County of Sacramento v. Superior Court

• Decision Date: 06 February 1979
• Citation: 152 Cal.Rptr. 391,89 Cal.App.3d 215
• Court: California Court of Appeals Court of Appeals
• Parties: The COUNTY OF SACRAMENTO, Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent, George S. KUHN and Floy J. Kuhn, Real Parties in Interest. Civ. 17993.

Page 391

152 Cal.Rptr. 391

89 Cal.App.3d 215

The COUNTY OF SACRAMENTO, Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent George S. KUHN and Floy J. Kuhn, Real Parties in Interest.

Civ. 17993.

Court of Appeal, Third District, California.

Feb. 6, 1979.

Rehearing Denied March 2, 1979.

Hearing Denied April 12, 1979.

Memering, DeMers & Ford, Claudia J. Robinson and Henry W. Crowle, Sacramento, for petitioner.

No appearance for respondent.

Hoberg, Finger, Brown, Carlson, Cox & Molligan and Richard H. Carlson, San Francisco, for real parties in interest.

PARAS, Associate Justice.

The County of Sacramento (County) has filed this petition for writ of mandate to compel the respondent superior court to grant its motion for summary judgment (and to vacate its order denying such motion) in the underlying action for wrongful death of Michael Kuhn. Michael died by drowning in the American River on June 15, 1974, and his parents filed the action against the County, the City of Sacramento, and the State of California (State).

The real parties in interest filed no counterdeclarations in connection with the summary judgment motion; they opposed it successfully by references to depositions and by asserting the insufficiency of the moving papers to eliminate all triable issues of fact. Our review of the facts and the law leaves us in disagreement with the trial court, and we shall decree accordingly.

I

We here set forth the facts as established both in support of and in opposition to the motion.

Michael was "floating" down the American River, a natural tributary of the Sacramento River, in a manner typical of that very popular recreational activity during the summer months. A large "snag," consisting of uprooted trees washed away from some unknown part of the upstream shore by erosive action of the flowing water, had become lodged in the approximate center of the flow; the trees were held together by a "clump of dirt and mud and roots;" the snag created rapids through the area. ¹ Michael's floating device somehow became impaled upon the snag; he was dislodged and trapped underwater by the snag and current.

The County owned 40 acres of real property known as Paradise Beach, a public park, adjacent to the site of the tragedy. This acreage did not at any point reach the actual waterway. The remaining adjoining land was owned by the State, as was the land over which the water flowed (Civ.Code, § 670; People ex rel. Baker v. Mack (1971) 19 Cal.App.3d 1040, 1050, 97 Cal.Rptr. 448). The flow of water in this area of the river varies in accordance with controls operated upstream at the Folsom and Nimbus Dam site by the Federal Bureau of Reclamation. Rangers of the Sacramento County Parks and Recreation Department routinely patrolled the Paradise Beach area, their primary duties consisting of litter control and control of the conduct and activities of persons on the County property. They were neither directed nor expected to inspect the river itself to determine its safety for recreational purposes. However when in the course of their duties they observed any dangerous condition on or about the river, they normally reported it to their superiors.

On June 13, 1974, two days before the drowning, Ranger James Terry observed the snag in question and reported it to his employer. On June 25, 1974, after the drowning, Don H. Nance, Director of the Parks and Recreation Department, determined to remove the snag. He contacted the Corps of Engineers for this purpose, and on June 28th the snag was removed by the joint effort of the corps and the County.

II

In support of its summary judgment motion (and again on appeal), the County urged two defenses; first, immunity under Government Code section 831.2; ² second, a lack of ownership or control over the site of the drowning (§ 830, subd. (c)). We have concluded that the claimed immunity exists as a matter of law. We need not address the second issue.

Section 831.2 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 lake, stream, bay, river, or beach."

The County is a public entity within the meaning of section 831.2 (§ 811.2). The American River is a stream or river, and both as to its bed and its flow, is "unimproved public property," within the meaning of section 831.2. It remains only to consider whether the death (injury § 810.8) was "caused by a natural condition" of such property. It was. The "condition" which caused the death was a combination of the flow of water and the snag. The latter, by the undisputed evidence, consisted of trees washed out of the upstream shoreline by the waterflow; it became lodged downstream by the streambed's own obstructions. These were all conditions of nature. There was nothing manmade or artificial about the snag or the river or the flow of water. These all were conditions of nature, and hence constituted collectively a "natural condition" within the meaning of section 831.2.

Real parties in interest argue that because at the dam site some 15 miles upstream the flow of water may be and is increased or decreased by man, conditions on and in the American River, including the condition in question here, are not natural. This contention is not tenable. Even if we were persuaded to hold that the flow control somehow has converted the...