Opinion
Rehearings Denied July 24, 1967.
Stephen I. Zetterberg and Lawrence C. George, Claremont, for plaintiff and appellant.
Harry S. Fenton, Chief Counsel, R. B. Pegram, Deputy Chief Counsel, Richard L. Franck and George W. Clements, Los Angeles, for defendant and respondent.
OPINION
WHELAN, Associate Justice.
This appeal is by the plaintiff from a judgment entered upon the granting of defendant's motion for summary judgment.
Plaintiff's complaint alleged that plaintiff suffered injuries when he operated a motorcycle on June 14, 1964 about 3:45 p.m. southbound on a public highway known as the Newport Freeway and, while doing so collided with an automobile stationed in the same traffic lane that was waiting to make a left turn onto McFadden Street; that the collision was caused by defendant's negligence in designing and programming the construction project then and there existing so as to create conditions of visibility and traffic flow constituting a hidden, extreme and unforeseeable hazard to the safe movement of southbound traffic whenever a vehicle attempted to execute a left turn off said freeway southbound and onto McFadden Street.
The complaint alleged additionally that at said time and place defendant knew, or should have known, that an extreme hazard existed, but defendant negligently failed to provide warning of the danger to southbound traffic, or to take any reasonable steps to remove said hazard.
Defendant made two motions for summary judgment. The first was denied on July 6, 1965 because the declaration in support of the motion for summary judgment did not contain any evidence, other than the plans, upon which the court could have made a determination as to whether "a reasonable legislative body or other body or employee" could have approved the plan or design in question.
The court also was of opinion that plaintiff "should be afforded the opportunity to complete his discovery proceedings in order to enable him to respond properly to a Motion for Summary Judgment."
The second motion, which was reinforced by an additional declaration of a project engineer of the Department of Public Works, was made after a pre-trial conference order which saved to both sides the right to move for summary judgment.
The following agreed or admitted matters appear from a joint pre-trial statement filed November 8, 1965, incorporated in and made a part of the pre-trial conference order:
The weather at the time of collision was clear and sunny, the pavement dry; the car struck by plaintiff had been stationary for some time but had been unable to execute a left turn because of the volume of northbound traffic; a rear tail-fin of the car was struck by plaintiff; the posted speed limit was 45 m. p. h. All depositions and discovery proceedings were then complete.
Plaintiff did not file any affidavit or declaration in opposition, but presented four photographs of the highway taken from different positions.
The motion was granted on February 3, 1966.
MATTERS IN SUPPORT OF THE MOTION FOR SUMMARY JUDGMENT
The stretch of detour under consideration had a width of 24 feet for the southbound lanes until it reached a point 450 feet north of McFadden Street; the west side of the roadway north of that point was somewhat wider to permit traffic to pass off to the right up an unopened ramp. From the point where the two 12-foot lanes ended, the west half of the roadway narrowed gradually until at a point about 250 feet north of McFadden Street it was 12 feet wide. At about 125 feet north of McFadden Street the north-south portion of the roadway widened again for the entrance of future traffic from another unopened ramp. The roadway south from the point where the two 12-foot southbound lanes ended was the pre-existing Tustin Avenue, which had been widened, however, from 10 feet to 12 feet.
Prior to its use in receiving traffic from the freeway, Tustin Avenue was crossed at right angles by McFadden Street, into which and from which traffic was permitted from and into Tustin Avenue as well as across Tustin.
In the overall design of the freeway project, the use of Tustin to receive the freeway traffic was planned and mapped as a "Detour Plan."
The project engineer who designed the detour plan set out in his declaration:
"*** that said McFadden Avenue detour was designed to allow southbound traffic in the new construction area to turn both east and west on McFadden Avenue; that said detour was designed to allow access to McFadden Avenue for the following reasons:
"1. The proposed detour would follow primarily the location of the then existing Tustin Avenue and that said Tustin Avenue consisted of two lanes, one for southbound and one for northbound traffic, and prior to the new construction allowed access to McFadden Avenue both east and west.
2. That the traffic flow patterns established by traffic count studies indicated considerable need for continuing access to McFadden Avenue in both east and west directions.
3. That no other access road was available which was more satisfactory than McFadden Avenue.
4. That the lanes of traffic would be wider on June 14, 1964 when the detour was in effect than the width of Tustin Avenue prior to construction in that prior to construction the two traffic lanes of Tustin Avenue were ten feet each in width and after construction of the detour said lanes were twelve feet each in width.
5. That automobiles turning both east and west on McFadden Avenue would be clearly visible to southbound traffic on the McFadden detour.
***
*** the allowance of access to McFadden Avenue both east and west for southbound traffic on the McFadden detour was under the conditions then prevailing a reasonable design calculated to maximize efficient movement of traffic while minimizing difficulty and danger to the traveling public."
The manner of use and the condition of Tustin Avenue, and the Tustin Avenue-McFadden Street intersection portions of the detour plan, on the date in question conformed to the approved design.
Defendant, in making its motion for summary judgment, and the court in granting it, relied upon the immunity declared in section 830.6, Government Code.
Section 830.6, Government Code reads: "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."
QUESTIONS RAISED BY PLAINTIFF
1. Is Government Code, section 830.6 an affirmative defense requiring substantial evidence of discretionary planning with a view to specific hazards?
2. Has defendant met the burden of showing the applicability of Government Code section 830.6?
3. Is summary judgment precluded by the nature of the issues involved in a defense under Government Code, section 830.6?
Plaintiff contends additionally that he is entitled to trial under appropriate instructions as to whether the claimant of immunity under Government Code section 830.6 has sustained the burden of producing substantial evidence upon the basis of which a reasonable employee could have adopted the plan and design of the McFadden detour.
THE INVOCATION OF SECTION 830.6, GOVERNMENT CODE AS AN AFFIRMATIVE DEFENSE
In Teall v. City of Cudahy, 60 Cal.2d 431, at page 435, 34 Cal.Rptr. 869, at page 871, 386 P.2d 493, at page 495, it is said:
"It does not appear from the facts alleged in the complaint, however, whether or not the new defense provided by section 830.6 is available to defendant. Until defendant raises that defense by appropriate pleadings, it would be premature to consider whether it may constitutionally apply to a cause of action that accrued before section 830.6 was enacted."
The exemption provided by section 830.6 is therefore an affirmative defense. (Dahlquist v. State of California, 243 Cal.App.2d 208, 214, 52 Cal.Rptr. 324.) The question in the case at bench, however, is academic since the defense has been asserted affirmatively.
PLAINTIFF IS NOT ENTITLED TO A JURY TRIAL ON THE QUESTION OF EXEMPTION UNDER SECTION 830.6, GOVERNMENT CODE.
It is clear from a reading of the section that it is a question of law 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." (Govt.Code § 830.6.)
We must reject out of hand the contention that plaintiff was entitled to have a jury pass upon the availability of the defense. Under section 830.6, it is for the court, either at the trial or appellate level, to determine whether there was substantial evidence upon the basis of which a reasonable public employee could have adopted the design.
DEFENDANT HAS MET THE CONDITIONS IMPOSED BY SECTION 830.6, GOVERNMENT CODE TO OBTAIN THE BENEFIT OF THAT SECTION.
The general rule is that where the moving affidavit is uncontroverted, the trial court is entitled to accept as true, for the purposes of the motion for summary judgment, the facts stated therein, provided they are within the personal knowledge of the affiant and are facts to which he could competently testify. (Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334.)
Plaintiff states that the declaration of the project engineer fails to show that he considered, understood or dealt with the problem under section 830.6 "that the design of McFadden Street detour created an intermittent stopcock for the flow of traffic south on the Newport freeway."
We do not agree that the declaration of the project engineer, to be sufficient, would have to be in the language chosen by plaintiff's counsel in presenting his views of the situation. The declaration and its incorporated material showed the narrowing of the roadway north of McFadden Street, and that southbound cars seeking to turn left would be clearly visible to other southbound traffic. Consideration was given to the presence of southbound traffic that had come from a two-lane onto a one-lane roadway for such traffic and to the presence of cars seeking to make a left turn, and the necessity of their being seen by southbound traffic behind them.
In passing upon the question of law presented, the trial court may have taken into consideration the holding in such cases as Waldorf v. City of Alhambra, 6 Cal.App.2d 522, 45 P.2d 207, where a street to the south of an intersecting street was 14 feet narrower on one side of its center line than on the north side of the intersection.
We agree with the trial court's decision that there was substantial evidence presented in support of the motion for summary judgment upon the basis of which a reasonable employee would have adopted and approved the plan or design.
A DEFENSE UNDER SECTION 830.6, GOVERNMENT CODE MAY BE THE BASIS OF A SUMMARY JUDGMENT.
Since it is a question of law whether the conditions of section 830.6 have been met, the defense provided by the section may be the basis of a summary judgment.
DANGEROUS AND DEFECTIVE CONDITION
So far as plaintiff's alleged cause of action is based solely upon the claim of negligence in making and adopting a faulty and defective design, the carrying out of which produced a dangerous and defective condition, no issue of fact was presented, the conditions for exemption from liability declared by section 830.6, Government Code having been fulfilled.
We are of opinion that section 830.6 Government Code does not in every case protect against liability for failure to correct or warn against such a known and demonstrated hazard.
There remains therefore the question whether, despite the original reasonableness of the approval of the design, liability might not subsequently arise from a dangerous and defective condition resulting from the execution of the design in the manner planned, demonstrated to be such in the use of the improvement in the manner intended, and of the dangerousness of which the defendant has learned or should have learned as the result of such experience, and if so whether plaintiff's alleged cause of action is based in part upon such a theory.
The question, of course, is not one of pleading. The complaint sufficiently states a cause of action upon either theory, because the allegations as to design and of putting the design into operation supply for pleading purposes the necessary elements of knowledge and of negligent action. The question, rather, is whether the material presented in support of the motion for summary judgment negated all questions of fact projected by the pleading of a cause of action on either theory.
In determining, on a defendant's motion for summary judgment, whether triable issues are presented, the court may consider the allegations of the complaint to the extent that they are not controverted by the affidavits of the moving party. (Elliott v. Occidental Life Ins. Co., 225 Cal.App.2d 510, 514-515, 37 Cal.Rptr. 525.)
In an attempt to avoid prolixity, we shall in discussion of this problem refer to possible innate but undiscovered hazard in an approved design as the "inherent hazard"; to a hazard that has been demonstrated in the use of an improvement executed according to the approved design as the "demonstrated hazard."
Section 835, Government Code defines the conditions under which a public entity is liable for injuries caused by the dangerous condition of public property.
Section 835, Government Code provides: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
Prior to the adoption of section 830.6, Government Code, a public entity could be liable under section 53051, Government Code or its predecessor, the 1923 Public Liability Act (Stats.1923, c. 328, p. 675), for a dangerous condition resulting from governmental action in the adoption of a plan of improvement without provision for exemption. (Teall v. City of Cudahy, supra, 60 Cal.2d 431, 434-435, 34 Cal.Rptr. 869, 386 P.2d 493; George v. City of Los Angeles, 11 Cal.2d 303, 307, 79 P.2d 723; Sandstoe v. Atchison T. & S. F. Ry. Co., 28 Cal.App.2d 215, 217-218, 82 P.2d 216; Kaufman v. Tomich, 208 Cal. 19, 280 P. 130 [here the construction operated directly to cause property damage]; Dahlquist v. State of California, supra, 243 Cal.App.2d 208, 209-210, 52 Cal.Rptr. 324; Bennett v. Kings County, 124 Cal.App. 147, 12 P.2d 47; Belcher v. City & County of S. F., 69 Cal.App.2d 457, 460, 158 P.2d 996 [dictum]; Brooks v. City of Monterey, 106 Cal.App. 649, 290 P. 540; Callahan v. City & County of San Francisco, 249 A.C.A. 799, 57 Cal.Rptr. 639.)
However, the cause of action for liability becouse of the dangerous condition of public property was the same whether that condition was the result of a defective design in constructing an improvement or of some affirmative act on the part of a public employee, of inaction with regard to deterioration or to a condition brought about by natural forces or the actions of third parties, or of other changes of condition.
There were, however, procedural questions whose answers might depend upon the cause of the dangerous condition.
Thus in pleading a cause of action, it was necessary to allege the dangerous and defective condition of the property, knowledge of the existence of the condition and of its dangerous character on the part of some officer or agent of the defendant who possessed the power to rectify the condition, and neglect to repair within a reasonable time after notice.
However, the requirement of pleading knowledge or notice would be met if it were alleged, and the requirement of proof in that regard similarly would be met by proof that the public entity had created the dangerous condition. (Wise v. City of Los Angeles, 9 Cal.App.2d 364, 366-367, 49 P.2d 1122, 50 P.2d 1079.)
Since the enactment of the 1963 legislation defining the limits and conditions of liability for the alleged dangerous condition of public property, it is now necessary to prove, and, we think, to allege all the requirements of section 835, Government Code, namely: that (1) the highway was in dangerous condition at the time of the injury; (2) the injury was proximately caused by that dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and, that either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition, or (b) the public entity had actual or constructive notice of the dangerous condition for a sufficient period of time prior to the injury to have taken measures to protect against the dangerous condition. (Dahlquist v. State of California, supra, 243 Cal.App.2d 208, 212, 52 Cal.Rptr. 324.)
The requirement of pleading facts showing that the condition had existed a sufficient length of time to impart constructive notice, in the absence of actual knowledge, and to take remedial measures, is to prevent what in this type of situation is the pleading of mere conclusions.
"Alleging that the city ought to have had notice does not allege a fact, and is not the equivalent of an allegation that the defect had existed for such time as to charge the city with constructive notice of its existence." (San Marco v. City of New Haven, 100 Conn. 289, 123 A. 439, 440.)
Liability under section 835, Government Code, in the factual situation presented here, could be based only upon subdivision (b) for the following reasons: Liability under subdivision (a) would seem to be exempted by reason of section 830.6 when the court has found that there was substantial evidence upon the basis of which a reasonable public employee could have adopted the plan.
The defendant's liability, if any, may not be based upon a claimed knowledge or foreseeability of the hazard to be created by the execution of the approved design in the manner intended if the conditions have been met for an exemption from liability under section 830.6, Government Code.
Under subdivision (b) of section 835, the defendant must have had actual or constructive notice of the dangerous condition. It is clear that defendant, because of the adoption of the plan, had actual notice of the condition, but because of the protection of section 830.6 cannot be held to have had either actual or constructive notice, merely because of the adoption of the plan, that the resulting condition was dangerous.
Again, to satisfy the requirements of section 835.2, subdivision (a), the defendant, merely because of its knowledge of the improved plan, would not be held to have known or to have been under an obligation to know of the demonstrated hazard.
It seems, therefore, that where an initial case for exemption under section 830.6 has been established, subsequent liability under section 835 must rest upon constructive notice as defined by section 835.2, subdivision (b) by proof that the demonstrated hazard had been made manifest for a sufficient period of time to charge defendant with notice of the hazard; or upon proof of actual notice of such demonstrated hazard under subdivision (a) of section 835.2, Government Code.
Were the allegations of the complaint such that in support of the motion for summary judgment it was necessary to negate (a) the existence of a demonstrated hazard; (b) that the defendant had learned as a matter of fact of the demonstrated hazard; (c) that the demonstrated hazard had existed for such a length of time that defendant knew or should have known of it?
In the documents filed by defendant in support of its motion for summary judgment, there is no express denial of the allegations that "defendant knew, or should have known that an extreme hazard existed."
The affidavits and other material in support of the motion for summary judgment were sufficient for a determination that a reasonable public employee would have adopted the design; it therefore seems that such material was sufficient to negate the existence of knowledge or the duty to know, which otherwise might have been inferred from the creation of the design, that its execution would create a dangerous condition.
That being so, the allegations that defendant designed the condition may not, on motion for summary judgment, be called upon to supply any deficiency of the other allegations of the complaint based upon the theory of a demonstrated hazard that had either been brought directly to the attention of the defendant's responsible authorities or had existed for a sufficient length of time to impart notice to defendant and to enable defendant to take remedial measures.
Unaided by allegations as to the design and of knowledge to be imputed to defendant from the fact of creating and carrying out the design, the complaint does not present as triable issues of fact the following matters: that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred; that the condition had existed for such a period of time and was of such an obvious nature that defendant in the exercise of due care should have discovered the dangerous character of the condition.
In a memorandum filed January 17, 1966 in the trial court, plaintiff stated:
"Plaintiff's theory of the case is that the accident resulting in his injuries was due to negligent design of the inadvertent type, which design resulted in a condition requiring careful traffic controls."
However, plaintiff in his opening brief claims the base of his cause of action is sufficiently broad to include the maintenance of a dangerous condition that has been demonstrated to be such in the use of the highway.
See appellant's opening brief, pages 15 [lines 9-13] and 16 [lines 8-11]; see appellant's closing brief, pages 7 [lines 6-10] and 10 [lines 22-25].
In his brief on appeal he states that defendant had "the obligation under Government Code, section 830.8 to deal with the danger, either ab initio, or when it manifested itself after the trap was opened, a day or so before appellant was injured."
The same was suggested in the brief filed with the trial court on June 7, 1965 by plaintiff in opposition to defendant's first motion for judgment on the pleadings, in which the following appears:
"*** plaintiffs will avow and represent to the Court by analogy to an offer of proof, that they expect further discovery proceedings to yield valuable evidence on the following points:
1. In the interval commencing June 13, 1964, and ending on the evening of June 15, 1964, there were seven accidents investigated by the California Highway Patrol at the intersection of the McFadden detour and the Newport Freeway all of which were within the actual or constructive knowledge of defendant. Plaintiffs' was the fourth in this series."
The memorandum of points and authorities filed January 17, 1966, which was in opposition to the second motion for summary judgment, contains this language:
"*** we have a patent failure of safe maintenance for purposes here by defendant; we also have a record of prior accidents at the spot involved here."
Notwithstanding the unequivocal statements contained in plaintiff's unsworn memoranda, he made no affidavit to substantiate those representations. The certified record on appeal does not contain anything to support the representations.
We have scrupulously examined the record on appeal as well as the court file, including answers to interrogatories, and the depositions of plaintiff, his wife, a claims agent for the Division of Highways, and Robert J. Britton, an engineer for that division.
From the foregoing, it is clear that plaintiff knew what was necessary to prove if he were to rely upon something other than the theory of inherent hazard. The alternative theory of liability might have been presented by affidavits or by allegations in the complaint showing the facts to support such alternative theory. However, plaintiff did not by affidavit offer any such facts, and his complaint for the reasons discussed does not contain allegations for a cause of action on such alternative theory under section 835, Government Code that presented issues of fact when all inferences dependent upon the allegations of negligent design are held to have been negated as the result of the application of section 830.6.
Judgment affirmed.
GERALD BROWN, P. J., and COUGHLIN, J., concur.
"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
"(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
Section 835.2, Government Code provides:
"(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
"(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
"(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
"(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition."
Section 830, Government Code provides:
"As used in this chapter:
"(a) 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
"(b) 'Protect against' includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
"(c) 'Property of a public entity' and 'public property' mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity."
Section 830.2, Government Code provides:
"A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used."
Only the deposition of Britton, a resident engineer of the Division of Highways, discloses that on Sunday, June 14, 1964, after plaintiff's accident, Britton received a telephone call from a Highway Patrol officer that there had been two accidents, including that involving plaintiff, that day at the McFadden detour; the officer requested that because of the accidents he might close off McFadden Street; that was done on June 15 after consultation by Britton with ofcials of the City of Tustin, which was served by McFadden Street.
Britton's testimony showed also that there was a large sign marking the end of the freeway one mile north of McFadden Street, and another sign indicating "cross traffic ahead" some distance north of McFadden.
Having looked into the depositions for an explanation of plaintiff's reference to a record of accidents, we have noted in the deposition of plaintiff's wife that she was a passenger in a car which was followed by another car, after which came plaintiff on the motorcycle; the car with Mrs. Douglas in it passed to the right of the car later struck by plaintiff which already was stopped about halfway into the intersection; the car immediately in front of plaintiff also passed the stopped vehicle.