Get ready for more street signage.
The California Supreme Court, in Tansavatdi v. City of Rancho Palos Verdes, (2023) 14 Cal.5th 639, has held that Government Code section 830.6, which protects public entities from claims alleging dangerous conditions on public property if the design was approved by a public agencies’ legislative body or their designee, does not shield a public entity from claims that the public entity should have warned the public of known dangers.
We wrote about the Tansavatdi case a while back when it was before the Court of Appeals. The case involves a very sad set of facts. A young boy killed by a semi-trailer while waiting at a stoplight on his bicycle in Rancho Palos Verdes, California. The area where the boy was killed did not have a bicycle lane although stretches of the same road did. The 2nd District Court of Appeal, on appeal from a motion for summary judgment, held that even if the public entity could establish that it was immune from liability under Government Code section 830.6, the trial court should have considered whether the public entity should have been liable for failing to warn of a dangerous condition on public property.
Government Code Sections
As most know, a claim against a government entity cannot be maintained unless the claim is premised on a statue providing for that liability. The case involved the interplay of three Government Code sections. The first was Government Code section 835 which provides for liability caused by dangerous conditions on public property. Section 835 provides for liability if a plaintiff shows that: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) either: (a) the dangerous condition was caused by a negligent act or omission of a public employee acting within the scope of his/her employment; or (b) the public entity had actual or constructive notice of the dangerous condition with sufficient time to have taken measures against the dangerous condition.
The case also involved two relevant exceptions. The first was Government Code section 830.6, also known as “design immunity,” which protects a public entity from claims alleging dangerous conditions on public property if the public entity can show that: (1) the plan or design was approved before construction by the public entity’s legislative body or other body or employee exercising discretionary authority to give such approval; or (2) where such plan or design was prepared in conformity with standards previously approved AND a trial or appellate court determines that there is substantial evidence that: (1) a reasonable public employee could have adopted the plan or design or standards; or (2) a reasonable legislative body or other body or employee could have approved the the plan or design or standards.
The second exception is found at Government Code section 830.8, also known as the “concealed trap” exception, and provides that a public entity is not liable for claims alleging dangerous conditions on public property if an injury was caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. However, Section 830.8 provides an exception to the exception as it were, and provides that a public entity remains liable if a signal, sign, marking or device was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not be anticipated by, a person exercising due care.
Government Code section 830.6 protects a public entity from claims alleging dangerous conditions on public property if the public entity can show: (1) a causal relationship between a plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.
The Supreme Court Decision
The California Supreme Court, relying on its earlier decision in Cameron v. State of California (1972) 7 Cal.3d 318, explained that a public entity could be liable for dangerous conditions on public property both by its affirmatively negligent acts as well – the creation of the dangerous condition – as for its passively negligent omissions – the failure to warn of the dangerous condition.
Thus, explained the Supreme Court, while Government Code section 830.6 immunizes a public entity for creating a dangerous condition on public property under Government Code section 835, it does not necessarily immunize the public entity for failing to warn of a known dangerous condition under Section 835.
Second, explained the Supreme Court, while design immunity does not categorically preclude claims alleging a public entity’s failure to warn of a known dangerous condition, Government Code section 830.8 protects a public entity from failing to provide “traffic or warning signals” except when necessary to warn of a dangerous condition which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.
Third, explained the Supreme Court, in Cameron the Court made clear that to establish liability for a public entity’s failure to warn of a dangerous condition that would otherwise be subject to design immunity, a plaintiff must prove that the absence of a warning was an “independent, separate, concurring cause of the accident.” In other words, there must be “some substantial link or nexus between the omission and injury,” and a claim must fail if a plaintiff is unable to show that the absence of a warning sign was a substantial factor in causing the injury.
Finally, noted the Supreme Court, it was not addressing whether design immunity might apply if a public entity was able to show that the presence or absence of warning signs was part of the approved design. So, we may not just have more signage, as indicated in the beginning of this article, but we may have more voluminous plans as well.
In short, held the Supreme Court, while design immunity alone will not immunize a public entity from claims that it should have warned the public of known dangerous conditions, a plaintiff pursuing a failure to warn claim must show that:
The public entity had actual or constructive notice that the approved design resulted in a dangerous condition;
The dangerous condition qualified as a concealed trap (i.e., it would not have been reasonably apparent to, and would not have been anticipated by, a person exercising due care); and
The absence of a warning was a substantial factor in bringing about the injury.
So there you have it. The Supremes have spoken. Design immunity is not the end of the inquiry when it comes to dangerous conditions on public property. A public entity can also be liable for failing to warn of known dangerous condition if that the dangerous condition was not reasonably apparent or could not be reasonably anticipated by someone exercising due care and the absence of a warning was a substantial factor in causing the injury.