Fuller v. State of California

• Decision Date: 28 May 1975
• Citation: 125 Cal.Rptr. 586,51 Cal.App.3d 926
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen W. FULLER, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents. Civ. 33932.

Page 586

125 Cal.Rptr. 586

51 Cal.App.3d 926

Stephen W. FULLER, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

Civ. 33932.

Court of Appeal, First District, Division 2, California.

May 28, 1975.

As Modified on Denial of Rehearing June 27, 1975.

Jack Miller, Richard L. Katz and Robert A. Harlem, Inc., by Richard L. Katz and John Russell, San Francisco, for plaintiff and appellant

Evelle J. Younger, Atty. Gen., Wayman M. Robertson, Jr., Deputy Atty. Gen., San Francisco, for defendant and respondent State of Cal.

Wilbur J. Russ, Russ, McConnell & Tarkington, San Francisco, for defendant and respondent City of Santa Cruz.

BRAY, Associate Justice. ^*

Plaintiff appeals from a judgment of the Santa Cruz County Superior Court, after jury verdict, in favor of defendants.

QUESTIONS PRESENTED

1) Section 831.2 of the Government Code providing immunity for injury caused by a natural condition of unimproved public property applies.

2) Whether plaintiff's injury was caused by a dangerous condition of public property was a jury question.

3) Instruction on assumption of risk was proper.

4) Instruction on contributory negligence was proper.

5) Instruction on prior accidents was proper.

6) Evidence of subsequent accidents not admissible.

7) Plaintiff's proposed instructions were properly refused.

a) Instruction 12 (care required of minor).

b) BAJI 3.38 (modified) (care required for safety of minor).

c) Instruction 15 (contributory negligence).

d) Instructions 6 and 7 (definitions of 'dangerous condition').

e) Instruction 4 (condition of adjacent property).

f) Instruction BAJI 3.52 (wilful misconduct).

g) Instruction 11 (the California State Park and Recreation Commission's Statement of Policy).

h) Instruction 8 (party voluntarily undertaking to perform a task).

i) Instruction 9 (ownership or control of the property).

j) Instruction 10 (ownership or control of the property).

k) Instruction on duty to warn.

8) No error in giving certain instructions.

a) City's instruction 17 (public employee not liable for acts of discretion).

b) City's instruction 14 (based on Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508).

c) City's instruction 10 (unauthorized acts of an employee).

9) No misconduct by the trial judge.

10) Court's denial of motion to proceed in forma pauperis cannot be reviewed on appeal.

RECORD

A Complaint for Personal Injuries was filed by Stephen W. Fuller, a minor, by and through his Guardian ad Litem, John W. Fuller, against the State of California (hereinafter 'State') and City of Santa Cruz (hereinafter 'City') as defendants charging said defendants with carelessness and negligence in connection with the injuries received by Stephen in diving into the Pacific Ocean from a cliff in Twin Lakes Beach State Park. The defendants answered separately denying responsibility and setting up the defenses of assumption of risk, contributory negligence, immunity provided by Government Code section 831.2 and various other government code sections. Plaintiff's motion for leave to proceed in forma pauperis was denied. Defendant City's motion for summary judgment was denied. After trial, the jury found a verdict in favor of defendants and judgment was entered thereon. Plaintiff appeals.

FACTS

Stephen, then 17 years old, and 3 friends, Gary Woodard, Joe Semas, and Steve Alldrin, came to Santa Cruz from Stockton. The next day, July 4, they swam at both of the beaches next to San Lorenzo Point (hereinafter 'the Point'). The City beach lies to the west of the Point, the State beach to its east. The Point and the State beach are part of Twin Lakes State Park. The boys went from one beach to the other through the 'blow hole' or tunnel under the Point. The Point is a narrow, rocky finger of land extending into the ocean and rising to a height of 15--20 feet above the adjacent beaches. Access to its slope can be had from the City side. There are no park facilities of any kind on the Point. From a walk or ledge lying part way up the Point on its City side the boys made the jumps and dives hereinafter described. The lifeguards on the State beach could not see this spot as the top of the Point was higher and blocked the view. Nor if a lifeguard was on the top of the Point would have have been able to see the dives.

While his friends were body surfing off the City beach Stephen climbed up the Point and sat at a point estimated by the boys as being 8--10 feet, 10--12 feet or 10--15 feet above the water. This is the place from which the jumping or diving took place. The boys estimated the depth of this water, absent a wave, variously as up to the bottom of Stephen's chest, middle of his chest, or 3--4 feet. A City lifeguard testified that it was 1--3 feet.

Stephen jumped into the water and then returned to the same spot. Woodard joined Stephen and the 2 boys talker for 10 or 15 minutes about diving but neither wanted to dive first. Neither had ever seen anyone dive from the Point. Woodard told Stephen that it would be better to dive on the wave rather than between waves. Both Woodard and Stephen testified that the wave would add about two feet to the depth of the water. Woodard told Steve to dive because a wave was coming. Stephen made a flat dive. After Stephen surfaced and stood in the water he informed Woodard there was enough water to dive into 'with the wave.'

On Stephen's return to the spot, Woodard dove on a wave. He scraped his foot on the bottom. Woodard said that he dove as flat as he could because 'you had to project over the ledge right there.' Both boys testified that at the time they did not believe it was dangerous to dive from the Point. Prior to diving a second time Woodard told Stephen he had scraped his foot on his dive. He asked if Stephen had done so too. Stephen said that he had not even touched bottom. They then talked about who should now dive first. Alldrin then came to the spot where the other two were. He didn't want them to dive but the others said that it was okay because they had made one dive already. Woodard told Stephen to dive first as a wave was coming in but Stephen said he didn't want to dive right then. So Woodard dove. When he surfaced he called to Stephen to hurry up and dive because a wave was still and it was still deep. Stephen saw Woodard standing and bobbing in the water and dove. He felt a snap in his neck and there was a dark flash in front of his eyes. Since there were no rocks or other objects under the water at the point of the dive, it is apparent that Stephen hit the bottom.

Diving and jumping from the Point had been a common practice of young persons for years prior to this accident, which practice was well known to State and City lifeguards. State and City employees also knew of injuries suffered by other persons as a result of diving or jumping from the Point and considered diving therefrom a dangerous activity.

Construction of the Santa Cruz yacht harbor and jetty in 1962 had caused a steady buildup of sand on the beach and around the Point and a corresponding decrease in water depth. Prior to the accident the public entities had placed on the State beach five portable lifeguard towers, restroom facilities and concrete fire rings. There were well defined paths and steps on the Point. The beach area was heavily patronized. City lifeguards had been instructed to warn persons whom they observed at the Point that it was hazardous to dive therefrom. On occasion City lifeguards had been stationed on the Point to discourage the public from coming there. State and City lifeguards and their supervisors had met concerning the problem of people diving off the Point. Warning signs discouraging diving had been erected on and around the Point in previous years but were not replaced when no longer there. There were no warning signs at the time of Stephen's injuries.

1) Section 831.2 of Government Code.

The trial court instructed the jury on the immunity of section 831.2 ¹ leaving to it to determine whether the 'condition' alleged to have caused the injury was 'natural' and whether the property on which the condition existed was 'unimproved' public property. Plaintiff contends that the trial court erred in so instructing the jury and in failing to rule that as a matter of law said section did not apply to the circumstances of the case. Plaintiff based this contention primarily on the fact that in 1962 jetty and yacht harbor construction by the United States Army Corps of Engineers had been performed some 3,000 feet down the coast from the Point, and in 1959 rip rock work had been done on the banks of the San Lorenzo River somewhere upstream, by whom does not appear, indirectly causing a sand buildup around San Lorenzo Point resulting in shallower water in 1969 (the year of the accident) than in the 1950s prior to said work. Plaintiff also contended that the area had been further developed by the placement of restrooms, fire rings, lifeguard towers and signs along the beach extending near the Point.

Section 831.2 presents two fact questions, whether the 'condition' at the Point was 'natural' and whether the property there was 'unimproved' public property. (Obviously it was public property.)

The contention that the location on the beach of the portable lifeguard towers, restroom facilities, and concrete fire rings make the area Improved public property rather than Unimproved in the application of 831.2 is well answered in Rendak v. State of California (1971) 18 Cal.App.3d 286, 95 Cal.Rptr. 665 (hrg. den. September 2, 1971). There it was contended that the construction on the beach of restrooms and some 'fire rings,' circles of concrete set in the sand for building of fires, excluded from the application of section 831.2 that area of the beach and particularly the area where a portion of a cliff slipped into the sea killing the plaintiff. The court held that such construction did not change the 'natural condition' of the beach or...