What is the test for design immunity in a motor vehicle accident?

The trial court concluded plaintiffs had failed to submit any evidence to create a triable issue of material fact with respect to the first two elements of the defense of design immunity: a causal connection between the design and the accident, and the design being subject to discretionary approvals before the construction of the roadway. The court also concluded plaintiffs had failed to show there was an absence of substantial evidence to support the defense expert's opinion that the approval of the road design was reasonable; "[t]he objections to the defense evidence having been overruled and plaintiffs not having submitted any evidence in opposition to raise a triable issue of material fact," the opinion was substantial evidence of reasonability (citing Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1264, 1267). The court then addressed whether changed circumstances resulted in the loss of design immunity. It found that the failure to include either the purported increase in traffic volume or speed limits as allegations in the complaint precluded reliance on these factors in opposition to summary judgment. It noted, nonetheless, that plaintiffs had failed to produce any evidence that traffic volume or speed played any factor in the accident. Although this too was absent from the pleadings, the trial court also found that plaintiffs had failed to satisfy the strict standard of substantial similarity between the other accidents included in their expert's declaration and the present accident necessary to establish the development of a dangerous condition from changed circumstances (citing our decision in Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1072).

As our former presiding justice has noted, a plaintiff cannot oppose a motion for summary judgment on a theory that is not embraced in the operative pleading. (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576 [cannot defeat primary assumption of the risk as a defense with a theory of reckless conduct unsupported in pleading]; accord,

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