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James v. City of Bakersfield2/19/2003
n a dangerous condition.
"(b) The fact that action was taken after an injury occurred to protect against a condition of public property is not evidence that the public property was in a dangerous condition at the time of the injury."
Government Code section 830.6 states in relevant 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.
Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning."
Section 830.6 provides public entities with an affirmative defense of design immunity in actions arising out of an alleged dangerous condition of public property. The defense of design immunity is predicated upon the concept of separation of powers. In other words, the judicial branch through court or jury should not review the discretionary decisions of legislative or executive bodies. This avoids the danger of interference with the freedom of decision-making by those public officials in whom the function of making decisions has been vested. In addition, judicial economy underlies design immunity by forbidding a jury from reweighing the same facts considered by the governmental entity which approved the design. If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies. This is true even though the plaintiffs present evidence of a design defect. Even if a paid expert witness for the plaintiff, in hindsight, finds the design defective, that does not mean the design was unreasonably approved. As long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. (Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1157-
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