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Moore v. State12/14/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Rhea Francis Moore was seriously injured in a head-on automobile accident. He was driving southbound on U.S. Highway 101 (US 101), when he was struck by a motorist traveling northbound when she crossed over the highway median. Moore sued the State of California, alleging that the highway where the accident occurred was dangerous because it did not have a median barrier that would have otherwise prevented the accident.
The State was successful in moving for summary judgment; its motion was based upon the affirmative defense of design immunity under Government Code section 830.6. Moore claims that summary judgment was improper because he raised a triable issue of fact concerning whether the State lost its initial design immunity. He argues that, because there were a sufficient number of prior cross-median accidents to establish a "warrant" under which the State was required to consider installing a median barrier, the case should have been submitted to a trier of fact. At minimum, Moore contends that the court should have granted his request for a continuance of the summary judgment motion to allow him to complete discovery.
After a de novo review of the record, we conclude that the trial court improvidently granted summary judgment in this instance. There was conflicting expert testimony as to whether the warrant under which the State would consider installing a median barrier was met. Further, we reject the State's position that, even if the warrant was satisfied, summary judgment was nonetheless proper because Moore did not show that the number of cross-median accidents was "statistically aberrant." Because a triable issue of fact existed on the question of whether the State lost its design immunity, we reverse the judgment.
PROCEDURAL HISTORY
On March 28, 2002, Moore filed suit against the State (among others) for the injuries sustained as a result of a June 27, 2001 automobile accident. Moore alleged a cause of action against the State for maintaining property that was in a dangerous and defective condition; he also alleged a cause of action for negligence against other defendants. Moore's wife, Letha Moore, joined in the suit, alleging a claim for loss of consortium against all defendants.
The complaint alleged that at approximately 8:50 p.m. on June 27, 2001, Moore was driving his vehicle southbound on US 101, south of Metcalf Road, in the number one lane. Defendant Kim Bao Tran-driving north on US 101 in the number one lane-negligently operated her vehicle such that it veered left into oncoming southbound traffic and collided head-on with Moore's vehicle, thereby forcing Moore's vehicle into the number two lane where it was struck by defendant Robert Lee Escobar. Moore alleged that the initial collision was the result of both Tran's negligence and the dangerous and defective condition of the median.
In his claim against the State, Moore alleged that the State created and caused a dangerous condition of public property to exist on the freeway. Specifically, he alleged that the State knew that there was a changed condition resulting in the roadway being dangerous to motorists-i.e., a large increase in the volume of traffic. The State had notice from similar head-on and cross-median collisions in the vicinity of the accident, and there was sufficient time before the accident for
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