230 Cal.App.2d 520, 10876, Flournoy v. State

Docket Nº:10876
Citation:230 Cal.App.2d 520, 41 Cal.Rptr. 190
Opinion Judge:[10] Pierce
Party Name:Flournoy v. State
Attorney:[7] P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein and Reginald M. Watt for Plaintiffs and Appellants. [8] Harry S. Fenton, Robert F. Carlson, Kenneth G. Nellis and Gordon S. Baca for Defendants and Respondents.
Case Date:November 09, 1964
Court:California Court of Appeals

Page 520

230 Cal.App.2d 520

41 Cal.Rptr. 190

Larry FLOURNOY, Catherine Flurnoy, and Valerie Flournoy, by and through their guardian ad litem, Lawrence Flournoy, and Lawrence Flournoy, Plaintiffs, and Appellants,


The STATE of California, and the Department of Public Works, and the Division of Highways et al., Defendants and Respondents.

Civ. 10876.

California Court of Appeal, Third District

Nov. 9, 1964.

Hearing Denied Jan. 6, 1965.

Page 521

[Copyrighted Material Omitted]

Page 522

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants.

Page 523

Harry S. Fenton, Robert Carlson, Kenneth Nellis, Sacramento, for respondents.

PIERCE, Presiding Justice.

Plaintiffs, the heirs of Cherre Flournoy, deceased, appeal from a judgment following the sustaining of the State of California's demurrer without leave to amend their wrongful death complaint.

The complainants' cause of action against the state was based upon an alleged dangerous and defective condition of a highway. The accident happened on November 14, 1955; the complaint was filed February 27, 1956. The eight and a half years between the latter date and the present are to be accounted for by the metamorphic processes of the development of the law of governmental tort liability: pre-Muskopf, [*] through Muskopf, through the 1961 'moratorium' legislation, to reach the goal--trustfully (but perhaps naively) hoped to be ultimate--of the 1963 legislation. (Gov.Code sec. 810 et seq., Stats.1963, ch. 1681.)

Complex issues have been argued: (1) Does the 1963 legislation violate due process and equal protection, whether applied prospectively or retrospectively? (2) If it is constitutional when applied prospectively, can it also be applied retroactively? (3) Did the complaint state a cause of action under the rule of Muskopf? (4) Does the complaint state a cause of action under the 1963 legislation? (5) If it does not, could it have been amended to state one, to the end that the court prejudicially erred in sustaining the state's demurrer without leave to amend?

We have concluded that the 1963 legislation is constitutional; that the complaint, although inadequately framed presently, might be amended to state a cause of action both under the 1963 legislation (Stats.1963, ch. 1681) in its chapter 2 'Dangerous Conditions of Public Property' (Gov.Code secs. 830-840.6) and under the common law of tort liability sans governmental immunity (as abrogated by Muskopf); that the trial court erred prejudicially in sustaining the state's demurrer. These conclusions require reversal.

Our discussion of the question of the constitutionality of the 1963 legislation, having general application, will precede consideration of the appeal on the facts pleaded. This appeal, as we stated in Ferreira v. Barham (Oct. 1964), 230 A.C.A. 135,

Page 524

40 Cal.Rptr. 739, is one of a series of three appeals now before this court 1 where plaintiffs, all represented by the same firm of attorneys, contend that the 1963 governmental tort liability legislation is unconstitutional.

In Ferreira, supra, we answered the contention (also raised by the same counsel) that California's guest law violated due process and equal protection. There we stated (on page 137, 40 Cal.Rptr. on page 741) the rule that 'the Legislature may constitutionally alter, modify or eliminate prospectively common law rules governing private tort liability where it acts reasonably upon the basis, and within the scope, of its regulatory police power.'

There are even more compelling reasons why the Legislature must be conceded that power where the liability for torts affected is not private but that of governmental agencies. As Professor Van Alstyne (research consultant of the California Law Revision Commission) says in 5 California Law Revision Commission Reports, 1963, Sovereign Immunity Study, page 516:

'Putting to one side the problem of retrospective application, there can be little doubt that the Legislature constitutionally may alter, modify or eliminate the common law rules governing tort liability of public entities, provided, of course, that such legislation does not violate constitutional restrictions against arbitrary classification.'

It is also stated on page 516 that:

'* * * [T]he multivarious differences between public entities and private individuals (including corporations) preclude any effective contention that legislative distinctions favoring public entities in matters of tort liability would be arbitrary.'

In a footnote to the foregoing statements, this author says (op. cit. p. 516, footnote 5):

'It appears to be settled that for tort liability purposes governmental entities may reasonably be classified differently from private persons, see Dias v. Eden Township Hosp. Dist., 57 Cal.2d 502, 20 Cal.Rptr. 630 (1962); Powers Farms v. Consolidated Irr. Dist., 19 Cal.2d 123 (1941); Von Arx v. City of Burlingame, 16 Cal.App.2d 29 (1936), and that all types of public entities need not be classified alike or exposed to identical tort responsibility. See Bosqui v. City of San Bernardino, 2 Cal.2d 747 (1935) (holding Public Liability Act valid notwithstanding fact that it imposed tort liability upon cities, counties and school districts but not upon State or other public entities.)'

Page 525

We agree with those statements. Indeed, it would seem almost an absurdity to argue that the Legislature, within its regulatory police powers, can change common law rules prospectively affecting private litigants but cannot do so when a governmental entity is involved. This would be particularly strange in the retrospective view of the long history of governmental-liability-case-law wherein the power of legislatures so to act has not only been asserted repeatedly but such power (before Muskopf) has been sometimes said to be exclusive. And Muskopf certainly does not hold that the Legislature must abdicate all its power in this very important field of police regulation. In fact it conceded that, although governmental immunity as a matter of substantive law was originally court-made and therefore could be (and was) court-unmade, the Legislature still had procedural control in granting and withholding consent to suit. The California Constitution (Art. XX, sec. 6) expressly grants such control to the Legislature. To hold that the Legislature is powerless to legislate regarding substantive common law liability of public entities while possessing power over all remedies would be an astonishing anomaly.

This is not to say that because the Legislature has power to give or withhold its consent to be sued, it must also possess unlimited power to grant or deny all public entity liability for torts. As in the case of legislation affecting the common law rights of private individuals it must, if it is to withstand scrutiny on constitutional grounds, be in reasonable furtherance of some public purpose. Justice Traynor, speaking generally, in Moskopf, supra, 55 Cal.2d on page 216, 11 Cal.Rptr. on page 91, 359 P.2d on page 459, stated: 'Public convenience does not outweigh individual compensation.' But that statement does not mean, as appellant would have us construe it, that no policy considerations can justify legislative action affecting the tort liability of public entities. In fact, Muskopf tacitly recognizes such legislative power. In its justification of court-made policy on governmental liability it pointed out (on page 218, 11 Cal.Rprtr. on page 93, 359 P.2d on page 461): 'We are not here faced * * * with a comprehensive legislative enactment designed to cover a field.' (See also Thelander v. Superior Court (1962), 58 Cal.2d 811, 814, 26 Cal.Rptr. 643.)

With the 1963 legislation California courts now ARE 'faced with a comprehensive legislative enactment designed to cover a field.' Appellants, having examined this legislation, characterize it as abolishing 'all common law or judicially declared forms of liability for public entities without providing

Page 526

any substitute form of redress.' Our own characterization, following our study of the new law, is quite different. In fact, as regards the facts, appellants state they expect to prove (see infra) the 1963 legislation does not abolish common law liability for public entities. On the contrary, as will be developed below, it essentially codifies common law rules (with some modifications to be noted) and gives statutory approval to the Muskopf rule abrogating sovereign immunity.

Preliminary to a review of the provisions of the new law applicable, we now state the allegations of the complaint against which the law is to be applied.

In the first cause of action after an allegation that 'California State Highway #99, at or near Clear Creek Bridge, in Shasta County, California, was, and is, a public highway' and that it is 'under the maintenance, care and control of the State of California, and the Department of Public Works, and the Division of Highways thereof,' and of named officer and employee defendants, it is further alleged: 'At all times herein mentioned defendants * * * so negligently maintained said Clear Creek Bridge at said place, as to cause a dangerous and defective condition to exist, namely, that moisture would condense on said bridge and, in freezing weather would freeze thereon, causing a sheet of ice to form on the roadbed of said bridge and over which decedent on November 14, 1955, drove a 1952 Plymouth automobile * * * and was thereby caused to go into a skid' as a result of which her car was struck by a cargo truck and trailer owned by defendant OREGON-NEVADA-CALIFORNIA FAST FREIGHT, INC. 2 Also alleged is the claim that the state and its officers had both actual and constructive knowledge and notice of the dangerous...

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