Goddard v. Dep't of Fish & Wildlife

• Decision Date: 23 December 2015
• Docket Number: F069343
• Citation: 196 Cal.Rptr.3d 625,243 Cal.App.4th 350
• Court: California Court of Appeals Court of Appeals
• Parties: Keith GODDARD et al., Plaintiffs and Appellants, v. DEPARTMENT OF FISH AND WILDLIFE, Defendant and Respondent.

243 Cal.App.4th 350

196 Cal.Rptr.3d 625

Keith GODDARD et al., Plaintiffs and Appellants,

v.DEPARTMENT OF FISH AND WILDLIFE, Defendant and Respondent.

F069343

Court of Appeal, Fifth District, California.

Filed December 23, 2015

Law Offices of Carcione, Cattermole, Dolinski, Stucky, Markowitz & Carcione, Joseph W. Carcione, Jr., Joshua S. Markowitz and Joshua J. Henderson, Redwood City, for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney General, Kristin G. Hogue, Assistant Attorney General, and Peter A. Meshot, Deputy Attorney General, for Defendant and Respondent.

OPINION

GOMES, Acting P.J.Leonard Goddard (Goddard) drowned in the Tuolumne River downstream from the remnant of what was once known as the Dennett Dam. His adult children, Keith Goddard and Kristy Monroe (plaintiffs), sued the State of California (State) and several other public entities claiming they were liable for Goddard's death under Government Code section 835¹ because his death was caused by a dangerous condition of public property.

Two State departments, the Department of Fish and Wildlife (DFW) and the Department of Water Resources (DWR), answered the complaint on the State's behalf and subsequently filed motions for summary judgment, asserting they could not be liable under section 835 because they did not own or control the dam remnant. They also argued they were immune from liability under section 831.2 because Goddard's death was caused by a natural condition. The trial court denied DWR's motion, but granted summary judgment to DFW. Plaintiffs appeal from the resulting judgment in DFW's favor. We conclude both that DFW was immune from suit under section 831.2 and that it did not own or control the dam remnant, and therefore affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On October 22, 2009, 56–year–old Goddard drowned in the Tuolumne River allegedly after getting caught in the current over a breach in the remnant of Dennett Dam. On that day, Erasmo Ramirez, who was working in a friend's junkyard on the south side of the Tuolumne River near the 9th Street Bridge and dam remnant, heard someone yelling for help, ran to the junkyard fence, and saw Goddard hanging off some metal in the dam remnant in the middle of the river. Ramirez did not know how Goddard got there. On a photograph of the dam remnant, which depicts lines of wooden poles standing upright on the left and right sides of the river and a small "waterfall" in the middle, Ramirez identified the spot in the middle of the "waterfall" where he saw Goddard.

The History of the Dam

The City of Modesto (the City) originally constructed Dennett Dam (the dam) in 1933 and never transferred its ownership interest to another party or entity. In its application to DWR to construct the dam, the City listed itself as the owner and stated the dam was a timber, collapsible weir, the purpose of which was to increase river depth for boating, swimming and river sports. The City contracted with a company to construct the dam, and paid for its construction. The DWR issued to the City a certificate of approval for the dam in July 1934.

From 1934 to 1962, the City maintained, repaired, and made alterations to the dam, while the DWR issued the City certifications of approval for alterations to the dam and periodically inspected it. In 1936, the City applied to DWR to repair or alter the dam to drive a 65 foot width of steel sheet piling 20 feet into the riverbed, which eventually would go completely across the river. The project was completed and the DWR issued its certificate of approval in December 1937. In August 1947, during a DWR inspection, a DWR inspector met with the City's assistant city engineer at the dam; they observed wood rot and deterioration of the dam that the DWR documented in September 1946. The City engineer had already communicated to DWR that the dam was in unsatisfactory condition. From August to November 1947, there was correspondence between the DWR and the City in which the DWR advised the City the dam was in unsatisfactory condition, and plans for repair would have to be prepared and submitted for approval. The City, however, advised the DWR it had no funds in its annual budget through June 1948 to make repairs.²

From 1948 to 1956, DWR periodically inspected and photographed the dam. DWR and the City communicated about repairs, the City's lack of budgeted funds to plan and effect repairs, the continued deterioration of the dam structure, and ongoing cessation of water impoundment. In December 1953, DWR found on inspection that the dam was still out of service due to the need for extensive repairs or reconstruction; while DWR was considering ruling that the structure was no longer within its jurisdiction, DWR agreed to defer this decision to allow the City an opportunity to investigate the feasibility of reconstruction.

In February 1956, Stanislaus County submitted an application to approve plans to repair or alter the dam, which listed the City as the dam owner and stated that the repair would be a joint project of the County and City. The work contemplated, which would be put out to bid, included moving a fish ladder designed under DFW requirements from the north side of the river to the south side. In May 1959, Stanislaus County provided DWR with the bids to rebuild the dam and advised that the project was "momentarily stopped" because the City had rejected all of them. In 1960 and 1962, DWR inspected the dam to verify it remained out of service.

In October 1962, DWR advised the City: The dam had been carried on its roster of dams within the State's jurisdiction for supervision as to safety pursuant to Division 3 of the Water Code; since 1947, the "structure" had been out of service due to disrepair, and as of 1962, was incapable of storing water safely; the dam was never reconstructed despite several attempts by the City and Stanislaus County to do so; the "structure" no longer qualified as a dam as defined by Division 3 of the Water Code because it was incapable of storing 50 acre-feet or more of water and was less than six feet high; and therefore, the DWR was removing the dam from the roster of dams within its jurisdiction and proposed to take no further action in connection with the dam.³

Once the dam was taken out of DWR's jurisdiction, the City did not need to seek the DSOD's permission to breach the dam remnant; DSOD had no statutory authority to request anything on the dam or require permission from anyone to do anything to it. DWR's file on the dam ended in 1962, was marked for archives, and there was nothing to indicate the dam was ever repaired back to jurisdiction.

In 1995, an Advisory Council and Action Team established by Assembly Bill 3603 issued the San Joaquin River Management Plan (management plan), which was prepared for the State's Resources Agency. The management plan was prepared as a consensus effort by a wide range of federal, State and local agencies and private interests, and included the part of the Tuolumne River through the City where the dam remnant is located. The management plan included a recommended study of the removal of the dam remnant as a possible impediment to adult salmon migration and increased vulnerability to poaching and predation of juvenile salmon. The management plan noted: The footing of the dam still remained on the Tuolumne River; the DFW had made a mid-channel breach to facilitate fish passage at low flow; a fish ladder was installed at one time, but had washed away; and DFW had done "some preliminary scoping" of removal of the remaining structure.

In June 2005, Bulletin 250, entitled "Fish Passage Improvement[,]" was issued as an element of CALFED's Ecosystem Restoration Program, a joint effort of federal and State agencies. The bulletin addressed the problem of fewer salmon and steelhead in the Central Valley, including the Tuolumne River, and the location of the dam remnant. The bulletin related the dam's history. It stated that the City built the dam, a low, concrete structure, in 1933 for recreation; it created a swimming and fishing lake on the river. At one time, there were fish ladders at each end of the dam, and in the 1940's, there was a counting station for salmon. The dam fell into disuse and the concrete was eroding. Later, the top portion of the dam was removed, but the footing remained, potentially creating a passage barrier to juvenile and migrating fish, as well as a hazard to recreational boaters. In the 1970's, DFW made a mid-channel breach to allow fish passage at low flows and installed a fish ladder that later washed away; DFW had investigated removing the structure.⁴

The bulletin further explained that the City had targeted the dam for removal as part of a master plan for development of the Gateway portion of the Tuolumne River Regional Park (TRRP) system. In 2002, DWR saw an opportunity to remove the dam sooner in conjunction with the replacement of the 9th Street Bridge, which sits directly over the dam, and approached the City with this proposal. There was not enough time left in the planning schedule, however, to alter the documents to include the dam removal and stay on schedule for the spring 2002 construction start.

This Lawsuit

In April 2010, plaintiffs filed a government claim for wrongful death and survivor damages for Goddard's drowning, in which they alleged the DFW and DWR, and/or another unnamed State agency, were responsible for the design, construction and maintenance of the dam.

In October 2010, plaintiffs filed their complaint for damages against the State and several other public entities, in which they alleged a single cause of action for government tort liability for alleged dangerous conditions of public property pursuant to sections 815.2, 815.4, 820, 830.8, 835 and 840.2. Specifically, they alleged that a breach in the dam, which had been present since the 1970's, caused a strong current over the dam remnant. They further alleged...