Issue 114 - August 2021
ReClaim: Design Immunity
To help members identify and reduce the cost of claims involving cases where the application of governmental immunities may be a potential dispositive defense, the California JPIA has launched ReClaim, a new awareness campaign. This important, data-driven initiative will help members understand and address high-impact claims so that they can redirect critical funding toward important programs and services.
Design Immunity is the second of three specific governmental immunities on which the California JPIA’s ReClaim campaign will focus this summer. To receive an alert when new materials are available, please contact us via email.
Roadway design cases represent the single greatest liability exposure for California JPIA members. Over the past five years, the California JPIA has incurred more than 400 design-related claims with a total severity of more than $43 million in settlements and judgments. Although members’ liability in road design cases may be remote, when the person found to be the most liable for the accident is “judgment proof”—with little or no insurance or assets—many plaintiffs pursue local governments to receive a full recovery.
Joint and several liability has survived under common law for centuries because it ensures that the risk of a defendant’s insolvency would fall on one who was also responsible to some degree for the plaintiff’s injuries and not upon the plaintiff. Joint responsibility means that the plaintiff is deserving of the court’s award for damages without respect to the degree of responsibility.
In 1986, California changed the law regarding non-economic damages, such as pain and suffering, and now limits the damages required by each defendant, thereby apportioning non-economic damages. This means that, in the case of multiple defendants, each shall be liable only for those non-economic damages the jury attributes to each defendant. However, defendants remain jointly and severally liable for economic damages, which often are significant in roadway design cases that involve catastrophic injuries.
One of the strongest defenses available to a public entity to defeat joint and several liability for economic damages is the design immunity. The design immunity provides that a public entity is not liable for an injury caused by an improvement to public property in which the design and construction conformed to approved standards or was approved by the entity’s legislative body. The concept of the design immunity is invaluable, providing an opportunity to dismiss a member from a trial proceeding, thus saving costs in the form of attorney fees and eliminating the member’s exposure at an eventual trial.
To invoke the design immunity, the public entity must establish three elements:
- A causal relationship between the accident and the design
- Discretionary approval of the design before construction
- Substantial evidence of the reasonableness of the design
The assertion of the design immunity is a document-intensive effort involving record maintenance, organization, and retrieval concerning the design of a particular roadway segment. Roadways within a city should be broken down into segments to provide for the indexing and retrieval of documents related to design, approval, construction, and maintenance. Similarly, traffic sign inventories that store information about the installation, inspection, modification, and removal dates for signs and their distance from an intersection or crosswalk should be recorded and preserved to establish the design immunity.
California JPIA members can and should inventory their records to determine if sufficient documentation exists for road designs:
- Break roadways into segments that will form the basis for indexing and retrieving documents related to design, approval, construction, and maintenance. These documents should include as-built plans, construction plans, drawings, specifications, aerial photos, inventories of roadway markings, and roadway signs.
- If original design plans are unavailable, identify and initiate pre-work to resurrect design immunity through capital improvement projects. Review every intersection to document the basis for all design features. If funding delays completion of the project, carefully document the budgetary decision-making process, along with subsequent plans to complete the work.
- Review your agency’s process for approving design plans, which must be approved by the legislative body unless others have been formally authorized to do so.
For more information, please read the California JPIA’s white paper on design immunity. This white paper presents a more detailed discussion on the statutory and legislative background of the design immunity and an outline of the elements of the design immunity, with attention devoted toward immunity preservation. The paper then discusses how members can lose this important protection, coupled with steps to take to re-establish design immunity.< Back to Full Issue Print Article