Issue 137 – July 2023
NEWS: WORTHY

Design Immunity Update
By Daniel P. Barer, Partner, Pollak, Vida & Barer
Government Code section 830.6 regarding Design Immunity has been part of the Government Claims Act ever since the Act was passed in 1963. For sixty years, it has been a powerful shield for agencies to use against personal injury lawsuits that allege public property is dangerous because it could have been designed to be safer. Unfortunately, a recent California Supreme Court decision involving a California JPIA member agency has weakened that shield. Tansavatdi v. Member, decided in April 2023, reaffirms (and expands upon) a 1972 California Supreme Court decision that held the immunity does not apply to an agency’s failure to warn of concealed traps of which the agency had notice. Agencies should be aware of this potential exposure and take measures to minimize risks of injury and liability.
Under Government Code section 830.6, an agency is immune from liability for an injury caused by a plan or design of public property if three elements are established:
- The plan or design caused the injury;
- the plan or design was approved before construction by either the agency’s board or an employee with authority to approve designs (or was built in conformity with standards so approved); and
- there is some evidence that the approval was reasonable.
An agency can lose this design immunity if a change in physical conditions makes the design or plan dangerous and the agency has notice of the danger created. But even under these circumstances, the design immunity remains in place for a reasonable period of time sufficient to allow the agency to obtain funds and carry out the corrective work necessary to conform the property to a suitable design or plan. Further, if the agency cannot fix the property due to insufficient funds or because it’s impossible as a practical matter to do so, the immunity remains as long as the agency makes a reasonable attempt to provide adequate warnings of the condition.
A 1972 California Supreme Court case, Cameron v. State of California, appeared to establish another exception to design immunity. It held that even if all design immunity elements are established; the agency can be held liable for failing to warn of a “concealed trap” created by the design—some dangerous property condition that would not be obvious to persons using the property with due care. This exception does not appear in the language of Government Code section 830.6. It appears in the Government Claims Act as an exception to a different statutory immunity: Government Code section 830.8, which immunizes agencies for failure to place warning signs on roadways.
Cameron’s holding was so out-of-left-field that two published decisions from lower appellate courts declined to follow it. Compton v. City of Santee (1993) 12 Cal.App.4th 591 ignored Cameron and held that design immunity applies to liability for failure to warn of concealed traps. Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52 acknowledged Cameron but held that it did not apply where the “concealed trap” was part of the approved design.
The lower court decision in Tansavatdi, however, followed Cameron. Tansavatdi arose out of a bicycle versus truck accident. The decedent rode straight through a right-turn lane next to a trailer-truck turning right from the number-two lane, hit the trailer, and went under the wheels. The decedent’s mother sued the member agency and alleged that the boulevard was dangerous because it lacked a bicycle lane in the area of the accident. The mother further asserted that the agency failed to warn of the absence of the bike lane, the traffic speed, traffic volume, and the grade of the slope down which the decedent rode. The agency asserted design immunity and that there was no failure to warn. The trial court granted the agency summary judgment based on design immunity and did not expressly address the failure-to-warn claim. In a published decision, the appellate court affirmed the trial court’s finding of design immunity. It ruled, however, that design immunity did not apply to the failure-to-warn claim. It ordered that issue be sent back to the trial court to decide. Because the appellate court’s decision on failure to warn conflicted with the holdings in Compton and Weinstein, the agency sought and obtained a review of that part of the decision from the California Supreme Court.
In its April 27, 2023, decision, the California Supreme Court agreed with the lower appellate court’s conclusion. It held that under Cameron, design immunity for a dangerous condition does not necessarily shield the public entity from liability for failure to warn of the same dangerous condition. Further, the Supreme Court expanded on Cameron.
The Supreme Court held that design immunity is limited to agency liability for creating a dangerous condition of public property (Government Code section 835(a)). It ruled that design immunity does not necessarily apply to agency liability for being on notice (actual or constructive) of a dangerous traffic condition and failing to warn or protect against that danger adequately (Government Code section 835(b)). Besides the loss of design immunity due to changed circumstances, the Supreme Court held that a public entity could be held liable for failure to warn of a dangerous condition of which it had notice, even if the creation of the condition is covered by design immunity.
The court put some restrictions on that theory of liability.
- The plaintiff must prove the public entity had actual or constructive notice that its design resulted in a dangerous condition.
- Failure to warn claims may be subject to a separate, more limited form of statutory immunity: the warning-sign immunity outlined in Government Code section 830.8. As noted above, section 830.8 has a “concealed trap” exception. A plaintiff must overcome signage immunity by establishing that the accident-causing condition was a concealed trap to prove liability under this theory.
- The plaintiff must prove that the absence of a warning sign was a substantial factor in causing the accident. The court disapproved the holdings in Compton and Weinstein (discussed above) to the extent they held that design immunity barred liability for failure to warn of a concealed trap.
There are several questions that Tansavatdi’s holding leaves open. The Court declined to address how its holding would apply to public improvements other than roadways—such as buildings—to which the signage immunity would not apply. It declined to rule whether there was a dangerous condition, a concealed trap, or inadequate warnings present in the incident giving rise to the case. And the court declined to say how its holding would apply if the design or plan sets forth warning signs for the design location—or reflects a decision not to install particular warning signs.
Nevertheless, the Tansavatdi holding puts agencies on notice that they may face liability for designs or plans that prove dangerous in operation, even if the elements of design immunity are met, and there are no changed conditions. To prevent such liability, we recommend that agencies inspect their property to find hazards caused by designs that prove dangerous in operation—and either remedy or warn of them. Agencies should especially look for conditions not reasonably evident to those using the property with due care. Examples of “concealed traps” include ice that appears periodically and that is not visible to oncoming motorists; intersections with impaired visibility; curves that are banked in an unexpected direction; unexpected narrowing of paved portions of roadways; and any other abrupt change in a traveled area that would not be apparent to those approaching it. Agencies designing new projects may also wish to document in their plans any decisions on installing particular warning signs and their reasons for deciding whether warnings are or are not appropriate.
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