Larson v. Santa Clara Val. Water Conservation Dist.

• Decision Date: 23 July 1963
• Parties: , 8 A.L.R.3d 665 Norman Kenneth LARSON, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER CONSERVATION DISTRICT, Defendant and Respondent. Civ. 20053.
• Court: California Court of Appeals Court of Appeals

Page 875

32 Cal.Rptr. 875

218 Cal.App.2d 515, 8 A.L.R.3d 665

Norman Kenneth LARSON, Plaintiff and Appellant, v. SANTA CLARA VALLEY WATER CONSERVATION DISTRICT, Defendant and Respondent.

Civ. 20053.

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

July 23, 1963.

Rehearing Denied Aug. 6, 1963.

Hearing Denied Sept. 18, 1963.

Boccardo, Blum, Lull, Niland & Teerlink, by Norman W. Saucedo, San Jose, for appellant.

Spencer M. Williams, County Counsel, Joan A. Symon, and Robert P. McNamee Deputies County Counsel, by Joan A. Symon, Deputy County Counsel, San Jose, for respondent.

BRAY, Presiding Justice.

Plaintiff appeals from judgment of nonsuit.

QUESTIONS PRESENTED.

1. Was plaintiff required to file a claim?

2. Was there evidence of defendant's negligence?

3. Was there evidence of nuisance?

RECORD.

Plaintiff sued defendant district for damages for injuries received by him when, on July 10, 1958, in water skiing at Calero Reservoir, he lost his balance, fell into the water head first and struck his head on the bottom of the reservoir. The reservoir is one of a number owned by defendant. The trial court granted defendant's motion for nonsuit on the grounds that the evidence showed no negligence or nuisance.

FACTS.

On April 7, 1958, defendant leased the reservoir to the County of Santa Clara for a recreational facility. Paragraph 2 of the lease provides: 'Lessee shall have the full control and authority over the use of the above described lands and water surface leased to Lessee for recreational purposes and Lessee may control, regulate and supervise the public use thereof. However, it is expressly understood that Lessor is engaged in the conservation of water and that neither this agreement nor any of the terms or conditions thereof shall in any way interfere with the absolute, free and unrestricted right of Lessor to operate and maintain said dam and reservoir or any appurtenant works thereto, or to repair or reconstruct any of its works, or to raise or lower the height of the water of said reservoir * * *' The district had a topographical map of the dam area, showing the elevation of the ground surface throughout the area. There are various elevations throughout the lake bed, but to the observer the surface of the lake appears to be one deep body of water. No map of the lake bed was given the county.

The county took over the recreational activity. It passed an ordinance affecting water activities, and rangers were on duty at the reservoir. Defendant did not work in liaison with the county with reference to the operation of the reservoir as a recreational activity. Defendant continued its conservation activities. Release of water from the reservoir during summer months was for the purpose of allowing it to percolate into the underground gravel strata so as to build up an underground water level in the Santa Clara Valley. Between May 1, 1958, when the reservoir was at full capacity, and the date of the accident, the reservoir's water level had been reduced approximately 7 feet.

Plaintiff started water skiing at Calero Reservoir about a month before the accident, and had skied there some three or four times. In that period the water was reduced approximately 5 feet. He had skied there the week end before the accident. On the day of the accident the water level was approximately 1 foot lower than when plaintiff was last there.

His fall was at a point approximately 70 to 90 feet off shore. He testified that the water was approximately belt high. (Plaintiff is 6 feet 5 inches tall.) He told a doctor immediately after the accident that the water was about 5 feet deep. Taking the testimony most favorable to plaintiff, the water at the point of the fall was probably about 3 feet deep and murky, so that its shallowness was not apparent.

The district's watermaster maintained a daily record of the water level in the lake, indicating the elevation above sea level, but did not check the height of the water in the shallow areas. The chief engineer of the district testified that he knew that the lake was being used for water skiing.

1. NO CLAIM REQUIRED.

Defendant district is established under the provisions of the Water Conservation Act of 1931 (Stats.1931, ch. 1020.) Defendant is not subject to the provisions of the Public Liability Act. (Gov.Code § 53051; Kambish v. Santa Clara Valley Water Conservation District (1960) 185 Cal.App.2d 107, 111-112, 8 Cal.Rptr. 215.) Thus the claim procedures under that act do not apply. At the time of the accident the Water Conservation Act of 1931 contained no provision requiring the filing of claims as a condition to the bringing of an action in the courts. The act merely contained a general section providing that claims shall not be paid until properly authorized. (West's Water Code--Appendix, § 39-21.) ¹

This action was properly brought without filing a claim against the district.

2. WAS THERE EVIDENCE OF DEFENDANT'S NEGLIGENCE?

The second amended complaint charged in its second count that defendant created a dangerous and defective condition of the reservoir by permitting its level to be lowered in certain areas to a depth of less than 3 feet, at which time the water was murky and the shallow areas were not visible to water skiers on the reservoir; that defendant knew or should have known that this constituted a hazard to skiers, and that as a result of said dangerous and defective condition plaintiff was caused to fall from his skis and strike the botton of the reservoir. (Actually, there was no evidence to the effect that the shallowness of the water caused the fall. The case apparently was tried on the theory that defendant's negligence caused plaintiff's injury after his fall from his skis.) Defendant denied any negligence and alleged contributory negligence.

It is well settled that a nonsuit may be granted 'only when, disregarding, conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff is such a verdict were given.' (Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768; see citations in 2 Witkin, Cal. Procedure, pp. 1857-1858.) Applying that test to the evidence in the case at bench, we find substantial evidence that would have supported a verdict in favor of plaintiff.

Initially it must be determined what duty, if any, defendant, as lessor, owed plaintiff. Defendant's duty was to exercise reasonable care. 'If a landlord creates a condition on his premises which is less safe than before and where the hazards are not open and obvious in all particulars a duty is owed to tenants or invitees who were familiar with the former condition to apprise them of this increase in risk factor.' (Foster v. A. P. Jacobs & Associates (1948) 85 Cal.App.2d 746, 750, 193 P.2d 971, 974 [slippery floor in corridor; landlord liable to tenant's employee].)

Under the lease, and in fact, defendant retained control of the water level even though the county had control of the actual recreation activity. It is a matter of common knowledge that water skiers are bound to fall off their skis and that there is likelihood of injury to a person falling into water as shallow as 3 feet, particularly when propelled from fast moving skis. Therefore it was a jury question as to whether the district knew or should have known that lowering the water created a dangerous condition of which the skiers were entitled to be warned, or, at the least, as to which the county should have been warned. (See 2 Witkin, Summary of Cal.Law, § 262, p. 1457; Miller v. Desilu Productions, Inc. (1962) 204 Cal.App.2d 160, 164, 22 Cal.Rptr. 36; Chance v. Lawry's, Inc. (1962) 58 Cal.2d 368, 373, 24 Cal.Rptr. 209, 374 P.2d 185; Haberlin v. Peninsula Celebration Ass'n (1957) 156 Cal.App.2d 404, 408, 319 P.2d 418.) The evidence showed that the district knew the topography of the ground below the water surface, and the location of the peaks, and that the county did not. Thus, it was for the jury to determine whether the district met its duty of reasonable care in the lowering of the water.

This is not a situation involving application of the general rule that an owner is not subject to liability during the term of a lease for injuries to third persons upon the leased premises resulting from the condition of the premises which were delivered to the tenant in good condition or the activities of the tenant, nor with any of the recognized exceptions to this rule, other than the one dealing with retention by the owner of control of a portion of the leased premises. (See Prosser on Torts, 2d ed., p. 465.) The liability of the owner here is to be determined upon a different, well settled principle of law, namely, 'A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.' (Rest., Torts, p. 976, § 360.)

In the case at bench, the condition causing the danger was in the sole control of the district. It was active negligence, if any, rather than passive. But even with passive negligence, the owner may be liable if the danger is caused by a condition in that part of the premises of which he was either sole or joint control with the lessee. As pointed out in Prosser, supra, page 471, where the owner retains control of a portion of the leased...