April 23, 1985 is a day that will live in infamy.
The Coca Cola Company, responding to falling sales against its “sweeter” rival Pepsi-Cola, announced that it was changing its “secret” recipe and introducing a new kind of Coke, referred to by the public simply as, “new Coke.”
The reaction was unexpected.
People around the world began hoarding “old Coke.” Protest groups, such as the Society for the Preservation of the Real Thing and Old Cola Drinkers of America, sprang up around the county. Angry letters addressed to “Chief Dodo” were sent to Coca-Cola’s chief executive officer. And even Fidel Castro, a longtime Coca-Cola drinker, joined the backlash calling “new Coke” a “sign of American capital decadence.”
By July it was over.
Coca-Cola announced that it would once again produce “old Coke,” and in a sign (I’m sure Fidel Castro would say) of American arrogance, also announced that “old Coke” would be produced under the name “Coca-Cola Classic” alongside “new Coke” which would continue to be called “Coca-Cola” suggesting that “new Coke” would be the Coke of today as well as the future. By 1992, however, “new Coke” whose sales dwindled to 3% of market share was demoted to “Coke II” and by 2002 was discontinued entirely.
The moral of the story: Change the recipe at your own risk.
Castro v. City of Thousand Oaks
In the next case, Castro v. City of Thousand Oaks, Case No. B258649, California Court of Appeals for the Second District (August 31, 2015), the corollary might well be change the recipe design at your own risk.
In Castro (no relation to Fidel I don’t believe), Griselda Castro, her two children, and two other children in her care, were walking in the crosswalk at the intersection of Live Oak Street and Thousand Oaks Boulevard in Thousand Oaks, California when they were struck by a SUV approaching westbound which failed to see a warning beacon. Fortunately no one was killed.
Unfortunately for the City of Thousand Oaks (“City”), however, Mrs. Castro sued.
She alleged that the intersection which crosses two eastbound lanes, two westbound lanes and a center turn lane, and is controlled by a stop sign where Live Oak Street intersects Thousand Oaks Boulevard, was a dangerous condition on public property.
Between 2010 and 2011, safety improvements were made to the intersection as part of the City’s Street Rehabilitation Project. The project plans included: (1) “pedestrian ahead” warning signage on sidewalk posts in advance of the crosswalk; (2) a “Ped Xing” legend on the pavement; (3) triangular yield lines painted on the pavement with “yield here” signage in front of a painted “triple four” crosswalk design with reflective markers; and (4) a yellow pedestrian sign with a downward arrow at the crosswalk.
A warning beacon was listed in the project plans but was removed before the City Council approved the project. After the project was completed in 2011, the City’s Engineer authorized the City’s Traffic Engineering Division Manager to purchase and install the pedestrian warning beacon.
In the trial court, the City filed a motion to have the case dismissed on the ground that the City was immune from suit under the design immunity provisions of Government Code section 830.6 which provides in pertinent part:
Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.
Mrs. Castro argued that because the pedestrian warning beacon was not part of the approved plans that the design immunity defense – which was intended to prevent juries and judges from second guessing design decisions approved by public entities – was unavailable to the City.
The trial court, however, disagreed, finding that the pedestrian warning beacon “represents an additional safety feature for the crosswalk,” and thus, “[t]o make the City liable for adding extra safety features, . . . defies logic and reasonable application of the design immunity.”
Mrs. Castro appealed.
The Court of Appeals Decision
On appeal, the Court of Appeals explained that in order to establish design immunity a public entity must show:
A causal relationship between the plan or design and the accident;
Discretionary approval of the plan or design before the construction or improvement; and
Substantial evidence supporting the reasonableness of the plan or design.
In response to Mrs. Castro’s contention that the pedestrian warning beacon was not part of the approved plans, the City argued that the City’s municipal code authorized the City’s Engineer to “place and maintain, or caused to be placed and maintained, all another traffic control devices where, in the opinion of the City Engineer, such official control devices are necessary to protect the safety of the public.” As such, the City argued, the City’s Engineer had discretionary authority to order the placement of the pedestrian warning beacon.
The Court of Appeals disagreed. “The City Engineer’s authority to purchase and install traffic control devices does not establish design immunity, i.e., the discretionary authority to approve a warning beacon design before the equipment is installed,” explained the Court, “[n]or does the purchase and installation of the warning beacon as a safety addition feature create an implied design immunity.” In other words, a city engineer’s authority to purchase and install traffic control devices is not the same as approval of a plan or design, nor could it ever be:
City’s reliance on its municipal code for design immunity, if credited, would erase years of California jurisprudence. Like the trial court, we appreciate that City was trying to add a safety feature to prevent accidents. Were we to credit the City’s theory, every governmental entity would draft a similar code section and this would create design immunity by municipal code section. All that would be required would be a declaration by an engineer approving his or her own safety idea. To us, this seems a stretch which tears the legal fabric. There still must be an actual plan or design., i.e., something other than an oral “after the fact” statement that: “I had authority and I approved my own safety idea.”
While “new Coke” was a lesson in marketing, “new design” in the Castro case was a lesson in the law.
Note: Some conspiracy theorists have argued that “new Coke” was a clever marketing ploy by Coca-Cola to garner support for “old Coke.” After all, the change from “old Coke” to “new Coke” caused national headlines and even a Times magazine cover. However, in one of the best responses I’ve heard in awhile, Donald Keough, Coca-Cola’s President and Chief Executive Officer, responded “[w]e’re not that dumb, and we’re not that smart.”
So to sum it all up, to establish design immunity under Government Code section 830.6, a public entity must show, among other things, that the plan or design was approved before the construction or improvement, and the authority of a city engineer to unilaterally implement his or her own plans or designs does not constitute discretionary approval under Section 830.6.