Cabell v. State of California , 67 Cal. 2d 150 ( 1967 )

BURKE, J.

Plaintiff in this personal injury action appeals from a summary judgment in favor of defendant State of California. As will appear, we are of the view that the trial court was correct in its apparent conclusion that the State had established a defense to the action. Accordingly, the judgment must be affirmed.

Plaintiff alleges in his complaint that in December 1961 he was a student at San Francisco State College and while attempting to push open a swinging glass door in a dormitory building his hand “slipped from the side paneling and was precipitated through the glass on the door, which was not of the safety variety,” thereby injuring plaintiff; that his injuries were caused because defendants^{1 2}negligently designed, constructed, operated and maintained the glass doors in the dormitory. Defendant State in an amendment to its answer alleges, in reliance upon section 830.6 of the Government Code,³ that the plan, design, standards and construction of the glass door here involved were approved by the State Division of Architecture and by State employees exercising discretionary authority in giving such approval. Defendant’s motion for summary judgment was based upon the same defense.

Section 830.6 is a part of division 3.6 added to the Government Code in 1963 to deal comprehensively with the problem of governmental immunity from tort liability. The 1963 legislation, sometimes termed the Tort Claims Act, can constitutionally be applied to causes of action which arose prior to its effective date, in accordance with the express intent of the Legislature stated therein. (Stats. 1963, ch. 1681, § 45. subd. (a) ; Heieck & Moran v. City of Modesto (1966) 64 Cal.2d 229, 231-232 [49 Cal.Rptr. 377, 411 P.2d 105] ; County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 844-846 [44 Cal.Rptr. 796 402 P.2d 868] ; see also Teall v. City of Cudahy (1963) 60 Cal.2d 431 [34 Cal.Rptr. 869, 386 P.2d 493] ; Flournoy v. State of California (1964) 230 Cal.App.2d 520 531-537 [41 Cal.Rptr. 190] ; Hayes v. State of California (1964) 231 Cal.App.2d 48 [41 Cal.Rptr. 502] ; City of Burbank v. Superior Court (1965) 231 Cal.App.2d 675 [42 Cal.Rptr. 23] ; Loop v. State of California (1966) 240 Cal.App.2d 591 [49 Cal.Rptr. 909] ; Dahlquist v. State of California (1966) 243 Cal.App.2d 208, 210 [52 Cal.Rptr. 324].) No sound basis exists for differentiating in this respect, with attendant inequality, between causes arising out of so-called “proprietary” as distinguished from “governmental” activities, or between those based on statute and those grounded on rules established by judicial decisions. (See Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457].)

Section 835³ declares that except as otherwise provided by statute a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes certain things, including notice to the entity of the dangerous condition a sufficient time prior to the injury to have taken protcctive measures. Section 835 is a part of the chapter to which the immunity or defense of plan or design applies, which is found in section 830.6 (ante, fn. 2) and relied upon by defendant.

The rationale of this immunity, as explained by the California Law Revision Commission (Recommendation Relating to Sovereign Immunity 823) is: “There should be immunity from liability for the plan or design of public construction and improvements where the plan or design has been approved by a governmental agency exercising discretionary authority, unless there is no reasonable basis for such approval. While it is proper to hold public entities liable for injuries caused by arbitrary abuses of discretionary authority in planning improvements, to 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.” (See Van Alstyne. California Government Tort Liability (Cont. Ed. Bar 1964) p. 217.) Further. “The reasonableness of adoption or approval of the design, plan, or standards is measured as of the time the adoption or approval occurred. A plan or design now judged to have been reasonable when adopted is not actionable even though its defective nature is considered wholly unreasonable under present circumstances and conditions.” (Id. p. 556.)

From the supporting and opposing declarations filed with respect to defendant’s summary judgment motion in this case it appears that the glass through which plaintiff’s hand was thrust was a pane in a fifth-floor swinging lavatory door of a State-owned dormitory in which plaintiff was a paying resident. Plans and specifications for the dormitory, including lavatory doors and the. glass therein, were prepared in 1957 by the State Division of Architecture, after staff study, and thereafter approved by the State Architect, the State Public AVorks Board, and in November 1958 by the State Department of Public AVorks. “Obscure” glass, which is % inch thick, was specified for the doors, and installed, and was the type in the door here involved at the time plaintiff was injured. The wooden frame enclosing the glass was 6 inches wide; on the frame was a metal plate 4 inches wide which “was the standard type used on wooden doors that swing. ’ ’ According to the declaration of the deputy state architect, at the time the plans and specifications for the dormitory were adopted and approved “the use of this type of door and glass in public buildings, including dormitories, for entrances to toilet rooms, was widespread. [It] was used in restroom doors so that the silhouettes of persons approaching . . . from opposite directions would be visible, thus eliminating the hazard of a collision. Wire glass was sometimes used for fire safety to prevent the glass from dropping out of its frame in the event of a fire. Wire imbedment in glass actually reduces its strength against breakage, and the glass specified and used in the door [here] involved ... is twice as strong as the same thickness of glass with wire imbedded in it. ’ ’

It is thus apparent that there is substantial evidence upon the basis of which a reasonable public employee could have adopted the plan or design or standards for the lavatory doors, including the glass, or a reasonable governmental body or employee could have approved them, and that accordingly defendant State has established its immunity under section 830.6 (ante, fn. 2) with respect to the door as originally planned and constructed.

However, the summary judgment declarations further disclose that as early as December 1960 another student had been injured when the glass in a sixth-floor lavatory door in the dormitory had given way and broken when he had attempted to push the door open ■ that approximately one month before plaintiff was allegedly injured in December 1961 the glass in the door involved in plaintiff’s accident had shattered and broken into pieces when a student’s arm had come in contact with it, and had been replaced by the college maintenance department with the same type of glass as that originally installed; the glass pane in another lavatory door on the same floor of the dormitory had also broken about a month before plaintiff’s accident.

Plaintiff contends that the type of glass originally installed had thus been shown to be dangerous and that replacement of the broken glass with the same type as originally used constituted maintenance of a dangerous condition by defendant State to which the plan or design immunity does not apply. We are persuaded that there is no merit in this contention. As noted hereinabove, the plan or design is to be judged as of the time it was adopted or approved. If the broken glass had not been replaced at all but instead had been left with sharp or jagged pieces still in the door, or if it had been replaced with glass inferior to that originally used, then a charge of dangerous condition could not be met with the plan or design defense. But when, as here, the maintenance was in conformity with the original plans and specifications, the immunity provided by section 830.6 comes into play. Our holding that the. immunity applies with respect to ordinary routine maintenance of public property is, of course, to be distinguished from a situation in which reconstruction or new construction is engaged in and in which the showing of reasonableness should relate to the time of adoption of the plan or design for such reconstruction or new construction and not 1o the time of adoption of the original plan or design.

The summary judgment in favor of defendant State of California is affirmed.

Traynor, C. J., McConib, J., Sehauer, J.,^* and Draper, J, pro tem.,^† concurred.

1 Tlie contractor who constructed the dormitory building for the State of California was also joined as a defendant. No appeal has been taken from a summary judgment granted in favor of the contractor.

2 Seetion 830.6: "Neither a public entity nor a public employee is liable under this chapter [i.e., §§ 830-840.6] for "an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the eonstruetion or improvement 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, if the trial or appellate court determines that 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. ’ ’

3 Unless otherwise stated, all section references hereinafter are to the 1963 Tort Claims Act as found in the Government Code.

* Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.

† Assigned by the Chairman of the Judicial Council.