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Wong v. 396 Investment Co.5/17/2005
s water into the swimming pool and no one ever turns off the hose, the parent should be able to figure out that eventually the swimming pool will overflow and the garden will get ruined. It does not require an engineering consultant's report to draw that conclusion. The problem here is that the hose was directed at someone else's property, so Anaheim apparently did not care. Anaheim had actual knowledge of the leakage problem and it had constructive notice of the fact that the leakage created a dangerous condition. (See Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66 [actual or constructive notice of dangerous condition required].)
As for the third and final prong of the test for loss of design immunity, there is no evidence to show that Anaheim failed to remedy the leakage problem on account of a lack of either time or money. (See Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66 [third prong of test for loss of design immunity].) Ten years passed between the time the underdrain system was installed and a leakage problem became apparent and the time the litigation was commenced. Nearly thirteen years passed between the time the underdrain system was installed and Anaheim was first served with a complaint in the litigation. In all that period of time, Anaheim made no effort to stem the tide, not because of any apparent monetary or time constraints, but because it was unconcerned with the effect that 34 million gallons per year of water leakage would have on neighboring properties. The third prong of the test also having been met, any design immunity available to Anaheim with respect to the design of the reservoir with a five-foot earthen liner was lost.
(4) Underdrain System Abandonment
As the foregoing analysis shows, any design immunity with respect to leakage through the earthen liner was lost due to changed physical conditions. This should be the end of the story. Because Anaheim asserts that the rate of leakage was the same both before and after the underdrain system project was undertaken, we should not need to look at any additional design immunity issues pertaining to the underdrain system project. However, notwithstanding Anaheim's viewpoint of the effect of the underdrain system, the trial court found that " he abandonment of the underdrain [system] with only one foot of clay liner was not reasonable and exacerbated the ground water pressure problem."
Indeed, there is evidence to support this finding. Hendrix testified to his opinion that the reservoir started leaking after the abandonment of the underdrain system. In addition, Edwin McDonald, Anaheim's Water Engineering Manager in 1987, expressed his opinion that 65 gallons per minute was more than the reservoir ever leaked before the underdrain system construction. While this testimony conflicts with other opinion testimony to the effect that the reservoir leaked about the same amount both before and after the underdrain project was undertaken, it constitutes substantial evidence in support of the trial court's finding that Anaheim's manner of abandoning the underdrain system aggravated the problem. Therefore, we consider whether the underdrain abandonment project in and of itself conferred a separate design immunity. In doing so, we focus on the third prong of the design immunity test, i.e., whether any substantial evidence supports the reasonableness of the plan or design. (Cornette v. Department of Transportation, supra, 26 Cal.4th at p. 66.)
Anaheim contends the court erred in finding its abandonment of the underdrain system to have been unreasonable. Anaheim draws to our attention a July 25, 1986 Division of Safety of Dams inspection report in which i
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