California Civil Jury Instructions (CACI) (2017)

1123. Loss of Design Immunity (Cornette)

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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
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].)
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.)
• “In many cases, the evidence of discretionary authority to approve a design
decision is clear, or even undisputed. For example, ‘[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. [Citation.]’ 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.)
• “[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
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.
• “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].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 229, 280 et seq.
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