Heieck and Moran v. City of Modesto

• Decision Date: 28 February 1966
• Citation: 411 P.2d 105,64 Cal.2d 229,49 Cal.Rptr. 377
• Court: California Supreme Court
• Parties: , 411 P.2d 105 HEIECK AND MORAN, Plaintiff and Appellant, v. CITY OF MODESTO, Defendant and Respondent. S. F. 22196.

Page 377

49 Cal.Rptr. 377

64 Cal.2d 229, 411 P.2d 105

HEIECK AND MORAN, Plaintiff and Appellant, v. CITY OF MODESTO, Defendant and Respondent.

S. F. 22196.

Supreme Court of California, In Bank.

Feb. 28, 1966.

Rehearing Denied March 30, 1966.

Hall, Henry, Oliver & McReavy, Stephen McReavy, Ronald M. Sohigian and Lee H. Cliff, San Francisco, for plaintiff and appellant.

Augustus Castro, San Francisco, William B. Boone, Santa Rosa, Stephen H. Slabach and Frank, D. Tatum, Jr., San Francisco, for defendant and respondent.

Harry S. Fenton, Robert F. Carlson and Kenneth G. Nellis, Sacramento, amici curiae on behalf of defendant and respondent.

BURKE, Justice.

The second and third causes of action of the complaint herein seek recovery from defendant City of Modesto of damages to plaintiff's property caused by fire. The trial court sustained the city's general demurrer without leave to amend, and plaintiff appeals from the ensuing judgment dismissing the action as against the city. We have concluded that under prevailing rules of governmental immunity the city incurred no liability for plaintiff's alleged damages, and that the judgment should be affirmed.

In the second cause of action plaintiff alleges that on May 4, 1962, the fire department of defendant city was notified of a fire that had started at premises in the city adjoining those of plaintiff; that the department promptly responded with sufficient personnel, equipment and facilities to contain the fire, but because city employees had closed a valve in the water main there was no water in the fire hydrants and consequently the fire spread to plaintiff's premises; that the valve had been closed to permit relocation of certain water mains, but although the relocation had been completed at least a month before the date of the fire the valve had not been turned on; that no city employee notified either the city fire department or plaintiff that the water was shut off and was not available at the fire hydrants to extinguish fires in the vicinity of plaintiff's premises.

In the third cause of action it is alleged that defendant city 'well knew the County of Stanislaus maintained a fire department, with tank trucks, which was ready, willing and able to respond to said fire * * *; (but defendant city) failed and neglected to notify said county fire department of the existence of said fire and negligently and carelessly failed to request its assistance in containing and extinguishing same.'

Following the decision of this court in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, which became final February 27, 1961, and which held that the doctrine of governmental immunity could no longer be used to shield a public body from liability for the torts of its agents who acted in a ministerial capacity, the Legislature in 1961 enacted legislation suspending the rule of Muskopf until the 91st day after the final adjournment of the 1963 Regular Session. (Civ.Code, Code, § 22.3; Stats.1961, ch. 1404, §§ 3 and 4.) Thereafter, in Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488, 493(3), 20 Cal.Rptr. 621, 624, 370 P.2d 325, 328, it was pointed out that pursuant to that legislation 'an action may be brought and maintained in the manner prescribed by law on any cause of action which arose on or after February 27, 1961 and before the 91st day after the final adjournment of the 1963 Regular Session * * *.' (Italics added.) (See also Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375, 40 Cal.Rptr. 863; Hayes v. State of California (1964) 231 Cal.App.2d 48, 41 Cal.Rptr. 502; Moxon v. County of Kern (1965) 233 Cal.App.2d 393, 43 Cal.Rptr. 481.)

As stated, the fire involved in this case took place in 1962. In 1963 the Legislature added division 3.6 to the Government Code (§§ 810-996.6) to deal comprehensively with the problem of governmental immunity. (County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 843(4) 44 Cal.Rptr. 796, 402 P.2d 868.) This legislation reinstated the rule of Muskopf to some extent, but restricted governmental liability in certain instances and limited the remedies in others. The statute was expressly made retroactive 'to the full extent that it constitutionally can be so applied.' (Stats.1963, ch. 1681, § 45, subd. (a).) This court has held that the 1963 legislation can constitutionally be applied to causes of action which arose prior to its effective date. (County of Los Angeles v. Superior Court (1965) supra, 62 Cal.2d at pp. 844-846, 44 Cal.Rptr. 796, 402 P.2d 868.)

In the light of the 1963 statute we are of the view that for two reasons the judgment herein must be affirmed with respect to plaintiff's alleged second cause of action.

First, section 815 of the Government Code declares that 'Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, * * * and is subject to any defenses that would be available to the public entity if it were a private person.' (Italics added.)

In Stang v. City of Mill Valley (1952) 38 Cal.2d 486, 491-492(4, 5), 240 P.2d 980, it was held that the Public Liability Act of 1923 (Stats.1923, ch. 328, § 2, p. 675; former Gov.Code, § 53051) did not impose liability for a fire loss to property due to defective firefighting equipment (there, water lines clogged with refuse). The ground of the holding was that a private water company would not be liable, which in turn was based upon earlier cases holding that neither a city (Ukiah City v. Ukiah Water and Imp. Co. (1904) 142 Cal. 173, 75 P. 773, 64 L.R.A. 231) nor a private citizen (Niehaus Bros. Co. v. Contra Costa Water Co. (1911) 159 Cal. 305, 113 P. 375, 36 L.R.A., N.S., 1045) could recover damages from a water company for a property loss by fire due to the company's failure to maintain its water system properly. It appears that in Ukiah the complaint was of insufficient water pressure at the fire hydrants, and in Niehaus the court found that (as alleged here) defendant had no 'water supply in its mains available at the hydrants.' Thus Stang did not turn on the doctrine of severeign immunity, it was not overruled by Muskopf, and it is now reflected in the quoted provisions of section 815, subdivision (b), which confirm the absence of liability of the city under the circumstances here alleged by plaintiff. This holding likewise disposes of plaintiff's contention that liability is cast on defendant by the provisions of subdivision (a) of section 815.2 of the Government Code, which covers only acts for which a governmental employee would be liable. ¹ (See also section 820, subd. (b).) ²

Second, sections 850.2 and 850.4 of the Government Code expressly give immunity in this case. Section 850.2 provides that 'Neither a public entity that has undertaken to provide fire protection service, nor an employee of such a public entity, is liable for any injury resulting from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.' Section 850.4 states that 'Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection of firefighting equipment or facilities or (with an exception relating to motor vehicles) for any injury caused in fighting fires.' The complaint in the present case alleges...