Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-01882
Sepulveda, J.
In a cross-median traffic collision, four men were killed and another injured. The injured man, and family members of the deceased, sued public entities in charge of the road upon allegations that the road was dangerous because it lacked a median barrier. The trial court granted summary judgment to the public entities on the basis of design immunity. (Gov. Code, § 830.6.) We affirm the judgments.
I. FACTS
On the morning of September 10, 2004, Kevin Lujan negligently drove his vehicle across the center yellow line into an opposing lane of traffic on Vasco Road in Contra Costa County. In a head-on collision, Lujan’s vehicle struck a pickup truck with five occupants, killing all but one of the occupants. The survivor, and family members of the deceased, sued Lujan and other parties, including Contra Costa County (County) and Contra Costa Water District (District). Plaintiffs allege that the County and District maintain Vasco Road, and that the road is dangerous. This appeal is concerned exclusively with these public entity defendants.
Three complaints were consolidated in the trial court. One action was brought by the accident survivor Ignacio Ventura with family members of decedents Jose Villagomez, Jesus Gutierrez and Jorge Alejandre (No. C05-02000). A second action was brought by family members of decedent Ignacio Alejandre (No. C05-01882). A third action was brought by the landscaping company (and its insurer) that employed the accident victims, seeking reimbursement of workers’ compensation benefits (No. C05-01934). The trial court entered judgment in favor of the County and District against all three groups of plaintiffs. The Villagomez plaintiffs filed a single notice of appeal for both defendants. The Alejandre plaintiffs filed separate notices of appeal for each defendant. We consolidated the three appeals for purposes of briefing, argument, and decision. The Alejandre plaintiffs filed briefing on appeal, in which the Villagomez plaintiffs joined.
Vasco Road was designed and constructed in the 1990s by the District as part of the District’s Los Vaqueros Reservoir Project. The District completed construction in 1996, and reportedly transferred the road to the County. Vasco Road is 11 miles long and was designed without a median barrier. The northbound and southbound lanes are separated by yellow double lines. At the accident location, Vasco Road is a two-lane roadway (one northbound and one southbound) with an additional southbound slow-moving vehicle lane. The right-hand southbound travel lane is designed for slower moving traffic and the left-hand southbound travel lane is designed as a passing lane.
Plaintiffs concede that the road was reasonably designed when constructed in 1996. Plaintiffs’ contention is that the road design—particularly the lack of a median barrier—has become dangerous because of a change in physical conditions. Plaintiffs contend that the road has experienced increases in traffic volume, cross-median accidents, and vehicle speeds. The average daily traffic on Vasco Road increased from 16,322 vehicles per day in 1996 to 21,744 vehicles per day in 2003, an increase of 32.9 percent. Vasco Road collision data from 1999 through mid-September 2004 list one cross-median collision in 1999, twelve in 2000, seven in 2001, four in 2002, seven in 2003, and two in 2004. Vehicle speed surveys show the 85th percentile speed (the speed at or below which 85 percent of the drivers are traveling) to be 66 miles per hour at one end of the road, and 64 miles per hour near the other end of the road. The segment of road where the accident occurred generally has a posted speed limit of 55 miles per hour and a design speed of 65 miles per hour. A traffic engineer retained as an expert witness by plaintiffs opined that a dangerous condition of public property existed at the accident site “[g]iven the roadway configuration, the traffic volumes, the accident history, and the average speed of the vehicles on the roadway.”
II. DISCUSSION
A public entity is generally liable for injury caused by a dangerous condition of its property. (Gov. Code, § 835.) An affirmative defense to such liability is design immunity. (Gov. Code, § 830.6; Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 69 (Cornette).) “[A] public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette, supra, at p. 69.) “The rationale for 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.” (Ibid.)
Design immunity is not perpetual. “[D]esign immunity persists only so long as conditions have not changed.” (Baldwin v. State of California (1972) 6 Cal.3d 424, 434.) If an entity “has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.” (Ibid., fn. omitted.) While the defendant public entity has the burden of showing the applicability of design immunity, the burden of production shifts to plaintiff to establish loss of the immunity from changed physical conditions. (Cornette, supra, 26 Cal.4th at pp. 69, 72.) “[T]o demonstrate loss of design immunity a plaintiff must establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous conditions thus created; and (3) the public entity had a reasonable time to obtain funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Id. at p. 72.)
Plaintiffs here admit that Vasco Road was reasonably designed when constructed in 1996, and thus effectively concede that defendants met their initial burden of proving design immunity. The disputed issue is whether plaintiffs have shown a loss of design immunity. It was plaintiffs’ burden, on the motion for summary judgment, to produce evidence establishing a triable issue of material fact concerning whether the design became dangerous because of a change in physical conditions. (Code Civ. Proc., § 437c; Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 807 (Mirzada).) The trial court ruled that plaintiffs failed to present a triable issue of fact on this point. We review that ruling de novo, Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1346, and conclude that the trial court was correct.
“[D]esign immunity is not lost simply because the design is operating under changed physical conditions. There must be evidence that the design, under changed physical conditions, has produced a dangerous condition of which the [public entity] is aware.” (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 737.) Plaintiffs failed to present evidence of a dangerous condition. The evidence presented here, of traffic volume, cross-median accidents, and vehicle travel speeds, was insufficient to raise a triable issue of fact.
As noted above, the average daily traffic on Vasco Road increased from 16,322 vehicles per day in 1996 to 21,744 vehicles per day in 2003, an increase of 32.9 percent. It is well-settled that “[a]n increase in traffic alone, however, is insufficient to establish the loss of the design immunity. Without more, an increase in traffic proves nothing.” (Mirzada, supra, 111 Cal.App.4th at p. 808; accord Higgins v. State of California (1997) 54 Cal.App.4th 177, 188 [“[a]bstract numbers prove nothing”].) Traffic volume increases far greater than the one here have failed to defeat summary judgment for public entities claiming design immunity. (Mirzada, at p. 808 [three-fold increase in traffic volume]; Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52, 55 [doubled traffic volume]; Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 59 [traffic volume more than doubled]; Alvarez v. State of California, supra, 79 Cal.App.4th at p. 737 [doubled traffic volume].) A plaintiff fails to prove loss of design immunity from traffic volume increases without evidence that the traffic volume exceeds design capacity (Mirzada, supra, at p. 808) or is coupled with a statistically aberrant accident history (Alvarez, supra, at pp. 737-738). Plaintiffs do not provide evidence of the design capacity of Vasco Road, and the accident history is unremarkable.
Plaintiffs claim that Vasco Road has “a skyrocketing accident history,” but the claim is founded on a selective reading of collision data. As noted above, Vasco Road collision data from 1999 through mid-September 2004 list one cross-median collision in 1999, twelve in 2000, seven in 2001, four in 2002, seven in 2003, and two in 2004. Plaintiffs focus on the “pronounced jump in the year 2000” for cross-median accidents without acknowledging that the years since 2000 have shown far fewer cross-median accidents. It is also significant that there has been only one cross-median fatal collision annually from 2000 through mid-2004. For the previous cross-median accidents that did occur, plaintiffs produced no evidence that those accidents along 11-mile long Vasco Road were near the accident site. (See Mirzada, supra, 111 Cal.App.4th at p. 809 [collision data for undefined “ ‘vicinity’ ” of accident insufficient on summary judgment].) Plaintiffs also failed to present any evidence that the number of cross-median accidents on Vasco Road was above the norm for comparable roadways. (See Higgins v. State of California, supra, 54 Cal.App.4th at p. 188 [defense summary judgment where accident rate was below state standard for investigating need for median barrier].)
Plaintiffs try to remedy this failure of proof by including a chart in their appellate brief that extrapolates an accident rate for Vasco Road from a traffic study and compares it with surmised accident rates for roads considered (and found not dangerous) in previous cases. We disregard this extraneous evidence: “Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal.” (Knapp v. City of Newport Beach (1960) 186 Cal.App.2d 669, 679.)
Plaintiffs’ evidence of vehicle speeds is also insufficient to raise a triable issue of fact on the dangerousness of Vasco Road. The segment of road where the accident occurred generally has a posted speed limit of 55 miles per hour and a design speed of 65 miles per hour. Plaintiffs presented evidence of vehicle speed surveys, which show the “85th percentile speed” to be 66 miles per hour at one end of the road, and 64 miles per hour near the other end of the road. Plaintiffs argue that this evidence shows that drivers on Vasco Road routinely exceed the posted speed limit. The argument overstates the evidence. The speed survey shows only that 85 percent of the drivers are traveling at or below 66 miles per hour at the surveyed locations. (See Wyckoff v. State of California, supra, 90 Cal.App.4th at p. 60 [explaining percentile speed survey].) There is no evidence as to the percentage of drivers traveling above 55 miles per hour on Vasco Road, much less the percentage of drivers exceeding the speed limit near the accident site. In any event, the evidence that was presented shows that the vast majority of drivers are traveling within one mile per hour of the design speed for the roadway. There was also no evidence of a direct correlation between higher travel speeds and cross-median accident rates. (See ibid. [noting lack of correlation].)
Plaintiffs argue that the County’s own traffic engineers concluded that Vasco Road is unsafe and that a median barrier is necessary. Plaintiffs, again, overstate the evidence. In March 2004, a safety improvement study commissioned by the County suggested a “series of safety improvements” including installation of a median barrier along Vasco Road. A median barrier was estimated to cost $34 million, and the County opted for other safety improvements, including shoulder rumble strips, flexible median delineators along one section of road, warning signs, and increased law enforcement. In 2005, the County revisited the desirability of a median barrier and commissioned a study to see if barrier costs could be reduced by widening the road less than originally proposed to accommodate the barrier. A draft study issued in March 2005 recommended a roadway configuration with a concrete median barrier, and noted on-going efforts to refine cost estimates and to obtain funding for installation of a barrier.
The County’s determination that a median barrier would improve safety along Vasco Road is not an admission that Vasco Road is dangerous without the barrier. (Alvarez v. State of California, supra, 79 Cal.App.4th at p. 739.) Plaintiffs concede as much in recognizing that “the recommendations of Defendants’ experts prior to the time of the Alejandre accident do not conclusively prove that there was a changed condition or a dangerous condition of public property.” But plaintiffs argue that the experts’ recommendations raise a triable issue of fact for the jury. Plaintiffs are mistaken.
Previous cross-median accident cases have affirmed summary judgment for defendants on the basis of design immunity despite evidence that a median barrier was recommended by public entity experts. (Mirzada, supra, 111 Cal.App.4th at p. 808; Alvarez v. State of California, supra, 79 Cal.App.4th at pp. 738-739.) “Median barriers result in a trade-off. They prevent nearly all cross-median accidents, but usually result in an overall increase in accidents and injuries.” (Alvarez, supra, at p. 724; accord Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1159-1161.) A public entity weighs the benefit of a median barrier against its detriment, and a decision to install a barrier is evidence of the public entity’s concern with maximizing safety under the circumstances; it is not evidence that the existing condition is unsafe. (Alvarez, supra, at p. 739.) A public entity’s “determination that benefit now outweighs detriment and a barrier is indicated does not constitute a determination that the barrier less median is a dangerous condition or that conditions have changed so that design immunity has ended. Neither the installation of other median barriers nor the determination and recommendation to install a barrier at the site of the accident constitute an admission that the median on [the date of the accident] was a dangerous condition.” (Ibid.)
Finally, plaintiffs argue that the trial court improperly weighed the credibility of their expert witness in dismissing the expert’s opinion that Vasco Road is dangerous. Plaintiffs direct our attention to the trial court’s comments at the summary judgment hearing, where the court challenged plaintiffs’ argument that their traffic engineer’s opinion that a dangerous condition existed at the accident site conclusively established loss of design immunity. The court disagreed, and criticized the expert’s declaration as containing more advocacy than facts. The court told plaintiffs’ counsel: “I’ve got to tell you when you put in a declaration like that we go, ‘Well, what a whore this guy is.’ I mean, here he is just arguing the case, arguing the case, arguing the case. He doesn’t state facts primarily or scientific questions. He just argues the hell out of your case. And it turns us off. I mean, we go, ‘This guy would say anything.’ ”
We review the trial court’s ruling, not its rationale, so the trial court’s reason for granting summary judgment (even if improper) is irrelevant on appeal. (Laabs v. City of Victor ville (2008) 163 Cal.App.4th 1242, 1251.) In any event, while the court’s use of a derogatory term for plaintiffs’ expert was ill-advised, the record as a whole shows that the court properly assessed the summary judgment motion. The court was right to fault plaintiffs’ expert declaration for its conclusory opinions. “[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’ ” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.)
The traffic engineer restated information from a traffic study concerning traffic volume, accident history, and vehicle travel speeds, and summarily concluded that these items showed changed physical conditions. The expert then jumped to the opinion that these changed conditions rendered Vasco Road unsafe. Notably absent from the declaration was any meaningful analysis connecting the facts with the ultimate opinion. The trial court, in its remarks at the hearing and more fully in its written decision, properly recognized that an expert’s conclusory opinion does not create a triable issue of fact sufficient to defeat summary judgment. “An expert’s speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. [Citations.] Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106.) Defendants were entitled to summary judgment.
III. DISPOSITION
The judgments are affirmed.
We concur: Ruvolo, P.J., Rear don, J.