There are two types of road construction accidents: (1) accidents resulting from the actual construction of a road, freeway, bridge, on- or off-ramp, etc., and (2) accidents that arise from a road that was built with no structural flaws but is inherently dangerous because of its design, lack of or improperly timed traffic signals, or lack of traffic signs.
As for the first type of accidents, with the number of drivers and cars on the road increasing every year, there has been an increase in construction work to fix old, worn-out roadway surfaces, overpasses, and the like, and to expand the roadway to accommodate the growing number of drivers by adding lanes to existing freeways, highways, and roadways. A public entity (that is, the state, a county, or a city) has a legal obligation (a “duty”) to design, construct, and maintain its streets and highways in a reasonably safe condition for travel by the public.
Road construction accidents can result from a failure to post necessary warning signs, orange traffic cones, and other signage or systems warning of upcoming construction. The construction work may result in debris being thrown onto the roadway’s surface, where it strikes a car and causes injury or poses a hazard to traffic, such as causing oncoming traffic to swerve suddenly and violently at the last moment to avoid the debris. Accidents involving road construction and repair are particularly high at night, when it is less visible, but most construction is done because of the reduced traffic.
As for the second type of road construction accidents, dangerous conditions on improperly designed roadways lead to a number of serious injuries and deaths each year. The dangerous condition may be a sharp curve that is not properly graded, the lack of a guardrail at a freeway on- or off-ramp, the lack of a median barrier separating opposing lanes of traffic, and the lack of traffic signals or signs warning of a dangerous condition that would not be apparent to a person exercising due care for his or her own safety are just a few examples of conditions that cause or enhance injuries.
A public entity—such as the state, a city, or a county—is legally responsible (“liable”) for injuries caused by a dangerous condition of its property, including its roadways, if it could have anticipated (“reasonably foreseen”) that an accident could happen and a person injured, and the public entity had actual or constructive notice of the condition a sufficient amount of time before the injury to take preventive measures. “Constructive notice” means that the dangerous condition had existed long enough that the public body should have known of it, such as from a previous accident or complaint.
In cases against a governmental body arising from the dangerous condition of a roadway, the public body can escape liability if it meets the criteria of the “design immunity” defense. This requires that the government body prove three elements: (1) that the approved plan or design was a cause of the accident; (2) that an authorized governmental body, officer, or employee gave his or her discretionary approval to the plan or design before construction began; and (3) substantial evidence supports the reasonableness of the plan. The first and second elements of the design immunity defense are questions of fact for the jury to decide; the third element, however, is a question of law for the court to decide.
The defense of design immunity is based upon the concept of separation of powers. In short, the judicial branch through a court or jury should not review the discretionary decisions of legislative or executive bodies. This avoids the danger of interference with the freedom of decision-making by those public officials in whom the function of making decisions has been vested. It also prevents a jury from reweighing the same facts considered by the governmental entity that approved the design. If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies. This is true even if the injured victim presents evidence of a design defect. Even if an expert witness for the injured victim, in hindsight, finds the design defective, that does not mean the design was unreasonably approved. As long as reasonable minds can different concerning whether a design should have been approved, then the governmental entity must be granted immunity.
The “causal relationship” element requires proof that the alleged design defect was responsible for the accident, as opposed to some other independent cause. The “discretionary approval” element simply means approval in advance of construction by the legislative body or officer exercising discretionary authority. Thus, design immunity is not a valid defense where design decisions were never made.
The third element, that substantial evidence supports the reasonableness of the plan, is a question of law for the court to decide. “Substantial evidence” has been defined as “evidence of solid value which reasonably inspires confidence.” Ordinarily, the opinion of a civil engineer as to the reasonableness of a design constitutes “any substantial evidence” sufficient to support a government body’s design immunity defense. The issue is whether there is any reasonable basis on which a reasonable public official could initially have approved the design. As long as there is any substantial basis on which a government official could have decided the design was reasonable, it is irrelevant that a contrary opinion might have been offered. A public entity’s reliance upon the advice of a competent engineer is generally sufficient to establish reasonable approval of the proffered design.
It is not necessary that the property be perfectly designed; only that it be given a design that is reasonable under the circumstances. By using a “reasonableness” standard, the Legislature intended that government officials be given extensive leeway in their decisions concerning public property. A governmental entity is entitled to rely on what is apparently competent advice in making legislative decisions. The fact that on hindsight the advice may prove to have been flawed is not a basis for imposing liability on the governmental entity.
Design immunity is not permanent but may be lost as a result of changed conditions that subsequently make the improvement dangerous. As one court stated, “The Legislature did not intend that public entities should be permitted to shut their eyes to the operation of a plan or design once it has been transferred from blueprint to blacktop.”
To demonstrate the loss of immunity design, the injured person must prove three things: (1) that the plan or design has become dangerous because of a change in physical conditions; (2) the public body had actual or constructive notice of the dangerous condition thereby created; and (3) the public entity had a reasonable time to obtain the 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. All three elements of the loss of immunity design defense are questions of fact for the jury to decide.
A change in design or engineering standards does not constitute a change of condition leading to the loss of design immunity. Technological advances in design and engineering do not constitute a change in physical condition. That the public entity may have inspected and installed improvements at other locations under its control does not constitute a change in physical condition.
As for the issue of separation of powers, the questions involved in the loss of design immunity are not the identical questions considered by the government officers who adopted or approved the plan. Therefore, the Legislature would arguably not have had the same rationale for taking such questions away from a jury. Where experience has revealed the dangerous nature of a pubic improvement under changed physical conditions, the trier of fact (i.e., the jury) will not be simply reweighing the same technical data and policy criteria that went into the original plan or design. Rather, there will then be objective evidence arising from the actual operation of the plan, matters which could not have been contemplated by the governmental agency or employee who approved the design. Thus, no threat of undue interference with discretionary-making exists in this situation.
While increased traffic volume may constitute changed physical conditions, design immunity is not lost simply because the design is operating under such conditions. There must be evidence that the design—under changed physical conditions—has produced a dangerous condition of which the public entity is aware. “Dangerous condition” means a condition of property that creates a substantial 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. For example, an improvement may come to constitute a dangerous condition if increased traffic at the site, coupled with an aberrant accident history, indicates its dangerousness.
When the government 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. The government entity has a reasonable time to finance and take remedial action or to provide adequate warning of the dangerous condition.
Section 830.8 of the California Government Code relieves a public entity from liability for injuries arising from the failure to provide traffic or warning signals, signs, markings, or devices. However, liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care. The government body can be held liable for injuries caused the failure to have a signal, sign, etc., if a signal, sign, marking, or device was necessary to warn motorists and other users of the road of a dangerous condition which endangers the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care for his or her own safety.
If you have been injured or a loved one killed in an accident involving the construction or design of a public road, you should contact an experienced personal injury law firm as soon as possible. Because the entity that owns, operates, or maintains the roadway is a public body, such as the state or a county or city, it is generally necessary to file a claim for damages with the proper governmental agency within six months of the date of the incident. An experienced personal injury attorney will know how and where to file this claim on your behalf.
It is also important to contact an experienced personal injury as soon as possible after the accident, as the attorney may want to send his or her investigator to the scene of the accident to inspect and take pictures of the accident site and any dangerous condition that caused of contributed to the accident before conditions change or the pubic body repairs them. The attorney or his or her investigator will also want to talk to any witnesses to the accident while the facts are still fresh in their minds.
An experienced personal injury attorney can also help with seeing to it that you receive a thorough physical and mental examination and treatment for any injuries you receive in the accident. An experienced personal injury law firm can see to it that you obtain full compensation for your medical expenses, pain and suffering, mental anguish, property damage, lost wages, and all of your other injuries and damages.
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