Arroyo v. State of California

• Decision Date: 27 April 1995
• Docket Number: No. B077432,B077432
• Citation: 40 Cal.Rptr.2d 627,34 Cal.App.4th 755
• Court: California Court of Appeals Court of Appeals
• Parties: Darron M. ARROYO, a Minor, etc., et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent. Civ.

Page 627

40 Cal.Rptr.2d 627

34 Cal.App.4th 755

Darron M. ARROYO, a Minor, etc., et al., Plaintiffs and Appellants, v. STATE of California, Defendant and Respondent.

Civ. No. B077432.

Court of Appeal, Second District, Division 6, California.

April 27, 1995.

Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc., Dennis Kruszynski, Phillip Scott Chan and Jan A. Gruen, San Francisco, for plaintiffs and appellants.

Daniel E. Lungren, Atty. Gen. of State of Cal., Robert H. Francis, Supervising Deputy Atty. Gen., and Joel A. Davis, Deputy Atty. Gen., for defendant and respondent.

GILBERT, Associate Justice.

A child walks on a hiking trail in a state park. Suddenly a mountain lion leaps out from the brush and mauls the child. May he sue the State for his injuries? No.

Government Code section 831.2 protects public entities and employees from liability for injuries caused by natural conditions on unimproved public property. Here we hold that mountain lions are part of the natural condition of the land. The immunity provided by section 831.2 precludes prosecution of an action.

Darron Arroyo, et al. (Arroyo), appeals from the judgment of dismissal in favor of respondent, the State of California (State), after the trial court sustained the demurrer of the State without leave to amend. We affirm.

FACTS

On March 12, 1992, nine year old Darron Arroyo was mauled by a mountain lion while he was hiking on a marked trail in Gaviota State Park (Gaviota) with his father, Steven Arroyo, and his brother, Justin Arroyo. Steven filed the instant action on behalf of himself, and as guardian ad litem for his sons, Darron and Justin.

Arroyo alleges that the State is liable under the California Tort Claims Act. (Gov.Code, § 830 et seq.) ¹ He pleads that the State knew of the dangerous condition posed by mountain lions at Gaviota. He alleges the State voluntarily assumed a protective duty to the public by providing brochures, verbal information and signs which warn visitors "of various dangers[,]" but which also suggest that Gaviota is a safe outdoor recreational park, "free from significant dangers."

He claims that a legislative moratorium on killing mountain lions created an artificial condition resulting in an overabundance of mountain lions at Gaviota which is foreseeably dangerous. He asserts breach of the statutory duty to eliminate or warn of the danger of mountain lion attacks in Gaviota. He also pleads negligent inspection, negligence, creation of a public nuisance and infliction of emotional distress. ²

The State demurred to the complaint based on the immunity established by section 831.2. Section 831.2 provides, in pertinent part, that "a public entity ... is [not] liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach." The trial court sustained the demurrer without leave to amend, and entered a judgment of dismissal. This appeal ensued.

DISCUSSION

Standard of Review

We independently review the sufficiency of a complaint to state a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.]' " (Ibid.) Where, as here, the demurrer is sustained without leave to amend, we determine whether there is a reasonable possibility that the complaint could be cured by amendment. If so, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. (Ibid.) The burden to prove there is a reasonable possibility to amend is on the plaintiff. (Ibid.)

Arroyo raises five issues on appeal concerning the applicability of section 831.2 to this case: 1. Is a wild animal a "natural condition" within the meaning of the statute? 2. Does the State have a specific duty to warn of mountain lions? 3. Does the immunity apply when signs warn only of ticks and snakes and employees state there are no other appreciable dangers? 4. Is the immunity affected by a statutory moratorium on hunting mountain lions? 5. Does Fish and Game section 1801, subdivision (g), enacted to alleviate health and safety problems caused by wildlife, affect the duty to warn of mountain lions in state parks?

Section 831.2 is an exception to the general rule that public entities are liable for injuries resulting from substantial, known dangerous conditions of its property. (Mercer v. State of California (1987) 197 Cal.App.3d 158, 164, 242 Cal.Rptr. 701; §§ 830, subd. (a); 835.) It provides absolute immunity for public entities against claims for injuries caused by natural conditions of unimproved public property. (Ibid.) Section 831.2 was enacted to ensure that public entities will not prohibit public access to recreational areas caused by the burden and expense of defending against personal injury suits and of placing such land in a safe condition. (Ibid.) Immunity provisions of the tort claims act generally prevail over all sections imposing liability. (See Sen. Legislative Com. com., Wests Ann. Gov.Code, (1980) § 815, pp. 168-169.)

Is A Wild Animal A "Natural Condition" Under Section 831.2?

Arroyo questions whether a wild animal constitutes a "natural condition" of the park within the meaning of section 831.2. He argues that only physical conditions of land are contemplated by the statute. The issue presented is one of first impression.

"When questions as to the applicability or interpretation of statutes are presented to this court, ... the controlling issue is the intent of the Legislature. [Citations.] To ascertain the legislative intent, courts have resorted to many rules of construction." (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831, 196 Cal.Rptr. 38, 670 P.2d 1121.) Among them are the comments to the Tort Claims Act which are formally adopted by legislative committees. (Id. at pp. 831-832, 196 Cal.Rptr. 38, 670 P.2d 1121.)

The Senate Legislative Committee Comment to section 831.2 provides, in pertinent part, that "It is desirable to permit the members of the public to use public property in its natural condition and to provide trails for hikers ... into the primitive regions of the State. But the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available ..., it is not unreasonable to expect persons who voluntarily use unimproved public property in its natural condition to assume the risk of injuries arising therefrom as a part of the price to be paid for benefits received." (See Sen. Legislative Com. com., Wests Ann. Gov.Code, (1980) § 831.2, p. 293.)

Although this statement of legislative intent is not completely dispositive of the issues presented, it indicates the breadth of the immunity intended by the enactment of section 831.2. It is the State's policy to encourage the use of hiking trails in primitive public regions. To implement this policy, section 831.2 relieves the State from the burden of making such areas safe and consequently from defending suits for injuries arising from such use. Section 831.2 requires the public to assume the risk of using hiking trails in state parks.

The immunity of section 831.2 is not restricted to conditions of real property. Section 830, subdivision (c), in pertinent part, defines " 'Property of a public entity' and 'public property' " to include "... personal property owned or controlled by the public entity...." Wild animals fall within this definition because they are owned by the State.

In Ex parte Maier (1894) 103 Cal. 476, 483, 37 P. 402, our Supreme Court declared that "[t]he wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so...." (Maier concerned the illegal sale of deer meat imported from Texas; accord Betchart v. Department of Fish & Game (1984) 158 Cal.App.3d 1104, 1106, 205 Cal.Rptr. 135, holding that Department of Fish and Game agents had the right to enter and patrol private open lands to enforce state hunting laws without a warrant because California wildlife is publicly owned.)

California courts deem wild animals to be owned by the people of the state. Wild game cannot be confined to private lands. (See San Diego County Archaeological Society, Inc. v. Compadres (1978) 81 Cal.App.3d 923, 927, 146 Cal.Rptr. 786; overruled on other grounds in Summa Corp. v. Calif. ex rel. Lands Comm'n (1984) 466 U.S. 198, 104 S.Ct. 1751, 80 L.Ed.2d 237.) Given the intent of the Legislature in enacting section 831.2, we hold that wild animals are a natural part of the condition of unimproved public property within the meaning of the statute.

Duty To Warn; Signs And Information Given

Arroyo asserts that Gaviota had a duty to place warning signs concerning mountain lions. Section 835 provides, in pertinent part, that "[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property...." (Emphasis added.) A " 'dangerous condition' " means a condition ... that creates a substantial ... risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a).) Generally, a public entity has a duty to warn of a dangerous condition under section 830, subdivision (a).

The absolute immunity created under the specific provisions of section 831.2 is an exception to the general provisions of sections 835 and 830. Immunity provisions of the tort claims act generally prevail over provisions for liability. (See Sen. Legislative Com. com., Wests Ann. Gov.Code, (1980) § 815, pp. 168-169.)

In McCauley v....