WEINSTEIN v. DEPARTMENT OF TRANSPORTATION

Filed 4/3/06; pub. order 5/3/06 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

GARY WEINSTEIN, et al., H028124

Plaintiffs and Appellants, (Santa Clara County

Superior Court

v. No. 1-02-CV-809359)

CALIFORNIA DEPARTMENT OF

TRANSPORTATION,

Defendant and Respondent.

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Plaintiffs Gary Weinstein and Ryan Mitchell were injured in a cross-median collision on Highway 101 and sought to hold defendant California Department of Transportation liable for their injuries on the ground that the accident location was in a dangerous condition. Defendant obtained summary judgment based on design immunity, and plaintiffs appeal. We affirm the judgment.

I. Background

The operative complaint is plaintiffs' second amended complaint. Plaintiffs alleged that, on December 6, 2001, a northbound vehicle crossed over the Highway 101 median .2 miles north of Burnett Avenue in the City of Morgan Hill and collided with a southbound vehicle. The driver of the northbound vehicle was killed. Plaintiffs were injured.

Plaintiffs alleged that defendant was liable under Government Code section 835, subdivision (b) for their injuries because the accident location was dangerous. They asserted that a â€