Real Property Law
Cal. Real. Prop. Journal VOLUME 42, ISSUE 1, 2024
THE LIMITS OF DESIGN IMMUNITY: LIABILITY OF PUBLIC ENTITIES FOR FAILURE TO WARN OF DANGEROUS CONDITIONS ON PUBLIC PROPERTY
Written by Xenia Tashlitski*
The doctrine of design immunity shields public entities from liability for injuries resulting from dangerous conditions on public property.01 However, on April 27, 2023, the decision of the California Supreme Court in Tansavatdi v. City of Rancho Palos Verdes confirmed the existence of an important caveat: even if a public entity is not liable for the dangerous condition due to design immunity, it can still be liable for failure to warn of the danger.02 The decision expressly disapproves of Weinstein v. Department of Transportation, a 2006 case in which the court of appeal held that design immunity bars a recovery for failure to warn.03 Tansavatdi provides an avenue for plaintiffs who cannot overcome the doctrine of design immunity to nevertheless recover from public entities and highlights the importance of reasonable signage in minimizing liability for dangerous conditions on public property.
I. TANSAVATDI ESTABLISHES THAT A PUBLIC ENTITY THAT IS NOT LIABLE FOR A DANGEROUS CONDITION DUE TO DESIGN IMMUNITY CAN STILL BE LIABLE FOR FAILURE TO WARN OF THE DANGER
Government Claims Act Section 830.6 grants design immunity to public entities that demonstrate three elements: (1) a causal relationship between the plan or design and the accident; (2) the discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.04 In essence, the rationale for design immunity is to maintain the separation of powers by keeping a judge or 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."05 The third elementâthe existence of substantial evidence supporting the reasonableness of