Delta Farms Reclamation Dist. v. Superior Court, S.F. 24385

• Court: United States State Supreme Court (California)
• Writing for the Court: KAUS; BIRD; RICHARDSON
• Citation: 190 Cal.Rptr. 494,33 Cal.3d 699,660 P.2d 1168
• Parties: , 660 P.2d 1168 DELTA FARMS RECLAMATION DISTRICT NO. 2028, Petitioner, v. The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; Mabel FERNANDEZ et al., Real Parties in Interest.
• Docket Number: S.F. 24385
• Decision Date: 04 April 1983

Page 494

190 Cal.Rptr. 494 33 Cal.3d 699, 660 P.2d 1168 DELTA FARMS RECLAMATION DISTRICT NO. 2028, Petitioner,
v.
The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent;
Mabel FERNANDEZ et al., Real Parties in Interest. S.F. 24385. Supreme Court of California,
In Bank. April 4, 1983.
Rehearing Denied May 26, 1983.

Page 495

[33 Cal.3d 701] [660 P.2d 1169] Memering & DeMers and Henry W. Crowle, for petitioner.

George Deukmejian, Atty. Gen., Michael Franchetti, Chief Deputy Atty. Gen., Willard Shank, Chief Asst. Atty. Gen., Marvin Goldsmith, Asst. Atty. Gen., James R. Schwartz, Dennis G. Fry and Edward P. Garson, Deputy Attys. Gen., as amicus curiae on behalf of petitioner.

No appearance for respondent.

Lewis, Lewis & Less, Lawrence James Less and Craig R. Blackstone, San Francisco, for real parties in interest.

Peter J. Bassing and Sheeks, Oswald & Bassing, San Rafael, as amici curiae on behalf of real parties in interest.

[33 Cal.3d 702] KAUS, Justice.

Petitioner Delta Farms Reclamation District No. 2028 (Delta) seeks mandate directing respondent superior court to sustain Delta's general demurrer to real parties' second amended complaint seeking damages for the wrongful death of two 15-year-old girls who drowned in a canal owned by the district and for personal injuries, including emotional distress. ¹ Delta contends that (1) it is immune from liability for injuries resulting from the use of its canal under the provisions of Government Code section 831.8, (2) by virtue of Civil Code section 846, it was under no duty to protect against injuries or death from the recreational use of its property; (3) the cause of action for negligent infliction of emotional distress is barred by Government Code section 815, and (4) the complaint fails to state a cause of action for liability for the dangerous condition of public property under Government Code section 835.

"A demurrer admits all material and issuable facts properly pleaded." (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.) We set out the facts accordingly.

On June 23 or 24, 1979, Paquita Hill and Cheryl Fernandez, both 15 years of age, drowned on district property in a waterway known as Middle River. The waterway was in a dangerous condition in that it was only a foot deep for five feet from the shore, at which point, however, it plunged to a depth of sixty feet. The girls stepped off the hidden drop while wading and drowned. The district knew or should have known of the dangerous condition. It also knew that visitors frequented the area of the drownings--it had posted a sign limiting the hours of parking nearby--and knew or should have known that visitors were likely to wade or swim there. Nevertheless, it failed to warn real parties of the latent dangers of the canal. Real parties, Mary Alice Caston (Hill's mother), Mabel Fernandez (Fernandez' mother) and Karen Denise Edwards (Fernandez' sister), witnessed the drownings and suffered emotional distress; in addition, Edwards, who was pregnant at the time, suffered a miscarriage.

I

The district contends it is immune from liability under the provisions of subdivision (b) of Government Code section 831.8. Subdivision (a) of that section provides for immunity under specified circumstances for any public entity for injuries caused by the condition of a reservoir; nothing is said about canals. Subdivision (b), by contrast, does confer immunity for injuries suffered by persons[33 Cal.3d 703] using canals, conduits or drains; the beneficiaries of the immunity are, however, only irrigation districts, the state and

Page 496

[660 P.2d 1170] their employees. ² It is not contended that Middle River is a reservoir.

Petitioner is a reclamation district governed by the provisions of Water Code section 50000 et seq. Irrigation districts are separately classified and are governed by the provisions of Water Code section 20500 et seq. Petitioner claims that since it is authorized to acquire and maintain irrigation systems (Wat.Code, § 50910), it may invoke the immunity provisions of Government Code section 831.8, subdivision (b), regarding irrigation district canals. We do not agree. Since irrigation districts and reclamation districts have long been separately classified and regulated, we believe that the Legislature would have mentioned reclamation districts if it had intended the immunity provisions of subdivision (b) to apply to them.

If, as is contended, it had been the Legislature's intention to provide what Professor Van Alstyne calls "canal immunity" (Van Alstyne, Cal.Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.46, p. 263) to public entities other than the state or irrigation districts, it could easily have said so. One simple way of expressing such an intent would have been to insert the words "or canals, conduits and drains used for the distribution of water" after the word [33 Cal.3d 704] "reservoir" in subdivision (a) of section 831.8. The fact that the Legislature devoted a special subdivision to canal immunity and singled out the state and irrigation districts as the protected entities, proves conclusively that the words--"neither an irrigation district ... nor the State ..."--of subdivision (b) must not be interpreted to mean "any public entity which owns or operates a canal."

II

The district also claims the protection of Civil Code section 846 (section 846) which limits the duty of care owed by "an owner of any estate or any other interest in real property" to persons using the property for designated recreational purposes. ³

Page 497

[660 P.2d 1171] Section 846 itself, which only speaks of "owners," offers little guidance on the question whether the Legislature meant to include public entities in that term. ⁴ On the other hand the legislative history of section 846, when considered [33 Cal.3d 705] in conjunction with other matters then before the Legislature, leaves no doubt that public entity liability was then very much on the mind of the Legislature and that, had it intended to bring such entities under the umbrella of section 846, it would have said so.

The legislative history of section 846 (Stats.1963, ch. 1759, § 1) shows that it was considered by the same committees of the Assembly and the Senate which, concurrently, readied the California Torts Claims Act (the Act) (Stats.1963, ch. 1681) for consideration by the full Legislature. ⁵ Although

Page 498

[660 P.2d 1172] section 846 became law two days after the Act, on occasion it led the latter on their joint journey through the two houses--for example, the Senate finished its work on section 846 on June 14, while it did not concur in Assembly amendments to the Act until five days later. We mention these legislative minutiae for a reason: the simultaneous passage of the two pieces of legislation through the same two committees and, later, both houses of the Legislature, makes it particularly appropriate that the two statutes--which, to some extent, deal with the same problem--be construed in such a way that they produce harmony rather than dissonance. (Isobe v. Unemployment Ins. Appeals Bd. (1974) 12 Cal.3d 584, 590-591, 116 Cal.Rptr. 376, 526 P.2d 528.) To be specific: both statutes deal with liability to recreational users of property--section 846 does so exclusively, the Act in part. The rule of construction just adverted to commands us to avoid any interpretation of section 846 which is at odds with the provisions of the Act as far as injuries to recreational users of public property are concerned.

[33 Cal.3d 706] Actually an unbiased reading of section 846 and the relevant sections of the Act--principally sections 831.2, 831.4, 831.8 and 835 of the Government Code ⁶--gives little reason to suppose that section 846 was ever intended to upset the carefully structured, comprehensive, statutory framework of the Act by including public entities among the landowners whom it protects: First, section 846 preserves the then prevailing distinction between trespassers, licensees and invitees--concepts which are foreign to the Act (Gibson v. County of Mendocino (1940) 16 Cal.2d 80, 84-85, 105 P.2d 105; see also O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 749, fn. 12, 51 Cal.Rptr. 534, 414 P.2d 830; Acosta v. County of Los Angeles (1961) 56 Cal.2d 208, 212-213, 14 Cal.Rptr. 433, 363 P.2d 473; Gallipo v. City of Long Beach (1958) 164 Cal.App.2d 70, 76, 330 P.2d 91; Van Alstyne, Cal.Government Tort Liability (Cont.Ed.Bar 1964) § 6.22, p. 205). Second, as we shall presently show, application of section 846 to public entities

Page 499

would eviscerate large portions of the Act. [660 P.2d 1173] Third, application of section 846 to public entities would lead to some patently absurd results. One example will suffice at this point: since section 846 is by no means limited to land in its natural condition--it specifically mentions "structures"--it obviously encompasses[33 Cal.3d 707] improved streets. So, of course, does the Act. (§ 830 et seq.) Therefore, an improved but dangerously rutted street would expose a city to liability to a bicyclist who commutes to work, even though it was under "no duty" to keep the same street safe for the recreational rider right behind him. ⁷ We doubt that there is a single city attorney in this state who would submit such an absurdity to a court of law.

Thus, although it should have been clear from the outset that the Act and section 846 dealt with different sets of potential defendants--the former with public entities and officers, the latter with private landowners--the Courts of Appeal temporarily backed themselves into a holding that section 846 did benefit public as well as private landowners. The error is easily traceable to English v. Marin Mun. Water Dist. (1977) 66 Cal.App.3d 725, 136 Cal.Rptr. 224 where the court--without stopping to consider that one of the two defendants was a public entity--applied section 846 against a plaintiff who,...