The Twists and Turns in a "Killer Road" Case
Johnson Robert A. Balbuena
2121 Rosecrans Avenue, Suite 3400
South Bay Los Angeles
Manhattan Beach, CA 90245
Trial requires investigation, focused discovery and dogged preparation, but perhaps even more so for the “killer road” or dangerous condition of public property case. This article provides guideposts to help take on the treacherous curves in such a case, including how to get started, conduct aggressive but efficient discovery, and avoid a crash with the dreaded defenses related to governmental immunity.
II. THE TORT CLAIMS ACT
A. Master the Applicable Law
Before filing a dangerous condition case, know the prima facie elements. California Government Code section 830 et. seq. establish them, and sections 830 and 835 form the foundation. Section 830 provides:
(a) ‘Dangerous Condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
Section 835 further outlines the basic elements: (1) the public property was in a dangerous condition at the time of the injury; (2) the injury to the plaintiff was proximately caused by the dangerous condition; (3) the kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and that either (4) the dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment; or (5) the entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury / dangerous condition.
Also helpful is the 1100 series of the Judicial Council of California Civil Jury Instructions (“CACI”). CACI 1102 states:
A ‘dangerous condition’ is a condition of public property that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition.
Using this applicable law, develop a roadmap for your case. Having the law at your fingertips helps avoid mistakes and minimizes missed opportunities during investigation and discovery. The facts of your case will dictate what specific evidence and information is needed, and what in particular will defeat the public entities’ defenses, including the powerful government immunities.
B. Target the Government Immunities
In defending these cases, public entities wield a big sword: The Statutory Immunities. Two particular immunities are defense favorites: (1) Design Immunity (Gov. Code, § 830.6. ); and (2) Sign Immunity (Gov. Code, §§ 830.4 and 830.8).
1. Design Immunity
Remember: Design immunity applies only where the public entity can establish: (1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan by an authorized public body or official prior to construction; and (3) substantial evidence supporting the reasonableness of the design. Morfin v. State (1993) 12 Cal.App.4th 812 [15 Cal.Rptr.2d 861]. Whenever applicable, argue defendant has failed to establish one or more of these requirements, and so cannot shield itself with design immunity in your case.
As a frontal assault on these immunities, emphasize the reasoning behind the immunity and its exceptions. The reasoning “is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design. ” Cameron v. State (1972) 7.Cal.3d 318, 326 [102 Cal.Rptr. 305], citing Baldwin v. State (1972) 6 Cal.3d 424, 432 n7 p99 Cal.Rptr. 145]. The legislative intent was to insulate discretionary planning and design decisions by responsible public officials from review in tort litigation. Where applicable, emphasize that the key “factors” in your case are not the “same factors” weighed in the original approval, and were not part of the “discretionary planning or design decisions. ” Along these lines, there is an exception to the immunity if plaintiff establishes three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition because of practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 71 [109 Cal.Rptr.2d 1]. Furthermore, design immunity does not apply to dangerous road conditions caused by negligent maintenance (e.g. , soil erosion, potholes) nor to roadways under construction (e.g. , construction zones, repair operations). See Winig v. State of California (1995) 37 Cal.App.4th 1772 [45 Cal.Rptr.2d 652].
The “trap exception” can also be used to defeat design immunity. (Gov. Code, § 830.8. ) A “trap” can exist where the location was constructed in accordance with an approved design but due to conditions (e.g. , icy roads, sharp curves) not readily apparent to motorists, the public property constitutes a dangerous condition unless proper warnings are provided by the public entity. To that extent, design immunity is no defense against claims of negligence that are “independent of design” (e.g. , failure to warn of an icy bridge caused by weather conditions). Flournoy v. State (1969) 275 Cal.App.2d 806 [80 Cal.Rptr. 485]; see also De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739 [94 Cal.Rptr. 175] (holding design immunity was no defense to improper stop sign because location was independent negligence and not part of the approved design); and Mozetti v. City of Brisbane (1977) 67 Cal.App.3d 565 [136 Cal.Rptr. 751] (holding design immunity inapplicable where improper maintenance of drainage system was independent of design).
Finally, a private defendant is not entitled to the protection of design immunity. Often, a public entity hires contractors to perform work on its behalf, including roadway design, construction and maintenance. Investigate to determine if such private defendants deviated from the approved plans, created a dangerous condition, or failed to follow approved guidelines. In such cases, even if the public entity is immune, the private defendant can still be held liable for their negligence.
2. Sign Immunity
With regard to “sign immunity,” Government Code section 830.4 limits the scope of a dangerous condition. Under this section, a condition is not dangerous if the claimed defect consists “merely . . . of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs . . . speed restriction signs . . . or distinctive roadway markings. ” Whether such traffic regulatory devices or markings should be provided is within the discretion of public officers, and generally, there is no affirmative duty to install traffic control signals. Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434 [6 Cal.Rptr3d 316].
Yet, sign immunity does not have to be the death-knell of a case. The impact can be limited or avoided where plaintiff alleges a dangerous condition for other reasons beyond just a failure to provide traffic regulatory devices. See Washington v. City & County of San Francisco (1990) 219 Cal.App.3d 1531 [269 Cal.Rptr. 58] (dangerous condition not caused solely by failure to provide regulatory traffic signals. ) In addition, sign immunity does not insulate against claims based on failure to maintain such regulatory devices. See Winig v. State of California (1995) 37 Cal.App.4th 1772, 1776-1777 [45 Cal.Rptr. 2d 652]. And, as with design immunity, it does not apply to a failure to provide (other) appropriate warning signs for “traps. ” Briggs v. State (1971) 14 Cal.App.3d 489 [92 Cal.Rptr. 433] (inadequate signs to warn and direct traffic away from threatened landslide).
III. BEGIN BY FILING A VALID GOVERNMENT CLAIM
A. The Filing
A dangerous condition case requires that a claim first be presented to the proper public entity(s) before suit is filed. (Gov. Code, § 945.4. ) Failure to present a timely claim can and usually does result in dismissal of the complaint. 1
Such claims for injury to person or property must be presented to the correct public entity within six (6) months of the accrual of the cause of action (i.e. , date of loss and/or injury). (Gov. Code, § 911.2. ) Claims involving other injuries or losses are subject to a one (1) year deadline. Id.
The Tort Claims Act requires that the public entity either reject a timely claim within 45 days (Gov. Code §§ 912.4, 912.6, and 913), or return it as late within the same period. (Gov. Code §§, 911.3-911.4. ) Once the claim is rejected, a lawsuit can be filed. Id. Plaintiff must file the suit within six (6) months from the date the public entity serves the rejection notice. (Gov. Code, § 945.6(a)(1). ) However, where a public entity fails to serve notice of rejection, a lawsuit may be filed as late as two (2) years from the date of accrual of the cause of action. (Gov. Code, § 945.2(a)(2). )2
Given the very short six (6) month claims filing deadline, you can face having very little time to investigate and confirm the identities of the truly liable public entities. If, because of this time crunch, you cannot determine – with certainty – the identities of all liable public entities (e.g. , state, county, city, school district, etc. ), you should present timely claims to all potentially involved/liable public entities. More often than not, representatives of the non-involved public entities will contact you or your client with verified information that exonerates them of any involvement (e.g. , signed affidavits by authorized public employees attesting to no ownership, possession or control of the subject area, roadway, etc. ). In that way, you can be reasonably confident not naming that entity as a defendant in the subsequent complaint, or filing a request for dismissal as to that public entity (only) if the complaint has already been filed.
Be aware that some public entities, including the State of California (“Caltrans”), require a fee before accepting the claim as officially “filed. ” Failure to pay the required fee could result in having the claim “bounced” (i.e. , not accepted for filing), which could prove embarrassing if you are near the filing deadline. As such, familiarize yourself with the specific filing procedures of each involved public entity to avoid unneeded surprises.
The Tort Claims Act does provide for the filing of late claims. If you find yourself in this uncomfortable position, look to Government Code sections 911.4, 911.6, 911.8, 912.2, and 946.6 for the applicable law.
B. Make the Claim Detailed But Broad
Government Code section 910 addresses the essential contents of a claim. Although courts have ruled that claims need not adhere to the standards of clarity and precision expected in pleadings (See Martinez v. County of Los Angeles (1978) 78 CA3d 242 [144 Cal.Rptr. 123]; Foster v. McFadden (1973) 30 CA3d 943 [106 Cal.Rptr. 685]), they should be sufficiently detailed for purposes of evaluating the merit of the claim(s). Dillard v. County of Kern (1943) 23 C2d 271, 278.
Draw on your experience, your client’s, and that of co-counsel and experts to allege the facts necessary to support any potential theory of liability. Again, because of the six (6) month claim deadline you may be pressed for time in determining all the facts necessary to support all potentially applicable claims and causes of action. On the other hand, if supporting facts are not in the government claim, the public entity may later contest causes of action in the complaint as unrelated to the facts (and “notice”) presented in the claim. See e.g. , Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 [253 Cal.Rptr. 587]. As such be broad in framing the government claim, but provide as many facts as you can to give “notice” to the public entity about any later-developed cause of action. If later-discovered facts prove certain allegations untenable, then unsupportable claims and/or causes of action can be dropped from the complaint. In short, remember that the scope of a later-filed complaint may be limited to those facts included in the original claim. Id.
Yet another trap for the unwary is that some public entities require that claims be presented on their own “approved” forms. More often than not, these forms provide insufficient space for detailing the facts and other information needed to support the various claims and theories of liability and recovery. If faced with that dilemma, add your own attachments (even if not provided for by the “approved” form)"
IV. INVESTIGATION AND DISCOVERY
A. The Investigation
Investigate early. Whenever appropriate, consult with experienced co-counsel and retained experts. And where possible, ensure the actual condition of the subject area or roadway, and related evidence is preserved and/or thoroughly documented through photographs, video and other suitable means. This becomes critical if the public entity should respond quickly to a catastrophic crash and install improvements (e.g. , a guardrail, sign, or paving) that change the injury scene. For example, in road construction cases, the crash site can change completely in a matter of weeks, days or even hours. Time may be of the essence. An added benefit: Early investigation helps significantly in drafting the government claim, and avoiding the pitfalls described in the previous sections.
B. When Possible, Make a Public Records Request
If time permits, consider seeking related documentation from the public entity through a public records request. (Gov. Code, § 6259. ) This request can be made any time prior to filing the lawsuit. But again, earlier is better. After filing suit, the Discovery Act applies and defense counsel may insist on Requests for Production or depositions.
With a public records request, you maximize your opportunity of receiving “smoking gun” documents early. You can then use them in drafting the government claim, the complaint and/or discovery.
C. Get the Investigation Reports and Photographs
The Traffic Collision Report (“TCR”) or other similar investigative reports can be crucial to understanding the surrounding facts. The TCR includes important information regarding location, time, road conditions, lighting, weather, witnesses, the injury scene, and often critical photographs. Be sure to also check for any “supplemental” reports.
Depending on the severity of the injury, still other reports may be produced such as Multidisciplinary Accident Investigation Team (M.A.I.T) and/or Coroner Investigation Reports. The M.A.I.T. and Coroner Reports, for example, almost always provide additional facts you can use in drafting the government claim, the complaint and discovery.
D. Learn About the Prior Accident History Through Discovery
As noted above, in many cases, the public entity must have had actual or constructive notice of the dangerous condition to be held liable. One of the best ways to prove such notice – and show the property was in a dangerous condition – is through prior accident history at or near the location of the injury.
Many public entities for example track collision data on their roadways. Caltrans uses a database known as Traffic Accident Surveillance and Analysis System (TASAS). Reports can be generated from this TASAS database for all California state highways, including most date/time frames and accident types. Although the flexibility of such reporting systems can be very helpful to plaintiff’s counsel, they can also be used by a public entity to obscure relevant information. Be on the look out for any attempts to improperly limit the search parameters or scope of the reports to only particular collision types, directions of travel, locations, solo as opposed to multi-vehicle collisions, and fatal vs. non-fatal accidents.
The California Highway Patrol (CHP) also maintains its own accident database known as the Statewide Integrated Traffic Records System (SWITRS). Getting copies of both the TASAS and SWITRS reports will allow you to compare the accuracy and completeness of the reports and ensure you have knowledge of all reported accidents. In addition, you can use the databases to identify truly similar collisions and order the individual Traffic Collision Reports for further detailed information about each.
Also check for prior complaints or criticisms about the roadway and/or dangerous condition. Government entities often keep track of citizen complaints, including complaints about ongoing construction projects. Public entities routinely use these complaints as an extra set of eyes on a project to bring problems and issues to the attention of their contractors. Of course, such complaints can not only evidence a dangerous condition, but show a pattern of negligent behavior by the contractor(s) and/or public entity for failing to inspect or enforce compliance with applicable safety standards.
In addition, each district throughout California has a Traffic Operations Branch that investigates traffic conditions on state freeways and highways. Generally, these investigations are triggered by a complaint, third-party request, or a flag on a “Table C” report. 3 Once these investigations are initiated, they are reported on an “HT-65" preprinted form. The HT-65 report can include an accident history, collision diagram, accident rate calculations and the projected/expected accident rate for the subject road type. This report may also contain the investigators’ notes and photographs. Caltrans uses the report to assess accident trends and to flag whether an improvement or change to the roadway is warranted.
E. Use Discovery to Prove Conditions Have Changed
As noted earlier, you should look for any evidence of “changed conditions” to defeat government immunities. Conduct discovery – both written and through deposition – about any and all changes to the road or property design, whether by purposeful design change, increased use or blatant deterioration. This includes any significant increase in traffic or pedestrian volume, especially where it exceeds the projected increases of the original designers. For example, a roadway may have been designed to safely accommodate a maximum number of vehicles. That maximum, however, may have been significantly exceeded because of population growth, increased housing availability or other reasons. Those types of changed conditions can well defeat any claims of immunity.
F. Use Discovery to Obtain Policy and Procedure Manuals
Policy and procedure manuals can assist in establishing dangerous condition, and negligence on the part of hired contractors. Use these materials to develop further discovery and question witnesses. Determine the level of compliance and/or non-compliance with all applicable standards in the manuals. Also, be sure to request both present-day manuals and those applicable at the time the public property was designed and constructed. Comparing and contrasting the various versions can lead to further discovery, and interesting cross-examination at depositions and trial.
The bad news is that government immunities make a treacherous road out of most “dangerous condition” cases. The good news is that knowing the applicable law (including those immunities), early investigation, and focused discovery go a long way towards success. Early investigation includes preserving the evidence, bringing on the right experts, and where appropriate consulting with experienced co-counsel. Focused discovery means getting what is needed, not only to prove the case but to defeat the immunities. This and tenacity will help you take on the twists and turns ahead, and find justice for your clients. Good luck.
1. The Tort Claims Act does provide for the filing of a late claim. See infra. But never go there, unless you have to for reasons beyond your control.
2. Never place too much reliance on the mail system. It’s a good idea to periodically check on the status of the claim. That way, you can determine if the claim was rejected even if the crucial rejection notice is lost in the mail. This avoids the uncomfortable situation where a public entity swears it served the rejection notice and plaintiff’s counsel has to argue it was never received.
3. A Table C report lists accident information for requested locations that meet or exceed Caltrans’ accident threshold. Caltrans uses this information to determine if changes to the roadway and/or location are warranted (e.g. , guardrails, warning signs, etc. ).