McKray v. State of California

Opinion

DRAPER, P. J.

This is an action for damages for personal injuries resulting from a one-car accident. Plaintiff was a passenger in an automobile driven by one Laspada on State Highway 29 about 9:10 a.m., on a clear, dry July day. His car was travelling in the outer (right) lane of the two southbound lanes at a speed of 45-55 miles per hour. He looked across the highway at a pedestrian. His car left the 12-footwide lane, crossed the 10-feet wide shoulder, and straddled a berm 2 to 8 inches high. The car continued, partly on the shoulder and partly on the dirt beyond it, some 75 feet until it struck a concrete abutment. Laspada died in a later and unrelated accident. He and Volkswagen of America, Inc. were named as defendants but were not served. Defendant state and its director of transportation sought and were granted summary judgment. Plaintiff appeals.

The declarations and photographs accompanying them establish that for more than 1,000 feet to the north of the abutment, the road was straight and free of curves, bumps or dips which could in any way obscure vision. Highway 29 had originally been a two-lane road. In 1948, the two southbound lanes were added, and the original road became the

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two northbound lanes. In 1962, the four lanes were repaved, and a surfacing material called “chip seal” was applied to the shoulder. A traffic expert for plaintiff averred that if a guard rail had been placed at the edge of the shoulder near the abutment a less serious accident would have occurred. He gave statistics that guard rails reduced injuries and deaths from cars running off the roadway, but did not relate such statistics to this one-mile stretch. The State filed declarations that no accidents had occurred on this highway section during the five and one-half years for which statistics were available, and that no complaints about this roadway had been received. It also showed that some 21 million cars had traveled the southbound lanes in that period and that, while there had been an increase in traffic, peak hour checks showed that at no time did traffic approach the designed capacity of the roadway. In a written opinion, the court concluded that the accident was due solely to the “pilot error” of Laspada, and also that design immunity (Gov. Code, § 830.6) barred the action as against the state.