Keyes v. Santa Clara Valey Water Dist.

• Decision Date: 17 February 1982
• Citation: 128 Cal.App.3d 882,180 Cal.Rptr. 586
• Court: California Court of Appeals Court of Appeals
• Parties: Roger A. KEYES, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER DISTRICT, et al., Defendants and Respondents. Civ. 26416.

Page 586

180 Cal.Rptr. 586

128 Cal.App.3d 882

Roger A. KEYES, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER DISTRICT, et al., Defendants and Respondents.

Civ. 26416.

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

Feb. 17, 1982.

Melvin W. Miller, Beverly Hills, for plaintiff and appellant.

Popelka, Allard, McCowan & Jones and James C. Hyde, San Jose, for defendants and respondents.

WORK, Associate Justice.

Roger A. Keyes appeals a judgment of dismissal after a demurrer was sustained without leave to amend to his complaint based upon personal injuries incurred when he struck a submerged object while swimming and diving in the Lexington Reservoir. Our sole issue is whether Keyes has pleaded facts sufficient to show his cause of action lies outside the breadth of Government Code section 831.2, ¹ affording defendants absolute governmental immunity, and within section 831.8 providing for qualified governmental immunity relating to artificial conditions of reservoirs and canals. We conclude, although Keyes has failed to meet his pleading burden, he is entitled to an opportunity to amend.

Procedural Background

Keyes' complaint contains a single negligence cause of action and names Santa Clara Valley Water District and the County of Santa Clara, among others, as defendants. He claims defendants own and operate the Lexington Reservoir which they made available for recreational use by the general public; it contained numerous submerged logs and other objects creating a dangerous and hazardous condition presenting an unreasonable risk of bodily harm when used with due care in a reasonably foreseeable manner; defendants had actual knowledge of these conditions and knew or should have known of their dangerous propensity; and he was engaged in the reasonable and foreseeable recreational use of the water of the reservoir when, as a proximate result of these hazardous conditions, he struck a submerged object causing severe and permanent personal injuries.

Defendants claim they are immune from liability for injuries resulting from a natural condition of unimproved public property (§ 831.2) and under Civil Code section 846, (which states an owner of real property has no duty to keep his property safe for entry and use by others for any recreational purpose except when he wilfully fails to guard or warn against a dangerous condition or where permission to enter was granted in exchange for consideration or where a person was expressly invited onto the property.) ²

Standards Governing Our Appellate Review

In light of the procedural posture of this case, we review this matter mindful of the established rules which govern our judicial role. "[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.) The issue of whether plaintiff can prove these allegations is not of our concern; for, "plaintiff need only plead facts showing that he may be entitled to some relief." (Ibid.) "The allegations are to be liberally construed with a view to substantial justice between the parties." (King v. Central Bank, 18 Cal.3d 840, 843, 135 Cal.Rptr. 771, 558 P.2d 857.)

"[I]t is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment .... However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citations.]" (Goodman v. Kennedy, 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737, quoting from Cooper v. Leslie Salt Co., 70 Cal.2d 627, 326, 75 Cal.Rptr. 766, 451 P.2d 406, italics added.)

Since all California governmental tort liability flows from the California Tort Claims Act (§ 810 et seq.; Williams v. Horvath, 16 Cal.3d 834, 838, 129 Cal.Rptr. 453, 548 P.2d 1125; Galli v. State of California, 98 Cal.App.3d 662, 674, 159 Cal.Rptr. 721), the plaintiff must plead facts sufficient to show his cause of action lies outside the breadth of any applicable statutory immunity. (Susman v. City of Los Angeles, 269 Cal.App.2d 803, 809, 75 Cal.Rptr. 240; Feingold v. County of Los Angeles, 254 Cal.App.2d 622, 625, 62 Cal.Rptr. 396; 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, §§ 487-492, pp. 2148-2154.) He must plead "with particularity," "[e]very fact essential to the existence of statutory liability." (Susman v. City of Los Angeles, supra, 269 Cal.App.2d 803, 809, 75 Cal.Rptr. 240.) "[T]he intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied." (Williams v. Horvath, supra, 16 Cal.3d 838, 129 Cal.Rptr. 453.)

Discussion

Keyes contends the trial court erred in applying section 831.2 ³ rather than section 831.8 ⁴ dealing specifically with reservoirs. Keyes mistakenly relies upon semantics rather than the substantive differences in these statutes.

The statutory immunity conferred to public entities by section 831.2 extends "to any natural condition of any lake," regardless whether the latter be natural or artificial. (Osgood v. County of Shasta, 50 Cal.App.3d 586, 589-590, 123 Cal.Rptr. 442; County of Sacramento v. Superior Court, 89 Cal.App.3d 215, 218, 152 Cal.Rptr. 391.) Like Lake Shasta in Osgood, the Lexington Reservoir, here, is an artificial, man-made lake created by constructing a dam and used by the public for recreational activities. "Reservoir" is defined as "[a] body of water collected and stored in a natural or artificial lake." (The American Heritage Dictionary of the English Language (1979), page 1106 col. 1.) Statutorily, " '[r]eservoir] means any reservoir which contains or will contain the water impounded by a dam." (Wat.Code, § 6004.5.) Consequently, whether section 831.2 or section 831.8 applies is not to be governed by semantics--the mere naming of a body of water a lake instead of a reservoir.

In order to determine which statute governs a particular factual situation, logically one must first look to the substantive scope of each statute. Generally speaking, section 831.2 codifies an absolute immunity for public entities and their employees regarding injuries caused by natural conditions associated with unimproved publicly-held real property, including water bodies and courses. On the other hand, section 831.8 sets forth a qualified governmental immunity for artificial conditions arising from man-made water impoundment and distribution improvements and facilities, such as reservoirs, canals, conduits and drains. (Nelsen v. City of Gridley, 113 Cal.App.3d 87, 93, 169 Cal.Rptr. 757.) ⁵ The former thus applies to natural conditions on unimproved realty, while the latter solely applies to artificial conditions the product of man-made improvements. Within a grey area between the individual breadths of each of these statutes, there exists those water facilities which are the result of the combined acts of men and of nature (see Fuller v. State of California, 51 Cal.App.3d 926, 938, 125 Cal.Rptr. 586), such as artificial lakes (Osgood v. County of Shasta, supra, 50 Cal.App.3d 586, 589-590, 123 Cal.Rptr. 442). As illustrated by Lake Shasta and Lake Arrowhead, these facilities often closely resemble natural resources.

The California Tort Claims Act in general, and section 831.2 in particular, fail to either define or establish "a precise standard for determining when, as the result of developmental activity, public property in its natural state ceases to be 'unimproved.' " (Van Alstyne, , California Government Tort Liability Practice, supra, § 3.42, p. 256.) Van Alstyne, in "A Study Relating to Sovereign Immunity," 5 Cal.Law Revision Com.Rep. (1963) at pp. 496, discusses in passing the term "undeveloped," defining it as relating to "those portions of public lands intended for recreational uses which are presently being held in their natural state, without substantial artificial improvements or changes except to the extent that such changes are essential to their preservation and prudent management ...." Moreover, in discussing bodies of water, Van Alstyne treats public natural and semi-natural water facilities alike. (Id., at p. 494.) It thus cannot be declared that whenever semi-natural water facilities, the result of combined acts of man and of nature, have developed and the area "is no longer in the pristine state which it was prior to the population of California, that the Legislature intended such an area to be excluded from the application of section 831.2." (Fuller v. State of California, supra, 51 Cal.App.3d at p. 938, 125 Cal.Rptr. 586.)

Case precedent establishes that at least "some form of physical change in the condition of the property at the location of the injury, which justifies the conclusion that the public entity is responsible for reasonable risk management in that area" (Van Alstyne, , California Government Tort Liability Practice, supra, § 3.42, p. 256) is required. (Rendak v. State of California, 18 Cal.App.3d 286, 288, 95 Cal.Rptr. 665, see Fuller v. State of California, supra, 51 Cal.App.3d 926, 937, 125 Cal.Rptr. 586, and compare Buchanan v. City of Newport Beach, 50 Cal.App.3d 221, 226-229, 123 Cal.Rptr. 338.) Of pertinence here, the court in County of Sacramento v. Superior Court, supra, 89 Cal.App.3d 215, at pages 218-220, 152 Cal.Rptr. 391, held a snag in a river flowing near a county park constituted a natural condition of unimproved property even though the water level and flow was controlled by a public dam 15 miles upstream. (Compare factually, Larson v. Santa Clara Valley Water Conservation Dist., 218 Cal.App.2d 515, 32 Cal.Rptr. 875, water skier was injured on an artificial lake (reservoir)...