Construction & Claims: July 2023

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Welcome to Construction & Claims, a periodic digest of the headlines, statutory and regulatory changes and court cases involving construction news, claims, bid protests, contract administration and payment-related disputes. 

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The California Supreme Court Clarifies the Failure to Warn Test for the Government Claims Act's Design Immunity Provision

In Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, the California Supreme Court held that Government Code section 830.6, which protects public entities from claims alleging dangerous conditions on public property if: (i) the design was approved by a public agencies’ legislative body or their designee; and (ii) substantial evidence supports the reasonableness of the approval, does not protect public entities for failing to warn of an allegedly dangerous design of public property.

That case involved a young boy riding his bicycle who was killed by a semi-trailer while waiting at an intersection stoplight in Rancho Palos Verdes, California (City). The intersection had no bike lane. The mother of the bicyclist, Betty Tansavatdi (Tansavatdi), sued the City alleging a cause of action for dangerous conditions on public property. Tansavatdi alleged multiple claims against the City for dangerous condition on public property and a failure to warn cyclists of that dangerous condition, i.e., the absence of the bike lane.

The City brought a motion for summary judgment arguing that it was protected from liability for the dangerous condition claim under the design immunity defense pursuant to Government Code section 830.6. The City also argued that the design immunity defense barred liability for any failure to warn claim. The trial court granted the City’s motion for summary judgment concluding that the City had shown entitlement to design immunity as a matter of law. Transavatdi appealed.

The California Supreme Court affirmed the appellate court’s reversal of summary judgment for the City. In so doing, the Supreme Court held that design immunity does not categorically preclude failure to warn claims that involve a discretionarily approved element of a roadway. Furthermore, while the Government Claims Act's design immunity provision immunizes against liability for having created a dangerous traffic condition, it does not necessarily bar liability for failing to warn of a known dangerous traffic condition.

Accordingly, a public entity may be entitled to design immunity protection, but still be held liable for failure to warn if the plaintiff pursuing such a claim establishes the following elements:

  1. The public entity had actual or constructive notice that its design resulted in a dangerous condition;
  2. The dangerous condition qualified as a concealed trap, i.e., the condition would not have been reasonably apparent to, and would not have been anticipated by, a person exercising due care; and
  3. The absence of a warning sign was a substantial factor in causing the injury.

The Supreme Court has remanded the case back to the trial court for a determination of whether the City is liable under the enunciated test. 

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