CACI 1123 Affirmative Defense—Design Immunity (Gov. Code, § 830.6)

New December 2014; Revised June 2016

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Give this instruction to present the affirmative defense of design immunity to a claim for liability caused by a dangerous condition on public property. (Gov. Code, § 830.6; see Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369 [169 Cal.Rptr.3d 880] [design immunity is an affirmative defense that the public entity must plead and prove].)

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 before construction; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The first two elements, causation and discretionary approval, are issues of fact for the jury to decide. (Id. at pp. 74–75; see also Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550 [100 Cal.Rptr.3d 494] [elements may be resolved as issues of law only if facts are undisputed].) The third element, substantial evidence of reasonableness, must be tried by the court, not the jury. (Cornette, supra, 26 Cal.4th at pp. 66−67; see Gov. Code, § 830.6.)

In element 1, select “its” if it is the governing body that has exercised its discretionary authority. Select “specifically delegated” if it is some other body or employee.

The discretionary authority to approve the plan or design must be “vested,” which means that the body or employee actually had the express authority to approve it. This authority cannot be implied from the circumstances. (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457 [192 Cal.Rptr.3d 376].)

•Design Immunity. Government Code section 830.6.

•“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. [Citation.]’ ‘ “[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, supra, 225 Cal.App.4th at p. 369, internal citations omitted.)

•“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, supra, 26 Cal.4th at p. 66.)

•“To prove [the discretionary approval element of design immunity], the entity must show that the design was approved ‘in advance’ of the construction ‘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 … .’ ‘Approval … is a vital precondition of the design immunity.’ ” (Martinez, supra, 225 Cal.App.4th at p. 369, internal citations omitted.)

•“A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.” (Rodriguez v. Department of Transportation (2018) 21 Cal.App.5th 947, 955 [230 Cal.Rptr.3d 852].)

•“In many cases, the evidence of discretionary authority to approve a design decision is clear, or even undisputed. … When the discretionary approval issue is disputed, however, as it was here, we must determine whether the person who approved the construction had the discretionary authority to do so.” (Martinez, supra, 225 Cal.App.4th at pp. 370−371, internal citations omitted.)

•“Discretionary approval need not be established with testimony of the individual who approved the project. A former employee may testify to the entity’s ‘discretionary approval custom and practice’ even if the employee was not involved in the approval process at the time the challenged plan was approved.” (Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947 [212 Cal.Rptr.3d 137], internal citation omitted.)

•“[T]he focus of discretional authority to approve a plan or design is fixed by law and will not be implied. ‘[T]he public entity claiming design immunity must prove that the person or entity who made the decision is vested with the authority to do so. Recognizing “implied” discretionary approval would vitiate this requirement and provide public entities with a blanket release from liability that finds no support in section 830.6.’ ” (Castro, supra, 239 Cal.App.4th at p. 1457.)

•“We conclude that the discretionary approval element of section 830.6 does not implicate the question whether the employee who approved the plans was aware of design standards or was aware that the design deviated from those standards. The issue of the adequacy of the deliberative process with respect to design standards may be considered in connection with the court’s determination whether there is substantial evidence that the design was reasonable. In addition, the discretionary approval element does not require the entity to demonstrate in its prima facie case that the employee who had authority to and did approve the plans also had authority to disregard applicable standards.” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 343 [195 Cal.Rptr.3d 773, 362 P.3d 417].)