Orange County Branch Newsletter

February 2015

Law and CE News

Design Immunity: An Effective Tool For Public Entities

Yearly there are upwards of 22,000 lawsuits filed in California for personal injury, property damage and wrongful death claims.[1]  Nearly half of those claims are filed in Los Angeles and Orange County.  Both the state and federal government have enacted statutes which give people the right to sue public entities when there is a dangerous condition on the public property that leads to injuries. Not only can the public entity that owns the property be held responsible for damages caused by a dangerous condition, so can third party engineering firms who performed design services if it is found that the third party’s design was below the standard of care and contributed to the injury. Design Immunity, codified in Government Code section 830.6, is one of the most powerful and effective defenses a public entity has to avoid liability. Therefore, it is crucial that public entities establish guidelines and standards of practice to ensure the availability of design immunity in the event that a claim is made.

Design Immunity Requirements

Design immunity is a defense in California that can be raised by a public entity defendant in response to a claim or lawsuit. If successfully proven, it can result in a complete bar to claims for damages. However, three requirements must first be met. First, there must be a showing that the injuries were caused by a feature in an approved plan or design. Second, the design at issue must have been approved before construction by someone with proper authority. And finally, there must be substantial evidence showing that the plan or design was reasonable—not perfect. By enacting Government Code section 830.6, it was the California Legislature’s intent to prevent a jury from reweighing the factors that were considered by the public entity in approving the challenged design.

Who Can Use Design Immunity as a Defense?

Section 830.6 immunity not only applies to public entities, but also to employees of the public entity acting within the course and scope of their employment. Moreover, as long as there is a discretionary approval of the plan or design at issue prior to construction, design immunity is also available to government employees who did not expressly approve the design. Finally, it is important to note that design immunity is only applicable to public entities and their public employees, not to non-governmental third parties or individuals. This is to prevent the discretionary decisions of government officers vested with authority to make those decisions from being second-guessed in litigation.

Standards and Practices to Support a Design Immunity Defense

There are several measures that a public entity can take to lay a groundwork for a design immunity defense should a claim arise.

(1) Approval of Plan by Person with Discretionary Authority

The first component of design immunity is to be able to show that the design or plan was approved prior to construction by someone who had discretionary authority to give such approval. The public entity official that actually has discretionary authority to approve the design is often declared in local municipal codes or ordinances.

In some cases, there may be no pre-construction approval of a specific design. In that case, a public entity may still be able to show that the construction was in conformity with standards previously approved by someone with the appropriate level of authority. This has been applied in claims regarding conformity of signage, median width, barrier requirements, traffic signal timing, and highway limit lines with previously-approved standards.

(2) Showing of Reasonable Approval

Whether there is substantial evidence that the design approval was reasonable is decided on a case-by-case basis by the trial court—not a jury. Here, documentation is key. Establishing generally-accepted criteria such as an itemized list of requirements that must be satisfied to secure approval, as well as documenting the basis for approval of the design will assist the court in finding that approval was reasonable.  As people change jobs and memories fade, a well-kept written record can be valuable in proving-up design immunity. Because claims for dangerous conditions of public property can arise decades after construction has completed, maintaining project approval documentation requires a long-term record retention plan be in place.

While design immunity is an effective tool to protect public entities from liability on dangerous condition claims, it unfortunately does not protect the outside design firms from direct exposure to lawsuits from an injured plaintiff. Public entities should have policies and procedures in place to ensure that the proper pre-construction design-approval is made, documented, and saved so it can be readily accessed in the event of a future claim or lawsuit.

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.

[1] 2013 Court Statistics Report:  Statewide Caseload Trends 2002–2003 Through 2011–2012, Judicial Council of California.

Please contact us at the Oakland, South Pasadena, Orange, or San Diego offices to discuss further.

Christie Bodnar Swiss, Esq. | [email protected]

Justin D. Witzmann, Esq. | [email protected]

Collins Collins Muir + Stewart LLP
2173 Salk Avenue, Suite 250 | Carlsbad, CA 92008
Phone: (760) 274-2110    | Fax:  (760) 274-2111

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.