CACI No. 1123. Affirmative Defense - Design Immunity (Gov. Code, § 830.6)

Judicial Council of California Civil Jury Instructions (2023 edition)

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1123.Affirmative Defense - Design Immunity (Gov. Code, § 830.6)

[Name of defendant] claims that it is not responsible for harm to [name of

plaintiff] caused by the plan or design of the [insert type of property, e.g.,

highway]. In order to prove this claim, [name of defendant] must prove

both of the following:

1. That the plan or design was [prepared in conformity with

standards previously] approved before

[construction/improvement] by the [[legislative body of the public

entity, e.g., city council]/[other body or employee, e.g., city civil

engineer]] exercising [its/specifically delegated] discretionary

authority to approve the plan or design; and

2. That the plan or design of the [e.g., highway] was a substantial

factor in causing harm to [name of plaintiff].

New December 2014; Revised June 2016

Directions for Use

Give this instruction to present the affirmative defense of design immunity to a

claim for liability caused by a dangerous condition on public property. (Gov. Code,

§ 830.6; see Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369 [169

Cal.Rptr.3d 880] [design immunity is an affirmative defense that the public entity

must plead and prove].)

A public entity claiming design immunity must establish three elements: (1) a causal

relationship between the plan or design and the accident; (2) discretionary approval

of the plan or design before construction; and (3) substantial evidence supporting

the reasonableness of the plan or design. (Cornette v. Dept. of Transportation (2001)

26 Cal.4th 63, 66 [109 Cal.Rptr.2d 1, 26 P.3d 332].) The first two elements,

causation and discretionary approval, are issues of fact for the jury to decide. (Id. at

pp. 74-75; see also Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550

[100 Cal.Rptr.3d 494] [elements may be resolved as issues of law only if facts are

undisputed].) The third element, substantial evidence of reasonableness, must be

tried by the court, not the jury. (Cornette,supra, 26 Cal.4th at pp. 66−67; see Gov.

Code, § 830.6.)

In element 1, select “its” if it is the governing body that has exercised its

discretionary authority. Select “specifically delegated” if it is some other body or

employee.

The discretionary authority to approve the plan or design must be “vested,” which

means that the body or employee actually had the express authority to approve it.

This authority cannot be implied from the circumstances. (Castro v. City of

Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457 [192 Cal.Rptr.3d 376].)

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Sources and Authority

• Design Immunity. Government Code section 830.6.

• “The purpose of 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.]’ ‘ “[T]o 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.” ’ ” (Martinez,

supra, 225 Cal.App.4th at p. 369, internal citations omitted.)

• “Section 830.6 makes it quite clear that ‘the 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 design or the

standards therefor or (b) a reasonable legislative body or other body or employee

could have approved the plan or design or the standards therefor.’ ” (Cornette,

supra, 26 Cal.4th at p. 66.)

• “To prove [the discretionary approval element of design immunity], the entity

must show that the design was approved ‘in advance’ of the construction ‘by the

legislative body of the public entity or by some other body or employee

exercising discretionary authority to give such approval or where such plan or

design is prepared in conformity with standards previously so approved

. . . .’ ‘Approval . . . is a vital precondition of the design immunity.’ ”

(Martinez,supra, 225 Cal.App.4th at p. 369, internal citations omitted.)

• “A detailed plan, drawn up by a competent engineering firm, and approved by a

city engineer in the exercise of his or her discretionary authority, is persuasive

evidence of the element of prior approval.” (Rodriguez v. Department of

Transportation (2018) 21 Cal.App.5th 947, 955 [230 Cal.Rptr.3d 852].)

• “In many cases, the evidence of discretionary authority to approve a design

decision is clear, or even undisputed. . . . When the discretionary approval issue

is disputed, however, as it was here, we must determine whether the person who

approved the construction had the discretionary authority to do so.” (Martinez,

supra, 225 Cal.App.4th at pp. 370−371, internal citations omitted.)

• “Discretionary approval need not be established with testimony of the individual

who approved the project. A former employee may testify to the entity’s

‘discretionary approval custom and practice’ even if the employee was not

involved in the approval process at the time the challenged plan was approved.”

(Gonzales v. City of Atwater (2016) 6 Cal.App.5th 929, 947 [212 Cal.Rptr.3d

137], internal citation omitted.)

• “[T]he focus of discretional authority to approve a plan or design is fixed by law

and will not be implied. ‘[T]he public entity claiming design immunity must

prove that the person or entity who made the decision is vested with the

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authority to do so. Recognizing “implied” discretionary approval would vitiate

this requirement and provide public entities with a blanket release from liability

that finds no support in section 830.6.’ ” (Castro, supra, 239 Cal.App.4th at p.

1457.)

• “We conclude that the discretionary approval element of section 830.6 does not

implicate the question whether the employee who approved the plans was aware

of design standards or was aware that the design deviated from those standards.

The issue of the adequacy of the deliberative process with respect to design

standards may be considered in connection with the court’s determination

whether there is substantial evidence that the design was reasonable. In addition,

the discretionary approval element does not require the entity to demonstrate in

its prima facie case that the employee who had authority to and did approve the

plans also had authority to disregard applicable standards.” (Hampton v. County

of San Diego (2015) 62 Cal.4th 340, 343 [195 Cal.Rptr.3d 773, 362 P.3d 417].)

• “[A] case involving design immunity does not function as a typical summary

judgment case would. The court’s role in evaluating the third element of the

design immunity is not to provide a de novo interpretation of the design, but

instead to decide whether there is ‘any substantial evidence’ supporting its

reasonableness.” (Menges v. Dept. of Transportation (2020) 59 Cal.App.5th 13,

21 [273 Cal.Rptr.3d 231].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 234 et seq., 273.

Haning et al., California Practice Guide: Personal Injury, Ch. 2(III)-D, Liability For

“Dangerous Conditions” Of Public Property, ¶ 2:2855 et seq. (The Rutter Group)

5 Levy et al., California Torts, Ch. 61, Particular Liabilities and Immunities of

Public Entities and Public Employees, § 61.03 (Matthew Bender)

40 California Forms of Pleading and Practice, Ch. 464, Public Entities and Offıcers:

California Government Claims Act, § 464.85[2] (Matthew Bender)

19A California Points and Authorities, Ch. 196, Public Entities, § 196.12 (Matthew

Bender)

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Page last reviewed May 2023