Opinion
For Opinion on Hearing, see 102 Cal.Rptr. 305, 497 P.2d 777.
Opinion on pages 785 to 790 omitted
HEARING GRANTED
See 7 Cal.3d 318 for Supreme Court opinion.
[98 Cal.Rptr. 716]Morgan, Beauzay & Hammer, San Jose, for plaintiffs and appellants.
Harry S. Fenton, Chief Counsel, Sacramento, John P. Horgan, James T. Johnson, William R. Edgar, Donald M. Velasco, San Francisco, for defendant and respondent.
HAROLD C. BROWN, Associate Justice.
This is an appeal from a judgment of nonsuit granted in favor of the State of California in an action wherein the plaintiff sought to prove that the state failed to properly grade a highway so that a curve could be negotiated by a vehicle traveling within the speed limits. It was also claimed that the state failed to warn of the dangerous condition.
Appellants claim (1) that animosity existed on the part of the trial judge; (2) that the government design immunity had not been established; (3) that there was a failure to warn; and (4) that there was evidence of liability on grounds other than design of the highway to allow jury consideration.
We have examined appellants' claim that the judge displayed such animosity as to preclude proper consideration of the motion for nonsuit. This contention is without merit. The trial judge did interrupt a lay witness who was describing injuries on the ground that such evidence would be more authoritative from specialists. This [98 Cal.Rptr. 717]was a proper exercise of the court's power to prevent unnecessary consumption of time. Interruption of another witness was well justified for the reason that the witness was unnecessarily elaborating on his answers to questions. Other similar specifications of animosity on the part of the trial judge are equally meritless.
Finally, appellants assert that the judge revealed bias by his failure to draw the same inference from certain pictures as was drawn by counsel. Nothing in the remarks which were made in an in-chambers discussion on the motion for nonsuit revealed anything other than a difference in opinion as to the significance of the pictures. A decision unfavorable to one side is not the bias which is misconduct but is the inevitable result of submitting the case to a court of law. The validity of the court's decision on the nonsuit is the subject of the discussion of the remaining issues.
Appellants next contend that the elements of design immunity of the state were not established.
A public entity may be held liable under Government Code section 835 for injuries caused by a 'dangerous condition' of its property. If the injury is caused by the plan or design of public property, however, the public entity may be immune from such liability if the conditions of Government Code section 830.6 are fulfilled. 'Section 830.6 declares in pertinent part that a public entity is not liable for an injury caused by the plan or design of a construction of public property which has been approved in advance by a public body or employee exercising discretionary authority, if the trial or appellate court determines that there is any substantial evidence upon the basis of which a reasonable public employee or body could have adopted or approved the plan or design. The reasonableness is to be judged as of the time of the adoption or approval. [Citation.]' (Becker v. Johnston, 67 Cal.2d 163, 172, 60 Cal.Rptr. 485, 490, 430 P.2d 43, 48.)
The appellants presented sufficient evidence to resist a nonsuit relative to the existence of a 'dangerous condition' under Government Code section 830, subdivision (a). It is clear, however, that the elements of the immunity of Government Code section 830.6 were established.
The record in this case contains a copy of the plans for the section of the highway in question. These plans were identified as being prepared by the then county surveyor in the performance of his duties by the declaration of Frank B. Lewis, the present county surveyor. Copies of the minutes of the Board of Supervisors of Santa Cruz County were presented to show that the board had approved the design plans before construction. The authority of the board to approve the plans is not disputed. There is also in the record a declaration of C. F. Greene, a civil engineer, stating that the design of this section of Highway 9 '* * * including the width of the highway, the curves necessary to carry the highway from the higher to lower elevations at a safe and acceptable grade, and the banking and superelevation of the various curves, * * * were and are reasonable design features.' This declaration is not a part of the present record on appeal. It was not offered on the motion for nonsuit but is an exhibit to the motion for summary judgment and has been forwarded to this court in the superior court file. Since Government Code section 830.6 provides that either the trial court or the appellate court may make the determination that there is substantial evidence of the reasonableness of approval of the design, the fact that the declaration was not before the trial court on the motion for nonsuit does not preclude us from considering it.
Finally, the testimony of James F. Drake established that he presently existing road conformed to the design adopted in the late 1920's with a slight variation to be expected after 40 years.
We believe that the deficiencies in the design immunity defense which existed in [98 Cal.Rptr. 718]cases cited by the appellants are not present in the case before us. In Hilts v. County of Solano, 265 Cal.App.2d 161, 71 Cal.Rptr. 275, the defense of design immunity was not pleaded nor was any evidence of design approval presented. In Gardner v. City of San Jose, 248 Cal.App.2d 798, 57 Cal.Rptr. 176, the defense was not raised. In Johnston v. County of Yolo, 274 Cal.App.2d 46, 79 Cal.Rptr. 33. it was established that the road was built despite disapproval of the government engineer.
Appellants next argue in effect that the design immunity is not available in this case because the state's failure to warn of the dangerous condition of the curve constituted a trap. This contention is not borne out by the statutes in question or the case law.
Government Code section 830.8 provides that the mere failure to provide various traffic signs does not create a 'dangerous condition' in itself. (Pfeifer v. County of San Joaquin, 67 Cal.2d 177, 184, 60 Cal.Rptr. 493, 430 P.2d 51.) Government Code section 830.8 provides that a public entity is not liable for an injury caused by the failure to provide such warnings. The section goes on to state, however, that if there is a 'dangerous condition,' the public entity could be liable for a failure to warn of the condition.
Appellants argue without citation to authority that this is an exception to the design immunity statute. To the contrary, the California Supreme Court in Becker v. Johnston, supra, 67 Cal.2d 163, 173, 60 Cal.Rptr. 485, 430 P.2d 43, considered and rejected the contention that a failure to warn of a 'dangerous condition' could constitute a basis for liability in the face of design immunity applicable to that particular 'dangerous condition.'
It is also contended that there was sufficient evidence of liability on grounds other than design of the highway which should have been left to the jury.
Section 830.6 does not immunize the public entity 'from liability caused by negligence independent of design, even though the independent negligence is only a concurring, proximate cause of the accident.' (Flournoy v. State of California, 275 Cal.App.2d 806, 811, 80 Cal.Rptr. 485, 489.) The appellants attempted at trial to produce evidence of independent negligence in maintaining the road. They now contend that the jury should have been allowed to decide whether or not a 'rut' existed on the shoulder of the road which might have caused the accident. The court, however, was justified in concluding that there was no substantial evidence of the existence of such a rut.
During the argument on the motion for nonsuit, the appellants' attorney produced a group of five pictures taken by the highway patrol. Two of the pictures show a 'road work ahead' sigh in the vicinity of the accident. Appellants now argue that from this is can be inferred that a defect in the road caused the accident. As the court pointed out, however, the pictures also show that there was no defect in the road or rut beside the road in the immediate vicinity of the accident.
When after viewing the evidence in the light most favorable to the appellant, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of the nonsuit is warranted. (O'Keefe v. South End Rowing Club, 64 Cal.2d 729, 746, 51 Cal.Rptr. 534, 414 P.2d 830.)
The judgment is affirmed.
DRAPER, P. J., and CALDECOTT, J., concur.