California Public Entities that Successfully Invoke Design Immunity Still Can Be Liable
By: Charles Bolcom
A Court of Appeals in the Second District has found that design immunity may shield a public entity from liability for an alleged dangerous condition but that the public entity still can be liable for failure to warn of that dangerous condition.
In Tansavatdi v. City of Rancho Palos Verdes, 60 Cal.App.5th 423 (Cal. Ct. App. 2021), plaintiff sued the city after her son riding his bike was killed in a collision with a truck that was in the process of turning at an intersection. Plaintiff alleged a dangerous condition of public property under California Government Code Section 835. The trial court granted the city's motion for summary judgment, concluding that the city had design immunity as a matter of law under Section 830.6 of the Government Code for the absence of a bicycle lane.
However, following the California Supreme Court's binding precedent in Cameron v. State of California, 7 Cal.3d 318, 327 (1972), the Court of Appeals reversed, holding that even when design immunity covers a dangerous condition, it does not categorically preclude liability for failure to warn about that dangerous condition. Thus, in this case, the city's entitlement to design immunity for its failure to include a bicycle lane at the site of the accident did not, as a matter of law, preclude liability under a theory of failure to warn the public of potential danger. The Court of Appeals remanded for the trial court to consider the failure to warn theory.
This decision undercuts the principle that, once immunity applies, a public entity cannot be liable. The decision also conceivably requires a public entity to warn about its dangerous conditions, both known and unknown, which involves a seemingly impossible burden.
Moreover, a failure to warn cause of action typically applies to a defendant that has manufactured, distributed, or sold a product and failed to adequately warn consumers of the potential risks of using the product. Tansavatdi now allows plaintiffs to argue that the failure to warn applies in the context of dangerous condition of public property, even though a consumer product did not cause the harm. Plaintiffs likely will now include a failure to warn claim in their complaints against public entities when a dangerous condition of public property is involved even though the case does not involve products liability.