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Design Immunity: Court of Appeal tells Plaintiff “Look Where You are Going”

“The rule deciding this case is ‘look where you are going’.” the Court of Appeal for the Second Appellate District cavalierly stated on October 16, 2019.  The case, Dobbs v. City of Los Angeles (2019) 2019 Cal. App LEXIS 1027, involved injuries sustained by Ms. Dobbs when she struck a concrete pillar, or bollard, while walking outside the LA Convention Center.

Ultimately, the trial Court granted summary judgment for the City on the Theory of Design Immunity and dismissed Ms. Dobbs’ case.  Ms. Dobbs appealed this ruling.

The purpose of design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design.  [T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.  Martinez v. County of Ventura (2014) 225 Cal. App. 4th 364, 369

Referring to the statute in which this immunity is codified, it has been held:

Section 830.6 makes it quite clear that ‘the trial or appellate court’ is to determine whether ‘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. Cornette v. Dept. of Transportation, (2001) 26 Cal.4th  63, 66

The Court in the Dobbs matter ruled:

  1. Discretionary approval need not be established by the testimony of the people who approved the project. Testimony about the entity’s custom and practice can be proper even though the witness presented was not personally involved in the approval process.
  2. As to whether there is substantial evidence of the reasonableness of the public entity’s approval of the design, this question is one of law, not of fact. The statute grants immunity as long as reasonable minds can differ concerning whether a design should have been approved.

The Court accepted the declaration of a project manager who was not involved in the decision to approve the use of bollards outside the LA Convention Center but whom provided information about the customary discretionary approval process for such decisions.

As to the evidence presented by Ms. Dobbs’ expert as to the reasonableness of the use of the bollards outside the LA Convention Center, the Court stated:

The design need not be perfect but merely reasonable under the circumstances… a condition is not dangerous if a trial or appellate court determines the condition created only a minor risk of injury. The trial court rightly found this exercise of approval authority was reasonable. Key evidence included how this bollard looked on the sidewalk. It was big. It was designed to stop cars. It was obvious to pedestrians who looked where they were going. There is more proof of reasonableness, but we need not recite it because reasonable minds would agree this bollard in this location was conspicuous and not a danger to pedestrians.  Dobbs v. City of Los Angeles (2019 2019 Cal. App. LEXIS 1027, 3

The Court closed its opinion with the following, “Tort law incorporates common sense.  When one walks into a concrete pillar that is big and obvious, the fault is one’s own.”

As evidenced by the Dobbs case, the law is geared with protection of the public entity, not the injured party, in mind.  Needing simply to have someone familiar with the general “custom and practice” of the discretionary approval process indicate that it was followed and needing only to show that reasonable minds differ as to the reasonableness of the dangerous condition in question, is not a large hurdle to granting design immunity to a public entity.

If you are injured on public property, you should consult with attorneys that have experience handling cases involving dangerous conditions of public property.  Call us today at 951-682-6400.

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Mr. Serrano has been admitted to practice before California State and Federal Courts. He was named to the Super Lawyers’ 2012, 2013, 2014, 2015, and 2016 Southern California Rising Stars List, an honor awarded to no more than 2.5% of attorneys in Southern California each year. View Attorney Jean-Simon Serrano's Attorney Bio Here.

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