Laabs v. San Bernadino County

Filed 5/11/07 Laabs v. San Bernadino County CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.) Affirmed.

Richard Harris Law Firm, Richard Harris; Lascher & Lascher, Wendy Lascher and Aris Karakalos for Plaintiff and Appellant.

Horvitz & Levy, Peter Abrahams, Bradley S. Pauley, Dean A. Bochner; Lynberg & Watkins, Dana Alden Fox and Barbara S. Huff for Defendant and Respondent.

I. INTRODUCTION

Plaintiff Amanda Laabs was injured in an automobile collision. She sued various parties, including the County of San Bernardino (the County). As against the County, she alleged that her injuries were caused by a dangerous condition of public property. The County moved for summary judgment, which the trial court granted. We affirm.

II. STATEMENT OF FACTS

The following facts are, in essence, uncontroverted and taken from the evidence submitted by the parties in support of, and in opposition to, the motion for summary judgment.

Ridgecrest Road is a four-lane north/south roadway with a posted speed limit of 55 miles per hour. It intersects with Pebble Beach Drive, a two-lane east/west roadway. Westbound Pebble Beach has a stop sign, a painted limit line, and stop painted on the roadway.

Pebble Beach, with no center line delineation, leads from a portion of the Spring Valley Lake residential area. Ridgecrest runs along the west side of the Spring Valley Lake development. There is a block wall along the east side of Ridgecrest, just to the south of Pebble Beach. The block wall is about 10 feet east of the curb and runs parallel with Ridgecrest; at its north end, it turns easterly to run along a small portion of the south side of Pebble Beach.

The subject automobile accident occurred when a northbound vehicle on Ridgecrest collided with a westbound left-turning vehicle from Pebble Beach. The northbound vehicle, a Porsche Carrera, was driven by James Dimeo. The left-turning vehicle, a Mitsubishi, was driven by Dorothy Specter. The impact occurred within the northbound lanes, or county area of Ridgecrest.^[1]

The original design plans for Ridgecrest were approved by the County in September 1969. The plans showed Ridgecrest and the intersection of Ridgecrest and Pebble Beach. The approved plans depicted Ridgecrest as a two-lane roadway with one southbound lane and one northbound lane. The plans provided for future improvements by way of the addition of two lanes on the west side of the roadway.

Ridgecrest became part of the County-maintained road system in January 1980. Pebble Beach had become a County-maintained road seven years earlier. In March 1993, the County placed an intersection warning sign along the east curbline of Ridgecrest, notifying northbound motorists of Ridgecrests intersection with Pebble Beach. The sign was posted 540 feet south of the intersection.

In 1996, Ridgecrest was widened, wherein the existing two lanes became the two northbound lanes of Ridgecrest and the two newly constructed lanes became the southbound lanes. At its intersection with Ridgecrest, Pebble Beach has a six to eight percent uphill grade in a westerly direction and a five percent downgrade to the north. The limit line on Pebble Beach is five feet east of the eastern curbline of Ridgecrest. South of its intersection with Pebble Beach, Ridgecrest is an undulating roadway with a 280-foot vertical curve just to the south of the intersection.

The driver of the northbound Porsche, James Dimeo, was accompanied by Jason Moffett and plaintiff, Amanda Laabs. Just before the accident, they planned to go to In-N-Out Burgers. Initially, Dimeo proceeded southbound on Ridgecrest towards Bear Valley Highway. His vehicle at times reached a speed of 100 miles per hour. At some point near a church parking lot, Dimeo made a U-turn and began proceeding northbound on Ridgecrest. His vehicle reached a speed of approximately 110 miles per hour.

As he was proceeding northbound, he moved from the No. 1 northbound lane to the No. 2 northbound lane for purposes of passing a vehicle. The driver of the other northbound vehicle indicated that the Porsche was going anywhere from 100 to 120 miles per hour.^[2] Dimeo testified that as his vehicle moved into the vertical curves of Ridgecrest Road, he took his foot off the accelerator. Dimeo indicated that the Mitsubishi pulled right out in front of him. The Mitsubishi was coming out from Pebble Beach. He does not know how much time passed between the time he first saw the Mitsubishi and the time of impact. He was in the right-hand lane just before the impact. He was able to move his foot to the brake and steer to the left into the left-hand lane before impact. He does not know the positioning of the vehicles at the time of impact. Keith Friedman, an expert, opined that based on his preliminary analysis, the Porsche was going 74 miles per hour at impact. After this initial impact, the Porsche moved northwesterly, striking the western curb of Ridgecrest and a light pole, adjacent to the southbound lanes. Plaintiff received significant injuries.

Dorothy Specter, the driver of the Mitsubishi, indicated that she stopped at the stop sign, looked both ways and saw nothing coming. She eased forward and again looked both ways and saw nothing coming. She pulled into the intersection to make a left-hand turn to go south on Ridgecrest. Suddenly, a vehicle came in front of her and struck the front of her vehicle. She never saw the other car coming. In a statement to the investigating officer, Specter gave no indication that her line of sight was obstructed.

Dimeo said that he had driven this part of Ridgecrest every day, and hundreds of times. He normally drives an elevated truck and never had difficulty seeing cars at the Pebble Beach intersection. In the lower Porsche, however, he said he could not see the westbound car at the intersection.

Other evidence submitted by way of lay witnesses and expert declarations will be discussed within the context of our analysis of whether a dangerous condition existed and the applicability of the design immunity.

A. Standard of Review

A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiffs cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted . . . . [Citations.] The court must consider all evidence set forth in the parties papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.] (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.) Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used. [Citation.] (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)

On appeal, our review is de novo, and we independently review the record before the trial court. (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652.) The trial courts stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

B. General Overview

A governmental entity is liable for an injury caused by its property if at the time of the injury: (1) the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual and/or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition. (Gov. Code,  835.)

For the property to be considered in a dangerous condition, it must create a substantial risk of injury (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Gov. Code,  830, subd. (a).)

A design immunity defense is provided under Government Code section 830.6. Under this statute, a public entity is not liable for a dangerous condition of its property if the public entity demonstrates that the injury was caused by property constructed in accordance with an approved plan or design. For the design immunity to apply, there must exist: (1) a causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; and (3) substantial evidence supporting the reasonableness of the plan. (Coronette v. Department of Transportation (2001) 26 Cal.4th 63, 66 (Coronette).)

Lastly, the governmental entity can lose the design immunity if plaintiff can show changed conditions between the time of the improvement and the accident. (Coronette, supra, 26 Cal.4th at p. 66.)

As discussed, we find that a triable issue of material fact is present as to whether the roadway was in a dangerous condition at the time of the accident. We further find that the design immunity does apply and that plaintiff failed to meet her burden as it relates to changed conditions. We therefore affirm.

C. Triable Issues of Material Fact Exist as to Whether Ridgecrest, at Its Intersection With PebbleBeach, Constituted a Dangerous Condition of Public Property at the Time of the Accident

Here, the parties do not dispute that the area of roadway where the accident occurred was owned, maintained, and controlled by the County.

The basic thrust of the Countys position, both at the trial court and on appeal is that a public entity is only required to provide a highway that is safe for reasonably foreseeable careful use. They argue that because of his speed, Dimeo was not using the property with due care or in a reasonably foreseeable manner. As the County argues, [i]t is undisputed that Dimeo knew the 55 mile-per-hour speed limit on northbound Ridge Crest, but nevertheless drove the Porsche between 100 and 120 miles per hour ‑ double the posted speed limit ‑ just moments before the collision. . . . Brian Benson, the [California Highway Patrol] officer who investigated the accident, concluded that Dimeo was under the influence of marijuana at the time and that his drug impairment and excessive speed caused the accident. . . . Dimeo operated his vehicle in such a reckless and irresponsible manner that the circumstances of the accident raise no triable factual issue that the roads were in a dangerous condition.

As the County sets forth, the record clearly demonstrates that Dimeo was not exercising due care at the time of the accident. This conclusion, however, is not the focus of the courts initial inquiry in evaluating the dangerousness of the property. Government Code section 830, subdivision (a), defines a dangerous condition of public property as one creating a substantial risk of injury when it is used with due care in a reasonably foreseeable manner. The qualification that the property is dangerous only when used with due care does not require the plaintiff to prove due care on the part of the third party (here, the . . . driver) involved in the plaintiffs injury. Rather, the statute means that the condition is dangerous if it creates a substantial risk of harm when used with due care by the public generally, as distinguished from the particular person charged as concurrent tortfeasor. (Murrell v. State of California ex rel.Dept. of Pub. Wks. (1975) 47 Cal.App.3d 264, 267, fn. omitted.) [I]f the condition of the property was such that it created a substantial risk of injury to a person using the property with due care, an injured plaintiff is not required to prove that the driver of the third party vehicle . . . was exercising due care at the time of the injury. That is, the third partys negligent use does not negate the existence of a dangerous condition. . . . What we must determine therefore is whether in the abstract the factual situation in the case at bench could be found by the finder of fact to have created a dangerous condition without regard to the specific conduct of [the third party driver] or the plaintiff on this particular occasion. (Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 121.) With this standard, we view the evidence.

The County submitted four expert declarations in support of its motion. From their declarations, the northbound lanes of Ridgecrest, just south of its intersection with Pebble Beach, had a posted speed limit of 55 miles per hour. Speed surveys done in 1998 and 2001 recommended a speed limit of 55 miles per hour. At the time of the accident, the sight distance for westbound motorists stopped at the limit line of Pebble Beach was 588 feet. The limit line setback was in compliance with the State of California Traffic Manual. The recommended sight distance under the Highway Design Manual of the State of California for a 55 miles per hour speed zone is 500 feet. An intersection warning sign was located approximately 540 feet south of the intersection notifying northbound motorists of the upcoming intersection. A vehicle traveling 55 to 60 miles per hour would take approximately 6 to 6.6 seconds to reach the intersection. This amount of time is more than sufficient for a westbound vehicle to reasonably clear the intersection. For northbound traffic, the sight distance is fine for purposes of bringing a vehicle traveling at speeds of 55 or 60 miles per hour to a controlled stop. The intersection was not in a dangerous condition at the time of the accident. The accident site was safe for those using the property with due care in a reasonably foreseeable manner.

Through this evidence, the County met its initial burden of production that the intersection and the area of roadway to the south did not create a substantial risk of injury to members of the motoring public using the property with due care in a reasonably foreseeable manner. If unrebutted, it supports the granting of summary judgment.

In response, plaintiff submitted three expert declarations. As is relevant to the issue of dangerousness, the Dimeo vehicle was traveling approximately 74 miles per hour at the time of impact. There is a 280-foot vertical curve immediately south of Pebble Beach. Pebble Beach, at the intersection with Ridgecrest, is on a five percent downgrade to the north, thus lowering the height of the eye of the westbound motorist, as well as directly affecting corner sight distance at the intersection. Robert Crommelin declared, From pictures of the area, it is obvious that there is inadequate sight distance to that location . . . . Corner sight distance guidelines used by Caltrans . . . said that a 3.5 foot driver eye height on the cross street located 15 feet back of the traveled way (in this case the curb line) should have 7.5 seconds of view at the operating speed of the roadway. With a 55 MPH speed limit, 7.5 seconds would mean a view was needed of 605 feet. Using the elevations on the as-built construction plans for a 3.5 foot eye height to a 4.25 foot object would yield only 510 feet. Thus this criteria was not met. It would have been unreasonable at the time of design as well as currently. Current Caltrans Guidelines continued to use the 7.5 seconds of sight distance as a criteria . . . . (Underlining omitted.) A speed survey done by Howard Anderson of the northbound lanes over a six-hour period, demonstrated an average speed of 56 miles per hour with the 85th percentile being 62 miles per hour. Twelve crashes with similar patterns occurred at the intersection in the 10 years before the subject accident. At the time of the accident, the intersection of Ridgecrest and Pebble Beach constituted a dangerous condition.

Plaintiffs evidence demonstrates triable issues of material fact relative to the adequacy of the stopping sight distance at the intersection for individuals using due care. It is clear from the evidence and photographs that the 280-foot vertical curve to the south of the intersection impedes the line of sight of motorists stopped at and approaching the intersection. According to the Countys experts, there was 588 feet of stopping sight distance. Plaintiffs experts opined that based on the northerly downslope of the westbound lane of Pebble Beach at the intersection, there was only 510 feet of stopping sight distance, and 605 feet is called for by the design manual criteria. Additionally, according to plaintiffs experts, with a 55 miles per hour speed limit, each driver should have 7.5 seconds to view cross-traffic; the County does not take direct issue with this, but simply indicates that a vehicle traveling 55 to 60 miles per hour would take 6 to 6.6 seconds to reach the intersection, which should be a sufficient amount of time for a westbound vehicle to reasonably clear the intersection. A speed survey performed by expert Anderson demonstrated that the average speed of vehicles in the area of the accident was 56 miles per hour with the 85th percentile being 62 miles per hour.

Plaintiffs evidence places directly into issue critical factual disputes as to the sight distance actually present at the intersection, the prevailing speeds of northbound motorists approaching the intersection, and whether, given these factors, there is adequate stopping sight distance for motorists using due care as they proceed northbound on Ridgecrest and/or are turning left across two lanes of northbound travel. A triable issue of fact exists as to whether the property created a foreseeable risk of injury to members of the motoring public using due care.

Equally, it cannot be said that no triable issue of fact exists as to whether the property was being used in a manner in which it is reasonably foreseeable that it would be used. (Fuller v. State of California (1975) 51 Cal.App.3d 926, 939.) [W]hat is referred to, we think, is a risk of injury to a plaintiff who is using such property, in a manner in which it is reasonably foreseeable that it will be used by that plaintiff. (Branch v. State of California ex rel. Dept. of Transportation (1984) 159 Cal.App.3d 340, 344.) To state the obvious, it is reasonably foreseeable that the roadway will be used for driving a car and that that vehicle may contain passengers. (See Goss v. State of California (1978) 82 Cal.App.3d 426, 431.) To the extent we factor in Dimeos speed as to whether the property was being used in a reasonably foreseeable manner, we still cannot say there is no triable issue of material fact. Evidence is present that the stopping sight distance may well be inadequate when dealing with northbound vehicles that are traveling slightly in excess of the posted speed limit. As previously referenced, the speed of vehicles at the 85th percentile is 62 miles per hour. While the County points to evidence that Dimeo was traveling at times at speeds in excess of 100 miles per hour prior to the accident, there is no evidence that he was traveling at such speeds as he approached and crested the vertical curve just south of the intersection. The record contains only the opinion of Keith Friedman, who states that Dimeos approximate speed at the time of impact was 74 miles per hour.^[3] We do not believe that driving a vehicle at

74 miles per hour in a 55 miles per hour speed zone can be said, as a matter of law, to be using the roadway in a manner that is not reasonably foreseeable. We therefore find that on this evidence, a reasonable person could conclude that the condition of property created a foreseeable risk of injury when the property was being used with due care in a reasonably foreseeable manner.

Lastly, a triable issue exists as to whether the County was on notice of the condition and its dangerousness. Government Code section 835.2 . . . recognizes that in determining whether a public entity has constructive notice of a dangerous condition, the jury may consider whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate . . . to inform the public entity whether the property was safe for [its intended use] and [w]hether the public entity maintained and operated such an inspection system with due care and did not discover the condition. (Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 303.) Knowledge or notice of a dangerous condition may be shown by evidence of similar accidents, not too remote in time, that occurred under similar circumstances. Specifically, the Statewide Integrated Traffic Records Systems reports may impart such notice. (See Genrich v. State of California (1988) 202 Cal.App.3d 221, 227-228.)

The present accident occurred in October 2002. Prior to the accident, the County performed three traffic studies to determine whether the intersection qualified for a four-way stop. The studies were performed in February 1998, August 2001, and August 2002. David Royer reviewed the Statewide Integrated Traffic Records Systems reports relative to the subject intersection. In the five years before the present accident there were nine similar accidents. One collision occurred in 1996, three in 1998, one in 1999, two in 2000, one in 2001, and one in 2002. Robert Crommelin indicated that in the 10 years before the accident there were 12 similar accidents. This quantity of similar accidents, especially in the six years immediately before the present accident, is sufficient evidence to raise a triable issue of fact as to whether the County was on constructive notice of the sight distance limitation and of its dangerousness.

D. The County Established the Applicability of the Design Immunity

Under Government Code section 830.6 a public entity may avoid liability for a dangerous condition of property if it can establish that the injury was caused by an approved plan or design. To establish the immunity the entity must establish: (1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design. [Citations.] (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939.)

The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.] To permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested. [Citation.] (Coronette, supra, 26 Cal.4th at p. 69.)

Here, we are dealing with two sets of plans. In 1969, the County approved plans prepared by McIntire & Quiros Inc. The plans were approved by Assistant Road Commissioner Harry Ely. As relevant, the plans provided for Ridgecrest to be a paved roadway 32 feet in width. The plans provided for a north/south block wall 12 feet east of the eastern curb of Ridgecrest. The plans also depicted the vertical curvature of Ridgecrest immediately south of its intersection with Pebble Beach. Lastly, the plans provided for the expansion of Ridgecrest to the west, with an ultimate roadway surface of 88 feet. The vertical curvature for the future expansion of Ridgecrest south of its intersection with Pebble Beach was also shown on these plans.

In 1996, the City of Victorville prepared plans relative to the widening of Ridgecrest and the continuation of Pebble Beach west of Ridgecrest. (The continuation street is named High Crest.) The plans were approved by Jon Roberts, the city engineer for the City of Victorville. Eight days later, they were approved by an engineer for the County. The plans do not depict the block wall to the east of Ridgecrest. They do, however, show the vertical curvature of Ridgecrest south of its intersection with Pebble Beach for not only the portion of roadway to be added but also for the already existing lanes.

On appeal, plaintiffs sole argument relates to the second prong of the design immunity ‑‑ that there was no discretionary approval of the plans prior to construction. In that our review is de novo, we will briefly discuss the remaining two prongs.

As to the causal relationship between the plans and the accident, there is a clear nexus between the vertical curvature of Ridgecrest south of its intersection with Pebble Beach as shown in the plans, and the adequacy or inadequacy of stopping sight distance. Thus the first prong is met. There is nothing in the evidence to show that the block wall, present on the 1969 plans but not shown on the 1996 plans, had any causal relationship to the accident.^[4]

As to whether there is substantial evidence supporting the reasonableness of the design, a conflict in opinions about defect will not create a triable issue of fact. [Citation.] The state had only to present substantial evidence of the reasonableness of the approved design. [Citation.] [] . . . The fact of approval by competent professionals can, in and of itself, establish the reasonableness element. [Citation.] (Higgins v. State of California (1997) 54 Cal.App.4th 177, 186-187, disapproved on another point in Coronette, supra, 26 Cal.4th at pp. 73-74.) [T]he . . . element of design immunity, the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design, [is] a matter for the court, not the jury. [T]he trial or appellate court is to determine whether there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan . . . or . . . (b) a reasonable . . . employee could have approved the plan or design or the standards therefor. ([Gov. Code,]  830.6.) (Coronette, supra, at p. 72.)

Here, the County submitted the declaration of Patrick Mead. Mead declared that he is the director of the Public Works Department for the County. Both Pebble Beach and Ridgecrest were designed and built in accordance with County standards. David Royer, a civil and traffic engineer, declared that the original design conformed to all standards. He further declared that the intersection was constructed in substantial compliance with the design. On behalf of the plaintiff, Howard Anderson declared that the approved design of Ridgecrest and Pebble Beach was unreasonable. His opinion appears to be primarily based on the lack of sight distance caused by the vertical curve in conjunction with the northerly downgrade of Pebble Beach just east of its intersection with Ridgecrest. Robert Crommelin declared: The intersection was created . . . with plans approved . . . on September 8, 1968. That tract included the easterly half of Ridgecrest Road and Pebble Beach Drive. The plan included a block wall on the west side of Ridgecrest south of Pebble Beach located 12 feet east of the curb line of Ridgecrest. The design of the block wall created a sight obstruction in the southeast corner of the intersection which did not follow the then-prevailing standards of design and safety as evidenced by Figure 7-406.1 dated August 10, 1965 taken from the Caltrans Design Manual. That figure shows that the design criteria included the rear of a vehicle 30 feet from the east curb line of the major street to be seen from a distance back on the major street equal to stopping sight distance for the speed of the roadway. Ridgecrest has a 55 MPH speed limit. I plotted the test criteria and found that the block wall on the east side limited views of northbound drivers to 108 feet stopping sight distance to a point 30 feet east of the curb line of Ridgecrest. Stopping sight distance for 55 MPH was 45 feet.

While both of plaintiffs experts take issue with the reasonableness of the design, the record contains substantial credible evidence that the intersection and the approach from the south was designed in substantial accordance to the then-prevailing standards and was reasonable. This is sufficient to meet the third prong of the design immunity. While Crommelins declaration may raise an issue as to whether the 1969 plans complied with certain design manual guidelines, as earlier discussed, the record does not disclose a causal relationship between the location of the block wall and the accident in question.

As to plaintiffs argument on the second prong, that there was no discretionary approval of the plans prior to construction, we disagree. Both the 1969 plans, as well as the 1996 plans, depict the vertical curve on Ridgecrest just south of the intersection with Pebble Beach. The 1969 plans contemplate Ridgecrest becoming a four-lane roadway with two northbound lanes. The 1996 plans actually provide for all of the lanes. Whether the engineers in approving the 1996 plans took into consideration the added distance and involved time for a westbound motorist to clear the northbound lanes, as opposed to clearing only one northbound lane as represented by the 1969 plans, is not for us to speculate in a record void of any evidence relative thereto. (See Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734, disapproved on another point in Coronette, supra, 26 Cal.4th at pp. 73-74.)

We therefore agree with the trial courts finding of the applicability of the design immunity.

E. There is No Triable Issue of Fact That the County Lost the Design Immunity as a Result of Changed Circumstances

[A]fter a defendant has shown the applicability of the design immunity to the plaintiffs claims, the plaintiff bears the burden of establishing each of the three elements of the loss of the immunity. [Citation.] . . . Consistent with their burden at trial of establishing the elements of [defendants] loss of the design immunity, plaintiffs bore the burden of production in opposition to the motion for summary judgment to make a prima facie showing of the existence of a triable issue of material fact [citation] with respect to the loss of the design immunity. Since it is necessary to establish all three elements of the loss of the design immunity [citation], plaintiffs needed to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome [defendants] motion for summary judgment. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807.) The elements which must be addressed by plaintiff are: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus 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. (Coronette, supra, 26 Cal.4th at p. 66.)

In addressing the first element that the plan or design has become dangerous because of a change in physical conditions, the court in Weinstein v. Department of Transportation (2006) 139 Cal.App.4th 52 indicated, in addressing a cross-median accident and the absence of a median barrier in a Caltrans plan, that [p]laintiffs did not meet this burden. Their showing relied on the increase in traffic at the accident location and a corresponding increase in accidents. However, plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway . . . . Plaintiffs produced no evidence that increased traffic volume alone mandated a median barrier under the applicable state standards, and they otherwise failed to support their claim of loss of design immunity with evidence that changed conditions had caused the accident location to become dangerous. (Id. at pp. 60-61, italics added.) Here, as in Weinstein, plaintiff has failed to meet the element of changed conditions.

The record contains no traffic counts and little traffic accident history. There is absolutely nothing upon which a court could find a triable issue. The original design of Ridgecrest and Pebble Beach occurred in 1969. The design was subsequently modified in 1996 to widen the intersection. The plaintiff provides no statistical data on the increase of traffic flow at the intersection between 1969 and 1996, and 1996 to the date of the accident. No speed surveys over the relevant time period are provided and there is no attempted correlation between increased traffic flow, increased speeds, and increased accidents. There is nothing in the record to support even an inference that the functioning of the intersection was any different in 1969, 1996, or 2002. Plaintiff has simply failed to address, from an evidentiary point of view, the issue of changed conditions. By contrast, the County introduced evidence of three traffic studies, all of which indicated that a four-way stop was not warranted.

Lastly, plaintiff failed to proffer sufficient evidence that the County had time to obtain funds to carry out remedial work to bring the property into conformity with a reasonable design or that they did not reasonably attempt to provide adequate warnings. Neither of plaintiffs experts addressed the issue of providing warning signs or speed signs, as designated in the traffic manual on Ridgecrest, south of its intersection with Pebble Beach. The only evidence of suggested remedial work provided by plaintiff was Crommelins declaration that a signal light could have been installed or the elevation of Ridgecrest could have been reduced by about one (1) foot. There is no evidence that the County had a reasonable time to obtain the funds and carry out the suggested remedial work.

III. DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] The southbound lanes are within the City of Victorville.

^[2] While not specific in terms of location, Jason Moffett, a passenger in Dimeos car, testified in his deposition that at one point he did see the speedometer of the Porsche over 120 miles per hour.

^[3] There is no evidence in the record that Dimeos brakes actually engaged before the impact. The record contains no evidence of impending skidmarks or skidmarks prior to the point of impact. There is no testimony provided by either party that in the critical five seconds before impact Dimeo was proceeding at a speed in excess of 74 miles per hour.

^[4] At oral argument, plaintiff directed the courts attention to a second declaration of Robert Crommelin. In Crommelins first declaration, dated January 31, 2005, he makes no mention of the block wall relative to its causal relationship to the accident. In a second declaration, dated February 3, 2005, Crommelin declares, It is my expert opinion that this accident . . . [was] the result of the negligent design of Ridgecrest Road, Pebble Beach Drive, and the intersection of such roadways as such design failed to consider the height and effect of the block wall . . . . To support this conclusion Crommelin does not refer to any facts pertaining to the accident in question. We believe the facts belie this conclusion. As pointed out by plaintiffs counsel, the stop limit line was two feet east of the eastern curbline of Ridgecrest. Dorothy Specter initially stopped at the intersection. Stopped at the limit line, her drivers position would be no more than nine feet east of the eastern curbline of Ridgecrest. The block wall was 10 feet east of the eastern curbline of Ridgecrest. Therefore, the block wall would not create a line of sight obstruction for Specter, and at a minimum, the front half of the Specter vehicle would be visible to Dimeo. Additionally, Specter testified that after her stop, she crept forward before actually pulling into the intersection.