Design Immunity Defense In Flooding Damages Claim In California
Mozzetti v. City of Brisbane (1977) involved streets and sidewalks with inadequate drainage which caused flooding to adjacent property.
The trial court instructed the jury on the elements of design immunity, and the jury found no immunity and awarded damages to the plaintiffs. (Mozzetti v. City of Brisbane, supra, 67 Cal. App. 3d at pp. 569-572.)
The city appealed, arguing that the issues of prior approval and reasonableness were legal issues for the court and should not have been submitted to the jury. (Id. at p. 572.)
The appellate court agreed that "design immunity is a legal issue for the court." (Ibid.)
It stated that design immunity normally is raised by motion for summary judgment, nonsuit, or directed verdict, and that the court ruling on such a motion determines "whether the evidence is sufficient to support the design immunity defense (Id. at p. 573.)
The Mozzetti court concluded that the city had invited error by requesting the jury instruction and that it did not produce sufficient evidence to establish the elements of design immunity in any event, so the instruction should not have been given. (Mozzetti v. City of Brisbane, supra, 67 Cal. App. 3d at pp. 573-575.)
Since the city had failed to produce evidence to support the elements of design immunity, the court did not apply the rule that subsequent cases appear to have gleaned from Mozzetti that the elements of design immunity are legal issues for the court to decide.
To the extent Mozzetti states that rule the statement is dictum, and we decline to follow it.