What is the exercise of discretionary authority under a statute limiting the State’s liability? Rodriguez v. Department of Transportation. Court of Appeal of California (2018), by Hugh Anderson

Summary: The State of California is not liable for injuries except as provided by statute. The Government Claims Act allows for direct liability for injuries caused by the State maintaining a dangerous condition. However, this exposure to liability is limited: the State is allowed to raise the design immunity defense. This defense gives the State immunity if a dangerous condition exists because of the State’s discretionary approval of a design prior to construction. The reason for the defense is to prevent second-guessing of the public entity’s analysis of risks.

The design immunity defense is in turn limited by a requirement that a judge confirm that there is “substantial evidence” that the approval of the design was “reasonable.”

In 2013 Erik Rodriguez was a passenger in a truck that veered across two lanes of traffic and the paved shoulder of an expressway, struck a guardrail, plunged into a ditch, and caught on fire. He sued the California Department of Transportation, alleging that it had maintained a dangerous condition because it had failed to install rumble strips along the shoulder to warn the motorist that the vehicle had strayed out of the lanes of traffic. The state responded that it had approved the design of the expressway in 1992, and was entitled to the design immunity defense.
The evidence in the case showed that when the expressway was approved, in 1992, rumble strips were not common. The 1992 design engineer indicated that he did not consider using rumble strips.
The trial court issued summary judgment in the State’s favor, and Rodriguez appealed.

Decision: On appeal, Rodriguez argued that because the State did not even consider using rumble strips, it was not logical to conclude that the State had made a discretionary decision to not use rumble strips. The court of appeal disagreed, stating that Rodriguez’s view of what constitutes a design decision was too narrow. The decision to approve a design that contained a “bare paved shoulder” was sufficient to establish the defense.The court explained that all that is required to establish the discretionary approval element is evidence that an employee with discretionary authority approved the plan or design. Once this is established, the wisdom of the decision is reviewed under the reasonableness test, which merely requires a determination that a reasonable public body or employee could have approved the design in question. The existence of alternative design options or preferences are not relevant if the approved design can be justified as reasonable. The actual decision process that was followed is not relevant; perfection in design is not necessary.

Comment: Many other states have similar bodies of law regarding the limited liability of state and local governments for public infrastructure design. The restrictions created by such laws allow governmental entities to make decisions based on rational weighing of risks and costs, and broad public policy objectives, rather than on fear of second-guessing or narrow concerns about claims.

In the California case, the design and approval were conducted by public employees of the Department of Transportation. When such design work is outsourced, should the private engineering firm that performs the design services be entitled to some degree of immunity, based on the same rationale for immunity that applies when the design is conducted in-house?