Connelly v. State of California

• Decision Date: 21 January 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Lloyd G. CONNELLY, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents. Civ. 1057.

Page 257

84 Cal.Rptr. 257

3 Cal.App.3d 744

Lloyd G. CONNELLY, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

Civ. 1057.

Court of Appeal, Fifth District, California.

Jan. 21, 1970.

Hearing Denied April 1, 1970.

[3 Cal.App.3d 746] L. Miles Snyder, Sacramento, Reginald M. Watt, Chico, for appellant.

Thomas C. Lynch, Atty. Gen., Willard A. Shank, Asst. Atty. Gen., and Thomas K. McGuire, Deputy Atty. Gen., Sacramento, for respondents.

Thompson & Colegate, Richard C. Field, Riverside, and Henry F. Walker, Los Angeles, as amici curiae on behalf of respondents.

OPINION ON REHEARING

STONE, Presiding Justice.

Appellant owned and operated three marinas, two on the Sacramento County side of the Sacramento River and one on the Yolo County side, located near the confluence of the Sacramento and American Rivers. During the latter part of December 1964 heavy rains in Northern California caused the Sacramento River to rise to unusual heights. For several days prior to December 22, appellant periodically telephoned the State Department of Water Resources in Sacramento to inquire about any anticipated change in the level of the swollen river. Appellant alleges it is the function of this office to supply information about the height and anticipated rise, if any, in the water level of the river, and that people along the river rely upon the information given them by the department.

Appellant last called the department approximately 4 p.m. on December 22, 1964, at which time he was informed the river was expected to rise to a maximum of 24 feet. Relying on this information, appellant set his marina docks so they would float at a maximum river height of 26 feet; within four hours the river rose to 29 feet. It is alleged that by this time it was dark and appellant was unable to do anything to save his docks and apartment structures from extensive damage as the river remained at flood stage of 29 feet for two weeks.

Appellant filed a claim for damages with the State Board of Control, as provided in Government Code section 910 et seq. He alleged the officers, servants and employees of the Department of Water Resources negligently provided him with inaccurate information as to the anticipated rise in the Sacramento River. The claim was denied, and thereafter appellant commenced this action. His first and fourth causes of action are predicated upon alleged negligence in the dissemination of inaccurate river height forecasts. He also pleaded second, third and fifth causes of action alleging negligent release of water from state-operated dams.

Respondents' demurrer to each of the five causes of action alleged in appellant's second amended complaint was sustained without leave to amend, and judgment was entered pursuant thereto.

For reasons hereinafter set forth, we conclude that the demurrer should not have been sustained without leave to amend as to the first and fourth causes of action predicated upon erroneous dissemination of information, but was properly sustained as to the other causes of action which were unsupported by a precedent claim as required by the Government Code.

Although the principal issue in the case is whether respondent State of California and its respondent employees are clothed with governmental immunity, we are confronted with the threshold question whether appellant has stated a cause of action under the general laws of negligence. First, respondents assert that a recipient of a weather forecast cannot, as a reasonable person, rely upon its accurateness because it is common knowledge that weather forecasts of future conditions are not statements of fact. It is understood that such predictions are subject to the vagaries of nature and that the caprice of the elements occasionally cause a weatherman's predictions to go awry.

We cannot argue with the reason or the logic of this proposition, but it is not applicable to the pleadings before us. Appellant does not rest his allegations of negligence upon the mere fact the forecast turned out to be wrong; he has pleaded specific acts of negligence in the gathering and evaluating of known facts. In the fourth cause of action he alleges that it was the duty of named defendants, employees of the State of California, to manage, control or operate the Department of Water Resources Office of the State of California in Sacramento, whose duty it is 'to take reasonable efforts to stay informed of all sources of the increase of the water level, and to stay currently informed of the river height, and to use reasonable care in estimating the potential water height, and to disseminate accurate information about the river.' Again, appellant alleges that 'he is informed and believes and thereon alleges that there was a breakdown of some sort in the operation of the office and its river depth measuring stations, including the possibility that there was a serious miscalculation by one of the employees in the office and those in charge of the office negligently failed to detect this miscalculation. * * * that each of the defendants above named had actual knowledge of the breakdown or had they exercised due care, should have had knowledge of this breakdown in time to prevent the dissemination of inaccurate information as herein alleged.'

Respondents' other argument in regard to pleading negligence is that forecasts of this character are a public service for the benefit of the public generally and therefore appellant cannot claim a duty owed him and, accordingly, he cannot claim a breach of a duty. The facts alleged, however, negate this argument, as appellant pleaded not only that businessmen along the river use and rely on flood forecast information but, additionally, that on December 22, 1964, he 'telephoned the office to determine the maximum height to which the river would rise; plaintiff identified himself as a businessman with a great deal at stake in a proper estimate in the river height.' He further alleged that in reliance upon this information he secured his marina docks so they would float at a water level two feet above the maximum forecast by appellants.

Thus appellant has pleaded facts which take him out of the realm of an amorphous public receiving general information, and placed himself in the position of a businessman by identifying himself as such and making personal inquiry and relying upon the information given him. It may well be that if given the opportunity appellant will be unable to prove any of the facts alleged, to the satisfaction of a court, but on this appeal from a judgment entered pursuant to demurrer to the complaint sustained without leave to amend, we accept the allegations of the complaint as factually correct. (Stigall v. City of Taft, 58 Cal.2d 565, 567, 25 Cal.Rptr. 441, 375 P.2d 289.) Moreover, it must be owned that the pleadings of duty and reliance may well be subject to special demurrer, but under the well established rules of pleading, a demurrer is not properly sustained without leave to amend upon the ground of failure to state a cause of action in negligence, unless it is clear that the plaintiff cannot amend his complaint to state a cause of action. (Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358; Katenkamp v. Union Realty Co., 6 Cal.2d 765, 769, 59 P.2d 473; 2 Witkin, Cal.Procedure, Pleading, § 505, p. 1496.) The record, here, does not reflect that appellant cannot amend his complaint to allege facts sufficient to state a cause of action in negligence.

We turn to the question of governmental immunity. Appellant contends he has stated a cause of action under Government Code section 820, which provides in part that:

'(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.'

Respondents counter that the activities upon which the complaint is predicated involve the exercise of discretion and are within the governmental immunity provided by section 820.2, which reads:

'Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.'

The Legislative Committee Comment tells us this section restates the pre-existing California law. (Note to Gov.Code § 820.2, West's Annotated Cal.Codes.) However, prior to the enactment of the 1963 California Tort Claims Act, activities deemed discretionary and clothed with immunity are not clearly defined. In fact, the decisions filed subsequent to the Act, up to Johnson v. California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, follow no definitive criterion and rest largely upon facts peculiar to the particular case. Generally speaking, courts have used two approaches to the question of immunity, one of which finds immunity where to impose liability would create the 'danger that public employees will be insufficiently zealous in their official duties,' a theory elaborated by Judge Learned Hand. The other purports to distinguish a discretionary act within the ambit of section 820.2 from an excluded ministerial act, by a refined, sometimes subtle if not tenuous, analysis of the characteristics of the performance.

The Supreme Court, in Johnson v. California, supra, took a fresh approach to the question by rejecting the Judge Hand postulate that public officials will be insufficiently zealous unless immunity attaches to their discretionary acts. The court said it was motivated largely by the fact the 1963 Tort Claims Act, Government Code section 825.6, requires an employee to 'indemnify the public entity' only in instances where the employee acted outside the scope of his employment or 'acted with actual fraud, corruption, or malice.' (P. 791, 73 Cal.Rptr. p. 246, 447 P.2d p. 358.) The...