Hibbs v. Los Angeles County Flood Control Dist.

• Decision Date: 29 June 1967
• Citation: 252 Cal.App.2d 166,60 Cal.Rptr. 364
• Court: California Court of Appeals Court of Appeals
• Parties: Charles G. HIBBS and Hazel Hibbs, Plaintiffs and Appellants, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, Defendant and Respondent. Civ. 31046.

Page 364

60 Cal.Rptr. 364

252 Cal.App.2d 166

Charles G. HIBBS and Hazel Hibbs, Plaintiffs and Appellants, v. LOS ANGELES COUNTY FLOOD CONTROL DISTRICT, Defendant and Respondent.

Civ. 31046.

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

June 29, 1967.

Rehearing Denied July 19, 1967.

Hearing Denied Sept. 27, 1967.

Valensi & Rose, Beverly Hills, by Donald Feinberg, Van Nuys, for appellants.

Harold W. Kennedy, County Counsel, Lloyd S. Davis, Asst. County Counsel, for respondent.

FLEMING, Associate Justice.

Wrongful death action.

Charles and Hazel Hibbs appeal from a judgment dismissing the Los Angeles County Flood Control District as a defendant on the ground that no cause of action had been stated against it.

This action is for the wrongful death of the plaintiffs' sons, seven years of age, who drowned on February 8, 1962, in the improved channel of the Los Angeles River at Canoga Park. In their complaint plaintiffs charged that the Flood Control District maintained the channel in a dangerous condition and had been negligent in failing to construct fences around the channel and post warning signs of danger at the location where the drowning took place. The unfenced channel amounted to a dangerous condition, plaintiffs claimed, because children from an elementary school located half a block away had been accustomed to play in and around the area of the channel, a fact which was well-known to the Flood Control District. According to the pleadings the channel was lined with concrete, and in cross-section had the shape of a trapezoid 125 feet wide at the top, 45 feet wide at the bottom, 17 feet deep, and with sides sloping at angles of 23 1/2 degrees. Following a heavy and lengthy rainstorm the channel was filled or partially filled at the time of the accident with a substantial quantity of swiftly flowing water.

The issue before the court is whether the omission of the Flood Control District to fence an improved waterway which passes through a residential area containing an elementary school can amount to the maintenance of a dangerous condition. The issue is perhaps complicated by the fact that the waterway is intermittent, normally dry, and only presents the hazard of drowning in times of heavy rainfall.

I

For purposes of determining liability we rule that Government Code, section 835, adopted in 1963, retroactively applies to this case, which was filed in October 1962 for the death which occurred in February 1962. (Stats.1963, ch. 1681, § 45(a), cited in County of Los Angeles v. Superior Court, 62 Cal.2d 839, 843--845, 44 Cal.Rptr. 796, 402 P.2d 868.) On this point we find nothing to add to what has already been said by Mr. Justice Pierce in Flournoy v. State, 230 Cal.App.2d 520, 41 Cal.Rptr. 190.)

II

Can the existence of an unfenced flood control channel amount to the maintenance of a dangerous condition for which the Los Angeles County Flood Control District may be held liable under the Governmental Liability Statute of 1963? We think it can, and that the issue of the Flood Control District's liability should have gone to trial.

For us the problem is largely solved by the text of the statute, the relevant parts of which declare,

'Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that * * *

'The public entity had actual or constructive notice of the dangerous condition * * *.' (Govt.Code, § 835.)

"Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' (Govt.Code, § 830.)

'* * * neither an irrigation district nor an employee thereof nor the State nor a state employee is liable under this chapter for an injury caused by the condition of canals, conduits or drains used for the distribution of water if at the time of the injury the person injured was using the property for any purpose other than that which the district or State intended it to be used. * * *

'Nothing in this section exonerates a public entity or a public employee from liability for injury proximately caused by a dangerous condition of property if:

'(1) The person injured was less than 12 years of age:

'(2) The dangerous condition created a substantial and unreasonable risk of death or serious bodily harm to children under 12 years of age using the property or adjacent property with due care in a manner in which it was reasonably foreseeable it would be used;

'(3) The person injured, because of his immaturity, did not discover the condition or did not appreciate its dangerous character; and

'(4) The public entity or the public employee had actual knowledge of the condition and knew or should have known of its dangerous character a sufficient time prior to the injury to have taken measures to protect against the condition. (Added Stats.1963, c. 1681, p. 3274, § 1.)' Govt.Code, § 831.8.)

It seems clear that under the Governmental Liability Act of 1963 a public entity is required to take suitable precautions to protect small children from the risk of injury in an improved waterway where the risk is substantial and where it is practicable to guard against the risk. The Law Revision Commission specifically commented with respect to section 830: 'Where it is reasonably foreseeable that persons to whom a lower standard of care is applicable--such as children--may be exposed to a substantial risk of injury from the property, the public entity should be required to take reasonable precautions to protect such persons from that risk. Thus, a public entity may be expected to fence a swimming pool or to fence or lock up a dangerous instrumentality if it is reasonably foreseeable that small children may be injured if such precautions are not taken.' (Law Rev.Com.Comment, West's Govt.Code, Anno., § 830, p. 170.) And with respect to section 831.8 the Assembly Legislative Committee commented: 'Under subdivision (d), if the person injured was under 12 years of age, the section's immunities are inapplicable if the use of the property by children was reasonably foreseeable, the condition was highly dangerous and not likely to be discovered or appreciated by children, and the condition was actually known to the entity sufficiently prior to the accident for the entity to have taken appropriate precautions.' (Law Rev.Com.Comment, West's Govt.Code, Anno. § 831.8 pp. 183--184.) It is apparent that in enacting Government Code, section 831.8(d) the legislature wholly adopted the standard of liability of a possessor of land to children which has been outlined in Restatement, Torts, 2nd, § 339, and which had been specifically adopted by the Supreme Court in King v. Lennen, 53 Cal.2d 340, 343, 1 Cal.Rptr. 665, 348 P.2d 98, to compel the fencing of swimming pools.

The extent of the liability for the maintenance of a dangerous condition under the 1963 Act is similar to that created by the Public Liability Act of 1923 for cities, counties, and school districts (West's Govt.Code, Anno., § 835, Legislative Committee Comment, p. 185), and hence cases...