Tansavatdi v. City of Rancho Palos Verdes

• Decision Date: 29 January 2021
• Docket Number: B293670
• Citation: 60 Cal.App.5th 423,274 Cal.Rptr.3d 512
• Court: California Court of Appeals Court of Appeals
• Parties: Betty TANSAVATDI, Plaintiff and Appellant, v. CITY OF RANCHO PALOS VERDES, Defendant and Respondent.

60 Cal.App.5th 423

274 Cal.Rptr.3d 512

Betty TANSAVATDI, Plaintiff and Appellant,

v.CITY OF RANCHO PALOS VERDES, Defendant and Respondent.

B293670

Court of Appeal, Second District, Division 4, California.

Filed January 29, 2021

Mardirossian & Associates, Garo Mardirossian and Armen Akaragian, Los Angeles; The Linde Law Firm, Douglas A. Linde and Erica A. Gonzales, Los Angeles; Esner, Chang & Boyer, Holly N. Boyer and Shea S. Murphy, Pasadena, for Plaintiff and Appellant.

Wesierski & Zurek, Frank J. D'Oro, Irvine, and David M. Ferrante ; Pollak, Vida & Barer, Daniel P. Barer and Anna L. Birenbaum, Los Angeles, for Defendant and Respondent.

MANELLA, P. J.

INTRODUCTION

In March 2016, appellant Betty Tansavatdi's son, Jonathan Tansavatdi, was riding his bicycle in the city of Rancho Palos Verdes when he collided with a turning truck, suffering fatal injuries.¹ Appellant sued the city, alleging a dangerous condition of public property under Government Code section 835.² According to appellant, the city had created a dangerous condition by removing a bicycle lane from the area of the accident, and had failed to warn of that dangerous condition, leading to the accident and Jonathan's death.

Following discovery, the city moved for summary judgment. Among other grounds, the city asserted it was entitled to design immunity under section 830.6. Under this provision, a public entity is immune from liability for creating a dangerous condition if it shows that: (1) a plan or design caused the injury; (2) the plan or design had received discretionary approval before construction; and (3) substantial evidence supported the reasonableness of the plan or design. The city relied on plans for a street resurfacing project, which it claimed did not include a bicycle lane at the site of the accident. The trial court granted the city's motion, concluding it had proved entitlement to design immunity as a matter of law. The court did not address appellant's theory that the city was liable for failing to warn of a dangerous condition.

Challenging the court's ruling, appellant contends the city failed to establish any of the elements of design immunity. Alternatively, she claims her failure to warn theory should survive the application of design immunity. We conclude that design immunity shields the city from liability for the absence of a bicycle lane. However, following our Supreme Court's binding precedent, we hold that even where design immunity covers a dangerous condition, it does not categorically preclude liability for failure to warn about that dangerous condition. We therefore vacate the judgment in part and remand to the trial court to consider appellant's failure to warn theory.

BACKGROUND

A. The Accident and Appellant's Complaint

On the afternoon of March 8, 2016, Jonathan was cycling in Rancho Palos Verdes, travelling south on Hawthorne Boulevard, past Dupre Drive and toward Vallon Drive. Although other portions of Hawthorne Boulevard included a bicycle lane, the portion between Dupre and Vallon did not. As Jonathan arrived at the intersection of Hawthorne and Vallon, he intended to continue straight through the right-turn lane but collided with a south-bound semi-trailer truck that was turning right from Hawthorne to Vallon. He was killed in the collision.

In March 2017, appellant filed this lawsuit against the city and others, asserting a single cause of action for a dangerous condition of public property under section 835.³ Appellant alleged that the city had both created a dangerous condition (or allowed it to be created) and failed to warn of a dangerous condition. The parties proceeded to discovery, focusing primarily on appellant's theory that the absence of a bicycle lane at the site of the accident constituted a dangerous condition and led to Jonathan's death.

B. The City's Motion for Summary Judgment

The city moved for summary judgment, arguing the affirmative defense of design immunity under section 830.6 shielded it from liability for the absence of a bicycle lane.⁴ It further claimed that such design immunity also precluded liability for failure to warn of the allegedly dangerous condition. Alternatively, the city contended that the intersection was not dangerous, and that Jonathan had not used the property with due care.

1. The 2009 Plans

In support of its claim for design immunity, the city submitted plans for a 2009 street resurfacing project (2009 plans), which included the resurfacing and restriping of Hawthorne Boulevard. Among other specifications, those plans included directions to install specific striping details, pavement markings, and signs. For certain portions of the project, the 2009 plans directed the inclusion of " ‘BIKE LANE’ & ARROW" markings and the striping of continuous lines to the left of those markings, as shown in the following example:

Those portions of the project were also to include the following sign:

The plans also showed similar existing bicycle lane markings for portions of the project that were not to be resurfaced.

Multiple segments of Hawthorne Boulevard were to include these bicycle lane markings and signs under the 2009 plans. For the segment between Dupre Drive and Vallon Drive, however, the plans neither directed the inclusion of these elements nor showed any existing bicycle lane markings or signs.⁵

The plans had been prepared by a private engineering firm and submitted to the city for approval. The plans showed that in June 2009, Jim Bell, the city's Director of Public Works at the time, signed each of the plans’ sheets in a designated space reserved for the Director of Public Works and captioned, "APPROVED."⁶

2. Nicole Jules's Deposition and Declaration

The city provided transcripts of the deposition of Nicole Jules, a former city employee who started as a senior engineer for the city in 2001, and later served as the city's Deputy Director of Public Works and Supervising Civil Engineer. Jules testified that in 2009, the city had carried out a resurfacing project that included Hawthorne Boulevard. She explained that the project relied on federal funding, and that the city was required to submit plans signed by the city to secure that funding. At the time of her deposition, Jules had only an unsigned copy of the 2009 plans before her. Jules testified that the city would have had to approve the plans before construction began, but in response to questioning, she confirmed that the produced copy of the plans showed no approval by the city, as they were unsigned. Jules stated, however, that the striping in the plans matched the striping actually performed on the road.

As to the absence of a bicycle lane, Jules testified there had never been a bicycle lane on Hawthorne Boulevard between Dupre and Vallon. She stated that in 2001, the city decided against including a bicycle lane there, explaining that the city wanted to retain on-street parking for the benefit of an adjacent park, and that a bicycle lane "would compromise" that parking.

Following her deposition, the city submitted a declaration by Jules. In it, Jules stated that the city had now produced the signed copy of the plans, bearing Bell's June 2009 signature. Jules noted that Bell was a licensed engineer during his tenure as Director of Public Works for the city. She explained that he had signed the plans "on behalf of the City of Rancho Palos Verdes." Regarding the site of the accident and the portion of Hathorne Boulevard preceding it, Jules opined that it met or exceeded all applicable government standards, and that the 2009 plans, including the absence of a bicycle lane, were reasonably approved.

3. Rock Miller's Declaration

The city also provided the declaration of Rock Miller, a traffic engineering expert. Miller had reviewed the 2009 plans and opined that they were reasonable and in full compliance with applicable guidelines. He described the available collision data for the intersection of Hawthorne Boulevard and Vallon Drive, which showed that Jonathan's accident was the only serious collision there from 2006 to 2017. Miller opined that the intersection had an "extremely good" collision record, and that the road was safe when used with due care.

As to the inclusion of a bicycle lane, Miller reported that under applicable guidelines, bicycle lane markings should stop at least 100 feet before the beginning of a right-turn lane. He opined that a reasonable engineer would have approved the plans, including the absence of a bicycle lane at the relevant segment of the road.

C. Appellant's Opposition

In opposing the city's motion for summary judgment, appellant argued, inter alia, that the city had failed to establish the elements of design immunity as a matter of law. Among other things, appellant contended the city had failed to establish that the 2009 plans had been approved by an authorized person because it had not shown that Bell had the authority to approve them. She further contended there was no substantial evidence showing that the plans were reasonable. Appellant additionally argued that the causation element of the design immunity was unmet, at least as it related to her failure to warn theory, because the city's failure to warn was unrelated to any plan or design.⁷

With her opposition, appellant submitted a declaration by Edward Ruzak, a traffic engineering expert. Ruzak opined that the intersection constituted a dangerous condition due to the absence of a bicycle lane that would direct riders to the left of the right-turn lane. He testified that the relevant segment of Hawthorne Boulevard was heavily used by bicyclists, and that the risk of serious collisions was significant, given the road's design, including a steep downgrade that caused bicyclists to travel at high speeds. Ruzak faulted the city for failing to provide "warnings or positive guidance ... regarding the proper and safe use of [the road]" in the absence of a bicycle lane.

Appellant also submitted the transcript of Rock Miller's deposition. There,...