Davis v. Cordova Recreation & Park Dist.

• Decision Date: 06 April 1972
• Citation: 101 Cal.Rptr. 358,24 Cal.App.3d 789
• Court: California Court of Appeals Court of Appeals
• Parties: Larry E. DAVIS, Sr. and Diana Jean Davis, Plaintiffs and Appellants, v. CORDOVA RECREATION AND PARK DISTRICT, Defendant and Respondent. Civ. 12636.

Page 358

101 Cal.Rptr. 358

24 Cal.App.3d 789

Larry E. DAVIS, Sr. and Diana Jean Davis, Plaintiffs and Appellants, v. CORDOVA RECREATION AND PARK DISTRICT, Defendant and Respondent.

Civ. 12636.

Court of Appeal, Third District, California.

April 6, 1972.

Zane Vorhes, Sacramento, for plaintiffs and appellants.

Rust, Hoffman & Mills, Sacramento, for defendant and respondent.

RICHARDSON, Presiding Justice.

Plaintiffs sued defendant Cordova Recreation and Park District for damages following the death of their four-year-old son, Larry E. Davis, Jr. Defendant's answer did not allege the design immunity defense. After denial by the trial court of motions for nonsuit and during the defense presentation, the court announced that it found the defense of design immunity established. It then directed judgment for defendant, excused the jury and, over objection, permitted the amendment of defendant's answer to include the defense of design immunity to conform with proof. The court then signed findings of fact and conclusions of law wherein it found that before the date of death the design for construction of a certain lake or pond designated as 'Cordova Lane Park Lagoon' was approved by the board of directors of defendant and that the design was prepared by an architect in conformity with standards previously approved by the board; and as a conclusion of law, the court determined that 'as a matter of law . . . there was substantial evidence upon the basis of which the Board of Directors of CORDOVA RECREATION AND PARK DISTRICT acted reasonably in the approval of the plan and design of the CORDOVA LANE PARK LAGOON.'

Plaintiffs contend, first, that the trial court erred in granting defendant's motion to amend its answer permitting assertion of the design immunity defense; second, that plaintiffs did not waive their right to object to such amendment; and third, that the evidence did not establish the defense of design immunity.

Facts

Larry E. Davis, Jr., a four-year-old boy, lived with his parents, plaintiffs herein, and a five-year-old sister, in the Rancho Cordova suburb of Sacramento. The Davis residence was located approximately 150 yards from Cordova Lane Park, which was owned and maintained by defendant for the use and enjoyment of the public. On many occasions the Davis family had used the park, plaintiff-father and the Davis children frequently playing kickball there. Centrally located in the park is a body of water variously described as a pond, lagoon, or lake, irregular in shape and bordered on the north, west and south by lawn areas The lake's perimeter on its northwest and south sides is marked by a flat cement walkway, level with the lawn area, and elevated a few inches above the water. Around the entire perimeter of the lake the surrounding lawn slopes directly toward the water.

The neighborhood in which the park is situate is inhabited largely by young people and is characterized by the presence of many small children who frequent the park and use its facilities. The evidence established that the purpose of the lake was severalfold: for esthetic purposes, to furnish drainage during the rainy season and to 'provide an experience for young children to have the opportunity to fish.'

In 1961 defendant adopted a master plan for recreation and parks. Pursuant thereto, an architect was engaged to prepare the detailed plans and specifications for Cordova Lane Park, which in turn were approved by defendant's board of directors. One critical feature of the pond design as approved was a certain 'fish hole' or sump to be constructed near the middle of the pond. The purpose of this fish hole was to provide a deeper sanctuary for fish which, otherwise lacking oxygen, would be unable to survive the temperatures of Sacramento summers in the shallow water that characterized the rest of the pond. The dimensions of the fish hole were to be 27 1/2 feet in diameter at the bottom. During construction of the facility, however, and because the area park site was smaller than originally conceived, the dimensions of the hole in question were changed so that its size was reduced. The resultant dimensions were 12 feet in diameter at the top, 6 to 8 feet in diameter at the bottom and 5 1/2 to 6 feet in depth. This alteration was approved during construction by both the defendant's administrator and a supervisor of the defendant. The net effect of this structural change was to increase substantially the steepness of the sloping sidewalls of the hole from 45 degrees as designed to 65 or 80 degrees.

In the late afternoon of July 26, 1968, and while plaintiff-parents were packing preparatory to departure on a vacation trip, young Larry and his sister requested and received permission to play with a neighbor's children who lived two houses closer to Cordova Lane Park. Within 15 to 20 minutes plaintiffs' daughter returned home and excitedly told her parents that 'Larry is hiding in the water,' referring to the pond in the park. The father raced to the park, could not see his son and commenced wading in the water seeking him. At a point roughly in the center of the lake he 'fell' into the fish hole, which he estimated to be 5 feet deep, and therein located his son. The boy was rushed to a hospital after attempted emergency resuscitation but died within 24 hours from irreversible brain damage caused by lack of oxygen.

Amendment to Answer

Plaintiffs' complaint alleged in two causes of action: first, negligence in knowingly causing, maintaining and failing to remedy a dangerous condition; and secondly, negligence in maintaining a dangerous condition likely to trap and harm small children. Plaintiffs assert prejudice and surprise by reason of the permission given to defendant to amend its answer to incorporate the defense of design immunity; further, that they did not waive the right to object to the amendment; and finally, that the evidence supporting defendant's immunity by virtue of an approved design lacked substantiality.

The only affirmative defense raised in the answer was contributory negligence. The pretrial conference order did not recite the specific issues. After the opening statement of plaintiffs, defendant's motion for nonsuit was denied. On the second day of trial, in the absence of the jury and after testimony of expert witnesses for both sides on the issue of the design immunity defense, a renewed motion for nonsuit again was denied. The jury was reconvened and plaintiffs' expert again testified. After plaintiffs rested, defendant's motion for a directed verdict was denied, as was a third motion for nonsuit. Defendant then presented before the jury its expert, and at the conclusion of his testimony the court held that the defense of design immunity pursuant to Government Code section 830.6 had been established and 'direct(ed) that the Defendant have judgment against the Plaintiffs,' that defendant prepare findings, that the jury be excused, and that defendant have 'permission to amend its answer to conform with proof.'

Plaintiffs did not object at the argument of the various motions for nonsuit and directed verdict as to the timeliness of asserting the design immunity defense. A review of the record herein indicates that plaintiffs had anticipated the design immunity defense, and from opening statement on were directing their case in a manner to defeat it by exploiting the variance between the facility as originally conceived, designed and approved and that which was ultimately constructed. As was said in Duncan v. Sunset Agricultural Minerals (1969) 273 Cal.App.2d 489, 494, 78 Cal,.rptr. 339, 343: 'It has long been settled law that where (1) a case is tried on the merits, (2) the issues are thoroughly explored during the course of the trial and (3) the theory of the trial is well known to court and counsel, the fact that the issues were not pleaded does not preclude an adjudication of such litigated issues and a review thereof on appeal.' (See also Pacific Finance Corp. v. Foust (1955) 44 Cal.2d 853, 858, 285 P.2d 632; Hollypark Realty Co. v. MacLoane (1958) 163 Cal.App.2d 549, 552, 329 P.2d 532.) Furthermore, 'It is a well-known policy of the law to permit amendments of pleadings liberally in order that litigation may be tried on its merits.' (Cardenas v. Ellston (1968) 259 Cal.App.2d 232, 238, 66 Cal.Rptr. 128, 131.)

We find no merit in the first two contentions of plaintiffs and find the trial court's action proper in considering the defense of design immunity notwithstanding the failure of defendant's answer initially to assert it. We address ourselves to the final and, in our view, most critical question in the case before us.

Did the Evidence Establish the Defense of Design Immunity?

We have said recently with reference to the defense of design immunity that 'The defense held out by section 830.6 rests upon a combination of three statutory elements: first, a causal relationship between the plan or design and the accident; second, the design's approval in advance of construction by a legislative body or officer exercising discretionary authority; third, a court finding of substantial evidence of the design's reasonableness.' (Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 51, 79 Cal.Rptr. 33, 37.) It is well established that defendant has the burden of pleading and proving the defense of design immunity and each of the essential elements of it. (Hilts v. County of Solano (1968) 265 Cal.App.2d 161, 175, 71 Cal.Rptr. 275; Johnston v. County of Yolo, supra, 274 Cal.App.2d at p. 50, 79 Cal.Rptr. 33.) We turn immediately to the third essential component, a finding that substantial evidence supports the reasonableness of the design. In doing so, we pass an intermediate and serious question of whether the two employees of defendant, namely, Mr. Hagan, the administrator of defendant, and Mr. Fente, a supervisor of defendant, were vested with the discretionary authority to change or alter the plans or...