Gonzales v. City of San Diego

• Decision Date: 20 April 1982
• Citation: 182 Cal.Rptr. 73,130 Cal.App.3d 882
• Parties: Steve Anthony GONZALES, et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, et al., Defendants and Respondents. Civ. 22859.
• Court: California Court of Appeals Court of Appeals

Page 73

182 Cal.Rptr. 73

130 Cal.App.3d 882

Steve Anthony GONZALES, et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO, et al., Defendants and Respondents.

Civ. 22859.

Court of Appeal, Fourth District, Division 1, California.

April 20, 1982.

Hearing Denied June 28, 1982.

Victor Jacobovitz, Hollywood, and Irwin Gostin, San Diego, for plaintiffs and appellants.

John W. Witt, City Atty., Ronald L. Johnson, Chief Deputy City Atty., and John W. Wood, Deputy City Atty., for defendants and respondents.

WORK, Associate Justice.

Steven and April Gonzales appeal a judgment of dismissal following the sustaining of City of San Diego's (City) demurrer without leave to amend to their second amended complaint for the wrongful drowning death of their mother. We hold the facts alleged state a cause of action under Government Code section 835 ¹ for public entity liability arising from injury caused by a dangerous condition of its property, and outside the governmental immunity extended to injuries arising from a natural condition on unimproved public property conferred by section 831.2.

Standards Governing Our Appellate Review

"[A] general demurrer admits the truth of all material factual allegations in the complaint ...." (Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) That plaintiff may not prove these allegations are not our concern; for, "plaintiff need only plead facts showing that he may be entitled to some relief ...." (Ibid.) " '[T]he allegations ... [are] to be liberally construed with a view to attaining substantial justice among the parties.' " (King v. Central Bank, 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.)

"Although facts should be averred in 'ordinary and concise language' (Code Civ.Proc., § 426), precise form and language are not essential. '[T]he rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.' [Citation.]" (Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.)

Factual and Procedural Background

On June 18, 1978, Theresa Gonzales drowned while swimming in the ocean surf at Black's Beach.

The second amended complaint alleges: City owned or controlled the beach and surf area known as "Black's Beach" to which it voluntarily provided lifeguard and police protection. By providing these services, City assumed the obligation to warn the general public of unsafe conditions in the surf next to the beach, posting areas unsafe for swimming when unsafe conditions exist, patrolling and providing lifeguard services to protect beach users and to assist those in need of rescue. On June 18, 1978, before 2:00 p.m., a riptide condition existed in the surf at Black's Beach, a danger existing for a period of time sufficient for City to have taken protective measures to warn members of the public from entering the surf. Although City knew or in the exercise of due care, should have known of the dangerous riptide, it created a dangerous condition by negligently failing to post any warning, by not marking the beach and surf areas as unsafe for public swimming, and by not adequately patrolling the area or having sufficient lifeguard or police service present at the time of the incident. These omissions created a reasonable expectation of safety for potential swimmers. At approximately 2:00 p. m. on June 18, 1978, the decedent arrived at Black's Beach and, in the absence of posted warnings of the dangerous riptide and any police or lifeguard patrols, assumed the area was safe for public swimming, entered the surf, and drowned, her death being proximately caused by City's negligence in creating a dangerous and defective condition by failing to warn of the riptide within the surf.

City's demurrer asserting an absolute immunity under section 831.2, providing immunity for injuries "resulting from a natural condition at any unimproved public property," was granted without leave to amend.

The Absolute Immunity of Section 831.2 Does Not Apply to a Hybrid Natural and Artificial Condition

City's reliance upon section 831.2, ² which codifies an absolute immunity for public entities and their employees regarding injuries caused by natural conditions associated with unimproved publicly-held real property, is misplaced. The section only applies to natural conditions on unimproved realty. Assuming Black's Beach is unimproved property (see Fuller v. State of California, 51 Cal.App.3d 926, 937, 125 Cal.Rptr. 586; Rendak v. State of California, 18 Cal.App.3d 286, 288, 95 Cal.Rptr. 665), the remaining requirement, a natural condition, is not present. For, the complaint describes a hybrid dangerous condition, partially natural and partially artificial in character, the result of a combination of a natural defect within the property and the third-party conduct of City. Thus, the dangerous condition here arose from the existence of a natural dangerous riptide condition, plus City's voluntarily providing lifeguard service at Black's Beach (a duty with which it impliedly was not burdened under section 831.2), and its performing that voluntarily assumed service negligently by failing to warn of the known, hazardous, natural condition.

City points to County of Sacramento v. Superior Court, 89 Cal.App.3d 215, 152 Cal.Rptr. 391, for impliedly recognizing section 831.2 applies in those instances where a public entity provides protective services. The dissimilar facts there involved a county ranger who, while patrolling a beach area, observed debris trapped in the American River and reported this to his supervisors. Two days later, the plaintiff's decedent's raft was caught in the "snag," and its occupant drowned. There section 831.2 conferred immunity upon the county as a matter of law; however, the facts are distinguishable. The ranger's primary duties solely consisted of litter control and control of the conduct and activities of persons on county property. However, here, the alleged lifeguard services directly relate to safeguarding public swimmers' lives from known, hazardous, natural conditions of the surf.

City urges immunity is required to prevent defeating the legislative purpose and intent in enacting section 831.2. The section was designed to promote public use of public unimproved property in its natural condition without shackling the governmental entity with "the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries [which] would probably cause many public entities to close such areas to public use." (Sen.Com.Comm. to section 831.2.) If it can be held liable under the instant circumstances, City claims the immunity of section 831.2 becomes meaningless since it will be obligated to make the Pacific Ocean safe for public use, an impossible task, or compel it to close such beaches entirely or to withdraw all lifeguard services voluntarily provided to unimproved public beaches. Not so.

City misconstrues not only the character of the dangerous condition involved, but also the pertinent legislative intent underlying the adoption of section 831.2. True, the statutory provision was enacted to relieve public entities of the duty, burden, and expense of putting natural areas in a safe condition and defending claims for injuries flowing from their use. In essence, it provides primary insulation from liability, freeing the public entity of the duty of providing any protective service. However, once the public entity provides the protective service so as to create a dangerous condition, by combining a known natural defect within the property and the negligent performance of its directly related, voluntarily-assumed protective service, the underlying intent, of the provision of freeing the public entity from the duty of performing protective services, becomes moot.

Granted, where "a duty of ordinary care may arise from such a voluntary relationship, such duty is not absolute and will exist only where required by public policy." (Fuller v. State of California, supra, 51 Cal.App.3d 926, 946, 125 Cal.Rptr. 586.) Under the circumstances at bench, where a public entity voluntarily assumes a protective duty toward certain members of the public, even though there is no liability for its acts or omissions, upon undertaking the action on behalf of the public and inducing public reliance, the entity will be held to the same standard of care as a private individual or entity. (Hartzler v. City of San Jose, 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5; Mann v. State of California, 70 Cal.App.3d 773, 780, fn. 6, 139 Cal.Rptr. 82.)

City's apprehension it would in the future be responsible for making the Pacific Ocean safe for public use is unfounded. The law only requires City to perform its voluntary duties with ordinary care. Nor will this holding compel public entities to close such beaches, because of the scarcity of such natural, recreational real property and the inevitable public outcry in response to any such attempt. Potential liability is mandated under these circumstances due to public policy reflected legislatively by the enactment of section 835. Moreover, "[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by wilful or negligent acts must prevail." (Ramos v. County of Madera, 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 484 P.2d 93.)

City's Potential Liability Can Be Predicated Upon Section 835

Section 815 ³ establishes sovereign immunity in this state except as provided in the Tort Claims Act or other statute. (Williams v. Horvath, 16...