence that in the early morning hours of October 11, 1972, the time of the incident, Brisbane experienced an unprecedented rainfall. Measurements on a rain gauge located 150 yards from the motel showed that 2.7 inches of rain fell in 4 1/2 hours. The same morning, for the first time since its construction, the Bayshore Freeway was flooded at South San Francisco, and was closed to traffic. The precipitation of such magnitude was characterized by several defense witnesses as a 100-year storm.

It is uncontradicted that as a result of the flooding respondents' premises were inundated with water. Water got into the motel office building and the storage room (Eagles Hall). The maximum depth of the water was 18 inches. The water remained on the premises for several hours, leaving the floor covered with mud and silt.

Based upon the foregoing facts, respondents brought an action against appellant city and City Engineer Hetzel. The lawsuit was premised upon several legal theories, including negligent design, construction and maintenance of public property; maintenance of public property in a dangerous condition; injunction; and abatement of nuisance. In an unartful manner, respondents also purported to state a cause of action for inverse condemnation.

Appellants contend that the judgment entered should be reversed because the jury was erroneously instructed as to both the defense of design immunity of Government Code, ¹ section 830.6, and the measure of damages. In addition, appellants claim that the trial court committed prejudicial error by refusing to take judicial notice of the fact that due to the heavy rainfall during the disputed period San Mateo County had been declared a disaster loan area.

Instruction On Design Immunity: Appellants requested an instruction on design immunity in the language of section 830.6. The trial court gave the proposed instruction with a modification as noted below. ² Appellants claim that the submission of the issues of advance approval and reasonableness of the plan or design to the jury was prejudicially erroneous because those issues constitute legal questions to be determined by the court rather than the jury. Although appellants' contention that design immunity is a legal issue for the court is correct, their claim of error must be rejected in this case.

In the first place, it clearly appears that the error complained of by appellants was invited error which estops appellants from raising it on appeal (Abbott v. Cavalli (1931) 114 Cal.App. 379, 383, 300 P. 67; Sommer v. Martin (1921) 55 Cal.App. 603, 610, 204 P. 33; Bondulich v. O. E. Anderson Co. (1962) 210 Cal.App.2d 12, 17, 26 Cal.Rptr. 147; 6 Witkin, Cal.Procedure (2d ed.), §§ 266, 276, pp. 4257, 4264--4265). The usual methods for raising a design immunity defense are motion for summary judgment (Baldwin v. State of California (1972) 6 Cal.3d 424, 430--431, 99 Cal.Rptr. 145, 491 P.2d 1121); motion for nonsuit (Cameron v. State of California (1972) 7 Cal.3d 318, 322, 102 Cal.Rptr. 305, 497 P.2d 777); motion for directed verdict (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 742, 94 Cal.Rptr. 175); or a combination of these motions (Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789, 793, 101 Cal.Rptr. 358). On submitting such motions, the trial court is invited, and is in a position, to rule whether the evidence is sufficient to support the design immunity defense (cf. Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 51--52, 79 Cal.Rptr. 33). If the trial court determines that the defense has been established, the jury is instructed that the public entity is immune as a matter of law for design-related damages, but if the damage is unrelated to the design (e.g., it results from improper construction or improper maintenance), then the public entity may still be liable (Johnston v. County of Yolo, supra, p. 56, 79 Cal.Rptr. 33; Van Alstyne, California Government Tort Liability (Cont.Ed.Bar (1964), § 6.83, pp. 271--272).

In the instant case, the record discloses that appellants failed to follow any of the above described methods or to seek a court determination on the legal issues in any other way. Instead, appellants requested an instruction on design immunity in the language of the statute which, in effect, was tantamount to submitting the legal questions in dispute to the jury. It is, of course, well established that where affirmative action or conduct is required, mere silence must be taken as acquiescence (Allin v. International, etc., Stage Employes (1952) 113 Cal.App.2d 135, 138--139, 247 P.2d 857). It is equally axiomatic that the parties must abide by the consequences of their own acts, and cannot seek reversal upon appeal for errors which they have committed. Consequently, where, as here, the party by his own conduct induces the commission of some error by the trial court (i.e 'invites' the error), he is estopped from insisting that the action of the court is erroneous (Collins v. Graves (1936) 17 Cal.App.2d 288, 297, 61 P.2d 1198).

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