Public Entities' Discretion in Approving Construction Designs Strengthened - Recent Decision Rejects Adding Requirements for Design Immunity Protection


The California Court of Appeal recently held that one of the three elements needed to establish the design immunity defense -- discretionary approval -- may be established either by evidence of appropriate discretionary approval or by evidence that the plan or design conformed to previously approved standards. The court decided not to impose non-statutory requirements for public entities to assert the design immunity defense granted by the Government Claims Act. The court rejected imposing an additional requirement, adopted by some older decisions, which mandated that, if the public entity had previously approved standards, it must prove that the official approving a plan or design that varied from those standards had expressly considered those standards and the consequences of not following them.

In Hampton v. County of San Diego, plaintiffs injured in an automobile accident sued the county, alleging a dangerous condition of public property was caused by inadequate sightlines at an intersection. Several years before, the county had made improvements to the intersection, with plans approved by civil engineers both before and after construction. Plaintiffs claimed that the sightlines varied from county standards and, because the construction plans did not mention those standards, the county had not made an informed exercise of discretion in approving plans that varied from those standards. Thus, plaintiffs argued, the county could not establish discretionary approval.

The court conceded that plaintiffs’ argument was supported by two older Court of Appeal cases, Levin v. State of California (1983) and Hernandez v. Department of Transportation (2003). The court, however, disagreed with these cases’ view that the discretionary approval element of a design immunity defense required the exercise of informed discretion and that evidence of a public entity’s failure to adhere to standards connected with a design plan constituted evidence of a lack of discretionary approval of the design. The text of the design immunity statute did not support such additional requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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