Buchanan v. City of Newport Beach

• Decision Date: 29 July 1975
• Court: California Court of Appeals Court of Appeals
• Parties: Donald Raymond BUCHANAN, Plaintiff and Appellant, v. CITY OF NEWPORT BEACH, Defendant and Respondent. Civ. 12884.

Page 338

123 Cal.Rptr. 338

50 Cal.App.3d 221

Donald Raymond BUCHANAN, Plaintiff and Appellant, v. CITY OF NEWPORT BEACH, Defendant and Respondent.

Civ. 12884.

Court of Appeal, Fourth District, Division 1, California.

July 29, 1975.

Hurwitz & Hurwitz, Newport Beach, for plaintiff and appellant.

W. Mike McCray, Tustin, for defendant and respondent.

COUGHLIN, ^* Associate Justice.

Plaintiff appeals from a judgment against him in favor of defendant, which was signed by the court, in a jury case based on an order granting defendant's motion for a 'nonsuit' made after all parties had rested. The judgment decreed defendant 'have judgment' against the plaintiff. ¹

Plaintiff was injured while surfing at a beach, on the oceanfront, called the Wedge, created by the construction of a jetty, dredging sand from the channel of the harbor entrance adjacent to the jetty, and depositing the dredged sand on what had been submerged sand spits, raising the beach level by 27 feet and causing a steep slope from the shoreline into the water. This man-made condition of the beach, plus the interaction of the ocean swells against the jetty, causing a condition described in the evidence as a 'refraction' of the waves, at times produced a dangerous surfing condition. Plaintiff claims on August 14, 1966 the Wedge was under the control of defendant, the City of Newport Beach; the condition thereof was a dangerous condition; as a result of this condition he was injured on that date while body-surfing; and defendant is liable therefor under the provisions of Government Code section 835, because it had notice of the dangerous condition 'a sufficient time prior to the injury to have taken measures to protect against the dangerous condition'.

Although a discussion between court and counsel respecting the issue of ownership and control of the beach preceded defendant's statement of the grounds for its motion for nonsuit, the motion as made did not expressly include any deficiency in the evidence as to this issue. In his complaint plaintiff alleges defendant owned, leased, controlled and maintained the beach. The evidence establishes, on the date of the accident the beach was owned by the United States Government; later was leased to defendant for recreational purposes; and at the time of trial the City was occupying it under that lease. On appeal defendant raises the issue under a contention the Federal Government is an indispensable party to the action because it owned the beach and the lease thereof to defendant was not made until after the accident occurred; and the trial court did not have jurisdiction in the premises. Plaintiff responds with the contention even though defendant did not own or lease the property at the time of the accident, it controlled the property and, under the principles stated and applied in Low v. City of Sacramento, 7 Cal.App.3d 826, 87 Cal.Rptr. 173, is liable.

The situation is not one involving an indispensable party under the rule stated in Bowles v. Superior Court, 44 Cal.2d 574, 583, 283 P.2d 704. The injury plaintiff sustained was caused by defendant's failure to give warning of the dangerous condition, which is independent of any claim he might have against the Federal Government, and a judgment may be obtained against defendant 'without inevitably affecting' the interest of the United States.

The true issue involved is whether the evidence would support a finding of control by the defendant.

In ruling upon a motion for nonsuit the court must accept as true any substantial evidence, including the inferences reasonably deducible therefrom, which would support findings in favor of the plaintiff. (Estate of Callahan, 67 Cal.2d 609, 612, 63 Cal.Rptr. 277, 432 P.2d 965; Kirk v. Los Angeles Ry. Co., 26 Cal.2d 833, 837--838, 161 P.2d 673).

There is evidence the defendant controlled the beach, for a time caused a full-time lifeguard to be stationed there, employed the lifeguards who assisted defendant following his injury, posted a sign stating 'No swimming between jetties', which was an area then owned by the Federal Government, posted a sign at the Wedge stating 'No lifeguard on duty', and took council action, with attendant pubic meetings, on an ordinance to close the beach to swimmers, resulting in rejection of the ordinance. This evidence inferentially supports the conclusion defendant exercised control over the beach under the rule stated in Low v. City of Sacramento, supra, 7 Cal.App.3d 826, 87 Cal.Rptr. 173.

The evidence shows as plaintiff was riding the surf, suddenly, as he approached the shore, he was thrust down into the sand by the action of the wave he was riding, breaking his neck. There is evidence supporting the conclusion this type of wave action is the product of the action of the waves against the jetty and the steep offshore condition of the beach created by the deposit of dredged sand; characteristics of the wave action in the area of the Wedge, before construction of the jetty and the deposit of dredged sand, were altered radically by the construction and deposit; the action of the 'plunging' type of wave, such as that occurring after the change, differs from the 'spilling' type in that when it breaks on a steep beach there is an abrupt transition in the course of which the top of the wave plunges from top to bottom instead of undergoing a gradual spilling effect.

There also is evidence supporting the conclusion the City had actual notice of the dangerous condition of the beach, but posted no warning signs respecting such even though it considered closing the beach to swimmers.

Defendant's motion for nonsuit was premised on the following statement: '(T)he City of Newport Beach . . . moves for judgment based upon its affirmative defense of 831.2 of the California Government Code . . .' which provides: 'Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any . . . beach'; there were no improvements on the beach in question; the beach, the waves, the direction of the waves, and the type of waves that are normally hitting a beach will seek out their own profile within a short period of time; the evidence only shows the profile of the beach at the time the dredged sand was deposited there was different than it is now in that the waves broke farther back; the beach is unimproved; the deposit of dredged sand on the beach was not an improvement but a matter of distributing waste sand and clearing the navigable channel of the harbor, which was an improvement of navigational facilities and not an improvement of the beach.

In support of the motion defendant cited the decision in Rendak v. State of California, 18 Cal.App.3d 286, 95 Cal.Rptr. 665, applying Government Code section 831.2 to the facts in that case and upholding the decision of the lower court finding the immunity statute foreclosed liability of the state.

The trial court concluded, among other things, the evidence establishes as a matter of law the...