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Home My WebLink About24-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Authorization to join amicus brief in support of The State Department of Transportation in the case of Cornette v. Department of Transportation Dept: CITY ATTORNEY Date: October 23,2000 1f'!'....-qIA.., " ". -I' ~' \. ~'" ._i~.; ...',; .,;"" Synopsis of Previous Council Action: None, Recommended motion: That the Mayor and Common Council authorize the City Attorney to join in the amicus brief in support of the State Department of Transportation in the case of Cornette v. Department of Transportation before the California Supreme Court, -~ Contact person: Robert L. Simmons Phone: 5355 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: None Source: Finance: Council Notes: Agenda Item No, a Lj nllP/oo I STAFF REPORT Council Meeting Date: October 16.2000 TO: Mayor and Common Council FROM: James F. Penman, City Attorney DATE: October 23, 2000 AGENDA ITEM: Authorization to join amicus brief in support of The State Department of Transportation in the case of Cornette v. DeparlmentofTransporlaUon The State Department of Transportation has requested amicus support from all cities and counties throughout the state. The sole issue in the case is this: Does the judge or the jury decide if the defense of design immunity is lost when conditions change? Normally the court decides the issues relating to design immunity. It is a matter of deference to the governing body of a political entity. The court will not second guess such a decision so long as it is based on reasonable criteria. In the above case the plaintiff claimed that conditions had changed since the freeway was built requiring a median divider to be installed. The changes included increased traffic and increased number of accidents. Expert testimony was also used by both sides. The trial court held all issues were to be decided by the judge. On appeal, the court held that the original design immunity was a question for the judge but the changed conditions created a question for the jury. If this decision stands it will allow juries to second-guess authorized decisions on whether work should be done and how best to fund a remedial project. The City Attorney recommends that the City of San Bernardino join in the amicus curiae brief. There is no cost to the City in the joinder of this brief. ~(P , t'" ~L' MICHAEL M. POLLAK SCOTT J. VIDA GIRARD FISHER J. SUSAN GRAHAM DANIEL P. BARER. LAWRENCE J. SHER DAVID A. HAOLEN JUDY l. McKelVEY DANIEL S. HOUSER POLLAK, VIDA & FISHER ATTORNEYS AT LAW 1801 CENTURY PARK EAST 26TH FLOOR LOS ANGELES, CALIFORNIA 90067-2343 TELEPHONE (310) 551-3400 FAX (310) 551.1036 E.MAll lawOpysndf.com INTERNET www.pvandf.com .CERTlFIEO.PECIALIST....PI'EU...TELAW STATE BAROF CALIFORHIA BOARD OFLEQ"L SPECIALIUTION OF COUNSel: GERARD A. LAFOND, JR. MICHAEL R. NEBENZAHL October 13, 2000 James Penman City Attorney 300 North "D" Street San Bernardino, CA 92418-0001 Re: REOUEST FOR P ARTICIP ATION IN AMICUS BRIEF Cornette v. Department of Transportation Supreme Court No. S0890 1 0 [Please respond by November 10, 2000] Dear Mr. Penman: I urge your City to join in the Cornette amicus brief, This California Supreme Court case will decide whether loss of design immunity due to changed conditions is a court or jury question, The League of California Cities and the California State Association of Counties have approved amicus support, They have authorized our firm to write the brief. The League does not submit amicus briefs in its own name. Instead, it encourages individual cities to leml their names. Therefore, we request all California cities to join as amici. The Case The Cornettes had an auto accident on a state highway, in which they crossed over a dirt median into opposing traffic, They sued Caltrans. They alleged that the highway was in a dangerous condition because it lacked a median barrier. The trial court bifurcated the trial, and tried Caltrans' design immunity defense (Govemment Code section 830.6) first, without ajury, During the design immunity phase, the parties produced conflicting evidence (factual and expert) about whether Caltrans had lost the design immunity through changed conditions. The trial court ruled that it -- not a jury -- should resolve all factual and legal issues, and found for Caltrans on design immunity, But the appellate court reversed. It decided that when facts are disputed, all the elements of design immunity -- except whether substantial evidence supports the October 13, 2000 Page 2 reasonableness of the design -- are jury questions. The Supreme Court granted review. The Supreme Court will hand down an important decision on governmental tort liability. Current case law states that all elements of design immunity should be decided by the court, This allows public entities to end dangerous-design cases at swnmary judgment, or in the immunity phase of a bifurcated trial, before the case goes to the jury. This decision could require nearly all design irnmunity cases to go to the jury, The League seeks to ensure that that does not happen. Issues Government Code section 830,6's design immunity exonerates public entities from liability for reasonably-approved plans or designs for public property. Whether the public entity's approval of the plan or design was reasonable is determined by the court under the "substantial evidence" test: if the entity produces substantial evidence (such as an expert's opinion) that the design could reasonably be approved, reasonable approval is established -- even if the plaintiff presents evidence that the plan is umeasonable. The immunity can be lost if physical conditions that changed since the plan or design was approved render it dangerous. Until Cornette, courts held whether the plan or design remained reasonable, despite changed conditions, was also decided by the court under the substantial evidence standard, The Cornette case poses a single core issue: Do all issues concerning design immunity -- including whether changed conditions eliminating immunity -- present legal questions for the court to resolve on the "substantial evidence" standard, regardless of conflicting facts? Or are all design immunity issues (except whether the initial design was reasonable) questions for the jury? We will argue that the substantial evidence standard should apply not only to the reasonableness of the original approval, but also whether the construction still conforms to a reasonable plan or design despite changed conditions. Design immunity is a powerful tool for ending dangerous condition cases before they can go to the jury; and for preventing juries from second-guessing discretionary design decisions. The Supreme Court's decision in this case could disable that tool. You can find the appellate decision at 80 Cal.App.4th 1239; 95 Cal.Rptr,2d 733; or 2000 Cal.App. LEXIS 563. Reauest It's important to get the cities on board. Their stance really does influence the court. In a case we recently argued before the California Supreme Court, Chief Justice George turned to the League's amicus counsel and asked pointedly, "Where do the cities stand?" We'd like to make a strong statement about that in this case. October 13, 2000 Page 3 If your City is willing to participate, please complete and return the enclosed authorization to my office. The form should be mailed to the undersigned by November 10, 2000. Thank you. Very truly yours, POLLAK, VIDA & FISHER ~P~/f/J DANIEL p, BARER GF:pb Enclosure cc: Joanne Speers League of California Cities G:\WPDOCS\A TIYS\GF\amicU$ briefs\Comette\Comcttcmrg-lOI300.wpd AUTHORIZATION [please mail by November 10, 2000] To: Daniel P. Barer Pollak, Vida & Fisher 180 I Century Park East, 26th Fir. Los Angeles, CA 90067 Re: Cornette Amicus Brief Please add the City of as a party to the League of California Cities' amicus brief in Cornette v, Deoartment ofTransDortation (California Supreme Court Case No, S08901O), It is understood that your firm will provide its services without charge. Please provide a copy of the brief. L yes.) L no.) By: [Signature] [Print or type name and title] [State Bar Nwnber if applicable] Address (only if different from our mailing to you):