Clayton v. City of Sunnyvale

• Decision Date: 08 October 1976
• Citation: 62 Cal.App.3d 666,133 Cal.Rptr. 306
• Court: California Court of Appeals Court of Appeals
• Parties: Clevester CLAYTON, etc., et al., Plaintiffs and Appellants, v. Walter ROSSMAN et al., Defendants and Respondents. Civ. 37543.

Page 306

133 Cal.Rptr. 306

62 Cal.App.3d 666

Clevester CLAYTON, etc., et al., Plaintiffs and Appellants, v. Walter ROSSMAN et al., Defendants and Respondents.

Civ. 37543.

Court of Appeal, First District, Division 3, California.

Oct. 8, 1976.

Hearing Denied Dec. 2, 1976.

Ellen J. Beilock, Beilock, Sax & Wilson, Oakland, for appellants.

F. John Royce, Royce & Jolly, Mountain View, for respondents.

SCOTT, Associate Justice.

Clevester Clayton, a minor, and Rosie Clayton, his mother, appeal from a judgment entered in favor of the City of Sunnyvale upon the granting of a motion for summary judgment.

The pleadings and other documents upon which the motion for summary judgment was based reveal that on June 3, 1973, appellant Clevester, age 17, was the guest of a tenant of an apartment building located at 973 Helen Street in Sunnyvale, California. While on the premises, Clevester fell down a flight of stairs, sustaining bodily injuries resulting in permanent disability. Clevester's mother, Rosie Clayton, was not present at the scene of the accident. She learned of its occurrence from a third person and saw her son in the hospital approximately an hour later.

The apartment building where the accident occurred was privately owned, built, and managed by Walter Rossman and Don Hauger. The building permit for the apartment house had been issued by the City of Sunnyvale to Don Hauger on April 14, 1960, following a review of the plans and specifications by a building inspector. During the course of construction, the building was inspected on numerous occasions by a Department of Public Works building inspector. Thereafter, the premises were inspected at least once a year by the Department of Public Safety.

Appellants alleged that respondent city and city employees were negligent in viewing, inspecting or failing to inspect the apartment building premises and designs, plans and specifications therefor, and that this negligence caused the subject stairway to be designed and constructed with patent defects which created a dangerous condition and thereby proximately caused Clevester Clayton's injuries.

The question presented here in whether a public entity is immune from liability for the negligence of its employees in inspecting or failing to inspect a building and designs therefor, which negligence caused the building to be designed and constructed with patent defects creating a dangerous condition proximately causing personal injuries. We conclude that the city is immune from liability.

Appellants contend that respondent city was under a mandatory duty to review and inspect the subject premises both before and after construction, and that breach of that duty rendered it subject to liability. Appellants cite Government Code section 815,6, ¹ which provides:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

Respondent relies on the governmental immunity provisions contained in section 818.6, ² which provides:

A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.

Appellants rely principally upon Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 124 Cal.Rptr. 305. In Elson, the court held that the immunity provisions of sections 818.2 and 818.4 relate only to discretionary activities of a public entity and do not provide immunity for the entity's failure to perform a mandatory duty. Appellants ask that we extend the rule of Elson to section 818.6. We decline to do so.

In the Elson case, appellant Elson had recovered a judgment for personal injuries sustained when struck by a passenger bus. The bus company was operating without liability insurance, and had no assets with which to satisfy the judgment. Elson subsequently brought an action against the Public Utilities Commission, charging that it negligently failed to revoke the bus company's operating authority when it knew that the bus company was conducting its business without liability insurance and that the commission had a mandatory obligation to revoke the company's operating authority.

The Elson court declared that the immunity afforded by section 818.4 ³ applied only to discretionary acts, and that since the commission had been under a mandatory duty to revoke the operating authority of the bus company, it was subject to liability under section 815.6. Section 818.2, which provides that a public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law, was similarly held to apply only to discretionary activities.

Section 818.6, which provides that public entities are not liable for failure to inspect property (other than public property) for health and safety purposes, or for negligent or inadequate inspections, is not subject to the mandatory-discretionary dichotomy set forth in Elson. The grant of immunity provided by the statute is absolute on its face; there is nothing in the language of the section to indicate that it was intended to apply only to discretionary activities. The section presupposes a duty on the part of public entities to inspect private property for health and safety purposes. Indeed, it has been suggested that because of the extensive nature of the inspection duties of public entities, a public entity would be exposed to the risk of liability for virtually all property defects within its jurisdiction if this immunity were not granted. (Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) p. 512.)

Furthermore, appellants' contention that the specific immunity afforded by section 818.6 should be deemed overridden by the mandatory duty provisions of section 815.6, is not consonant with the general statutory scheme. Government Code section 815, subdivision (b) provides that the 'liability of a public entity established by this part . . . is subject to any immunity of the public entity provided by statute.' On the basis of this general rule, it would appear that the entity's immunity for health and safety...