Eben v. State of California

• Decision Date: 09 March 1982
• Citation: 130 Cal.App.3d 416,181 Cal.Rptr. 714
• Parties: Jeffrey L. EBEN, Plaintiff and Respondent, v. STATE of California, Defendant and Appellant. Civ. 5649.
• Court: California Court of Appeals Court of Appeals

Page 714

181 Cal.Rptr. 714

130 Cal.App.3d 416

Jeffrey L. EBEN, Plaintiff and Respondent, v. STATE of California, Defendant and Appellant.

Civ. 5649.

Court of Appeal, Fifth District, California.

March 9, 1982.

As Modified April 1, 1982.

George Deukmejian, Atty. Gen., Michael Franchetti and Willard A. Shank, Asst. Attys. Gen., Seward L. Andrews and Darryl L. Doke, Deputy Attys. Gen., for defendant and appellant.

Canelo, Hansen & Wilson and Ronald W. Hansen, Merced, for plaintiff and respondent.

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

This is an appeal from an order granting a new trial pursuant to Code of Civil Procedure section 904.1 after the jury returned a verdict for the defendant State of California (hereinafter State). The trial court specified juror misconduct as the sole reason for a new trial.

We also review the trial court's intermediate order denying the State's motion for a nonsuit pursuant to Code of Civil Procedure section 906.

The State contends it is immune from liability as a matter of law under Government Code section 831.2, which 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." (Added by Stats.1963, ch. 1681, § 1, p. 3273.) The trial court denied the nonsuit motion because the application of immunity was "a legal question sufficiently important that it should not be resolved at the trial court level."

For the reasons to be explained, we hold the State is immune from liability for plaintiff's injuries. Thus, we need not address the state's contentions regarding a new trial.

THE FACTS

This action resulted from a tragic waterskiing accident at Millerton Lake on October 2, 1977, rendering plaintiff, then 16 years of age, a quadriplegic. Plaintiff at the time was learning how to single ski using a training method which caused him to be propelled toward the granite shore of the lake. He fell, striking a submerged rock which, as he acknowledged, was "at or immediately near the shoreline" of the lake. ¹

The evidence is uncontradicted concerning the natural condition of the area where plaintiff was injured. Various aerial photographs of the "East Fine Gold Creek" area of the lake, the general locale of the accident, depict a granite embankment which constituted the walls of the San Joaquin River Canyon prior to its inundation by the construction of the Friant Dam.

On the day of the accident, the water level of the lake was 493 feet. The water level fluctuated only 3 feet between September 1 and the accident date, although it has a potential fluctuation of 110 feet. ² After the accident, a photograph was taken at a water level three inches higher than on the day of the accident. A red buoy had been placed to mark the area where plaintiff fell and to aid Cartwright Aerial Surveys, the firm which took the photographs, to target the accident site. Plaintiff's counsel had previously identified the general area of the accident site by painting the initials "J.E." on an exposed rock on the bank. The general location of the accident was lakeward in an imaginary line from that rock. When the lake receded, the marker buoy placed by the State was in alignment with the so-called "J.E. rock."

A second aerial photograph was taken a month later when the water level at the lake was approximately eleven and a half feet lower than on the date of the accident. This photograph would have revealed any rock outcropping extending from the shoreline of the lake which a boater or skier would not anticipate and which was close enough to the surface for plaintiff to have hit when he fell. There is no such rock outcropping.

Mr. King, defendant's consulting civil engineer, testified that in addition to the two aerial photographs taken at different water levels, a photogrametric survey of the vicinity of the accident site was prepared by Cartwright at King's direction. Based on his personal inspection of the exposed area, the aerial photograph taken one month after the date of the accident, and the photogrametric survey of the area performed by Cartwright, it was Mr. King's opinion there were no isolated outcroppings away from shore that plaintiff could have hit. No evidence was introduced to rebut Mr. King's testimony.

King's conclusion is supported by plaintiff's testimony that he fell "at or immediately near the shoreline" and the impeachment testimony of the eyewitness Lee Anne Cox Entell, stating that plaintiff fell approximately six feet from shore.

Thus, the overwhelming evidence shows that plaintiff hit a rock which was appended to the shoreline of the lake. ³

The State's practice at Millerton Lake was to buoy submerged rocks that were within five feet of the surface and located in traveled areas where a boater would not anticipate any obstruction. Submerged rocks immediately adjacent to the shoreline of the lake are not buoyed because boaters are expected to use common sense when traveling close to shore.

The accident site is in a remote area of the lake, accessible only by boat. The only man-made improvements in the Fine Gold Bay area are (1) permanent "no ski" buoys located at the mouth of the old San Joaquin River channel, preventing waterskiing upstream from that point, (2) a floating restroom located in the vicinity of the mouth of Fine Gold Creek, and (3) a concessionaire's dock located on the north shore of Fine Gold Bay. All of these improvements are remote from the accident site, and plaintiff presented no evidence connecting any of these improvements with the accident.

The immunity set forth in Government Code section 831.2 is absolute. As stated in the Legislative Committee Comment to section 831.2:

"This section provides an absolute immunity from liability for injuries resulting from a natural condition of any unimproved public property. Thus, for example, under this section and Section 831.4, the State has an absolute immunity from liability for injuries resulting from natural conditions of a state park area where the only improvements are recreational access roads (as defined in Section 831.4) and hiking, riding, fishing and hunting trails.

"This section and Section 831.4 continue and extend an existing policy adopted by the Legislature in former Government Code Section 54002. It is desirable to permit the members of the public to use public property in its natural condition and to provide trails for hikers and riders and roads for campers into the primitive regions of the State. But the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property in its natural condition to assume the risk of injuries arising therefrom as a part of the price to be paid for benefits received."

Although, as Van Alstyne points out, the scope of the immunity is not entirely clear since the statute does not provide a precise standard for determining when, as a result of development activity, public property in its natural state ceases to be "unimproved," it appears that some form of physical change in the condition of the property at the location of the injury is required to preclude application of the immunity. (Van Alstyne, California Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.42 5, p. 256.)

For example, in Rendak v. State of California (1971) 18 Cal.App.3d 286, 95 Cal.Rptr. 665, plaintiff's decedent was killed by a landslide at Brighton Beach State Park in Santa Cruz County. Plaintiff appealed from a judgment of nonsuit based on section 831.2 on the theory the presence of an improved parking area, administrative offices, portable lifeguard towers, restroom facilities and concrete fire rings in the vicinity of the accident site rendered the immunity inapplicable to the entire park. The reviewing court affirmed the judgment of nonsuit by emphasizing the immunity statute specifically extends to "any natural condition of any ... beach." The court pointed out that plaintiff's theory would "demolish the immunity as to an entire park area improved in any way other than by access roads or trails, ground already specifically covered by section 831.4. An entrance gate, a parking area adjoining it, or residential provision for park employees would wholly destroy the immunity." Rendak noted the plaintiff's "position would be entirely sound if the [statute] had been adopted as originally recommended by the Law Revision Commission (Law Rev.Com., 1963 Recommendation Relating to Sovereign Immunity, p. 852). But the legislative modifications clearly demonstrate a contrary view. We, of course, deal with the statute as adopted, and not with the earlier version suggested to and rejected by the Legislature. It follows that improvement of a portion of a park area does not remove the immunity from the unimproved areas." (Id., at pp. 287-289, 95 Cal.Rptr. 665.)

In Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 123 Cal.Rptr. 442 (hrg. den.), the decedent was struck and killed by a motor boat while waterskiing. The appellant argued the shoreline of Shasta Lake was an extremely dangerous and hazardous condition due to the physical configuration of the lake, hundreds of coves, inlets, arms and legs which limited the visibility of motor boat operators and waterskiers throughout the over 365 miles of shoreline. Appellant argued section 831.2 only applied to natural lakes and since Shasta is man-made and not natural, the immunity did not apply. (Id., at pp. 587-588, 123 Cal.Rptr. 442.)

The Osgood court also rejected appellant's contention on the basis of the legislative...