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May 1, 2014
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Jim Porter: Suing a city, county, state for road defects

If you crash your car or bicycle on a road designed by a city, county or the State, can you sue the city, county or State? If you hit a drainage pipe owned by Ventura county on your motorcycle, can you sue the county?

The answer is — of course you can sue — but will you be successful? That’s low-grade Porter humor. We’ll save the “Two lawyers walk into a bar …” bit for later.

MOTORCYCLE HITS TOP-HAT

Humberto Martinez suffered paraplegic injuries when his motorcycle struck an asphalt berm abutting a raised drain on Box Canyon Road in Ventura County.

The drain, which was located just off of the main road, was a heavy steel cover on three legs elevated 8 to 10 inches off of the ground with a sloped asphalt berm to channel water into the drain.

I’ve seen such a top-hat drain system in the Meadows. The one I’m thinking of was basically “pancaked,” more like a porkpie hat.

Humberto sued Ventura County claiming the top-hat drain system constituted “a dangerous condition on public property” for which the County was liable.

JURY TRIAL

A jury of Martinez’s peers concluded the top-hat drain feature was a dangerous condition of public property, but the trial court ruled the County was not liable because of the so called design immunity available to cities, counties and the great State of California. Martinez appealed.

DANGEROUS CONDITION OF PUBLIC PROPERTY

Government Code Section 835 basically makes a public entity liable for injuries “proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained … and the public entity had notice of the condition a sufficient time before the injury to have taken preventive measures.”

In other words, public agencies are generally liable for their dangerous property just like the rest of us.

But there is a significant, time-honored exception: “Design immunity.”

DESIGN IMMUNITY

The design immunity is a defense to claims of dangerous conditions of public property. The purpose of the design immunity makes sense.

As the Court of Appeal wrote, “The Legislature creating the design immunity defense for an express purpose: to prevent the discretionary design decisions of government officers vested with authority to make these decisions from being second-guessed in litigation.”

You know how those lawyers can be on cross-examination.

For a public entity to avail itself of the design immunity defense it must show that the design of whatever is claimed to be a dangerous condition was approved in advance of its construction by someone with discretionary authority.

In the Ventura County case, the top-hat drain systems had been constructed all over the County over dozens of years.

The County was unable to locate an approved design for the top-hat drain system; they just started getting built. They seemed to work and were in place throughout the County.

RULING

On those facts, Ventura County was not entitled to the design immunity defense, so the trial court’s ruling was overturned, Judgment in favor of the County reversed.

Worse yet, the jury finding that the top-hat design was a dangerous condition of public property is binding. Humberto Martinez should expect a big settlement offer from the County.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.


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Tahoe Daily Tribune Updated May 1, 2014 05:36PM Published May 1, 2014 12:08PM Copyright 2014 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.