Lupash v. City of Seal Beach

• Decision Date: 08 October 1999
• Docket Number: No. G018532.,G018532.
• Court: California Court of Appeals Court of Appeals
• Parties: David Titus LUPASH, Plaintiff and Appellant, v. CITY OF SEAL BEACH et al., Defendants and Respondents.

89 Cal.Rptr.2d 920

75 Cal.App.4th 1428

David Titus LUPASH, Plaintiff and Appellant, v. CITY OF SEAL BEACH et al., Defendants and Respondents.

No. G018532.

Court of Appeal, Fourth District, Division 3.

October 8, 1999.

Rehearing Denied November 1, 1999.

Review Denied January 13, 2000.

Samuel Trussell and Thomas T. Anderson, for Plaintiff and Appellant.

Ivan K. Stevenson, Rolling Hills Estate, and Jeffrey L. Boyle, for Defendant and Respondent City of Seal Beach.

John R. Calhoun and William A. Reidder, Sr., Long Beach, for Defendant and Respondent City of Long Beach.

OPINION

CROSBY, Acting P.J.

We do not expect our public entities, King Canute-like, to hold back the power of the sea. They are not responsible for natural hazards and owe no duty to warn beachgoers, or even children in city-sponsored junior lifeguard programs, against breaking waves and an uneven ocean floor.

The record in this case shows no evidence that defendants increased the inherent risk of harm of ocean athletics. The court did not err in granting a nonsuit, and we affirm accordingly.

I

On July 15, 1988, David Lupash, then 13, tripped and fell in the ocean during the final event of a junior lifeguard competition on the beach at 55th Place in east Long Beach. The accident happened about five to ten seconds after Lupash ran down the beach and into the water. He stepped into "something like a hole," lost his balance, and fell face down. He is now a quadriplegic.

An accomplished swimmer and a distance freestyler, Lupash had swum competitively since he was eight. He swam nearly every day, participating in one or two meets a month. He had engaged in rough water swims in previous years.

Several weeks before the accident, Lupash began a summer junior lifeguard program offered by the City of Seal Beach. The program was designed to "to teach kids how to interact at the beach, in the water, do competitions while enjoying themselves, while being safe." It involved a commitment of 15 hours a week over a 6-week period. About half the time was spent in the ocean, the remainder in instruction on ocean safety.

Lupash participated in a drill on cervical spine injuries the day before the competition. He was repeatedly admonished not to dive into shallow water because "you could hit your head on the bottom and break your neck which would cause spinal cord injury or other types of injuries." Instead he was told to use a "dolphin" dive to protect his head.¹

Lupash also was warned about such dangerous ocean conditions as undertows, undercurrents, rip tides, stingrays, and jellyfish. He could not recall being directed to make a "bottom check" to familiarize himself about the unevenness of the ocean bottom: "I vaguely — I remember, you know, [the instructor] discussing many things, but I'm not quite certain exactly, so it's [a] vague, vague memory."

About 300 to 400 children from 3 cities (Long Beach, Seal Beach and Newport Beach) participated in the July 15 competition. The 55th Place beach was chosen because it offered a large sandy area, relatively isolated from the public, with "pretty tranquil, flat, nice calm water." Protected by a breakwater, it had minimal surf conditions, with "ankle slapper" waves (about a foot or so) breaking close to shore. There were no undertows, rip currents, or stingrays. Since the junior lifeguards began using the beach at 55th Place in 1977 for training and competitions (with hundreds of thousands of entries), there had never been any reported accidents or incidents.

Lupash arrived shortly before 9 a.m. and spent about 10 to 20 minutes in the water to warm-up. He walked slowly waist deep in the water for a distance about 45 feet parallel to the shore. He did not feel anything unusual about the ocean floor and did not notice any holes or drop-offs.

There were six competitive events, including three in the water. Lupash participated in four of them: a long distance (two-mile) run on the sand, a run-swim-run individual race, a capture-the-flag event, and, a run-swim-run relay race. Both run-swim-run events involved running down the beach and into the water and swimming around buoys before returning to shore. Lupash won many of these events, including the individual run-swim-run.

Lupash did not do as well during the capture-the-flag game. He became involved in a pushing and shoving match with another boy who had roughhoused him; Lupash was disqualified for poor sportsmanship after he uttered a profanity. Upset and crying, Lupash decided to quit early: "I was just exhausted mentally and physically, and I said, `That's it. I'm not going to swim this last race.'" He changed his mind after Mark Lees (the Seal Beach instructor who had disqualified him) said, "`Stop acting like a baby. You're going to go out there and swim.'" His twin brother and teammate, Daniel, also encouraged him "not to let the team down."

The last race started about 10 minutes later. Lupash's turn came 10 minutes after that, about 1:30 p.m. To the cheers of his friends, who were yelling "Go, go, go," Lupash sprinted down the sand. He ran into the knee-deep water "as fast as I could," and "I tripped. I stepped into something like a hole, I just lost my footing. ... Then I lost my balance, and instinctively I tried to bring my arms out, and the next thing I knew, I was just face down in the water."²

The trial against Long Beach and Seal Beach was bifurcated on the issues of liability and damages. Lupash contended the cities were negligent in designating 55th Place for the junior lifeguard competition because "the site posed an undue risk of harm...." His evidence showed, "there was a [soft-bottomed] trough or trench ... that was inshore not far out and that it was a constant recurring phenomenon at that place ... that its dimensions ... [were] variously six to nine inches or more deep and that it had a width that was variously described as a foot or more in width, depending." He faulted Seal Beach for negligently telling him to run into the water "as fast as he could" without doing a bottom check, and for negligently telling him to compete in the last race even though he was "tired and mentally exhausted, emotionally exhausted."

II

The nonsuits were granted in the seventh week of trial. In reviewing a judgment of nonsuit, we accept plaintiffs version of the facts, giving him the benefit of all legitimate inferences and disregarding conflicting evidence. (Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 242 Cal.Rptr. 492 [nonsuit affirmed].)

California's magnificent coastline contains a variety of conditions: soaring cliffs, craggy coves, fog-shrouded inlets, sheltered bays, crashing waves. With natural beauty come natural dangers as well, including the hazards caused by churned-out depressions, inshore trenches, and sandbars. (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 924, 929, 6 Cal.Rptr.2d 874 [bodysurfer paralyzed from the chest down when shorebreaking waves abruptly hurled him headfirst against a hard sand bottom; "a combination of human activities and natural forces created the condition which resulted in Knight's tragic injuries."]; Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 315, 268 Cal. Rptr. 233 [16-year-old swimmer rendered a paraplegic when he dove into a wave and struck his head on a concealed sandbar; "mortals have no control over the winds and tides which create and destroy the sandbars and trenches, shaping the surface of the ocean floor"]); Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 194, 263 Cal.Rptr. 479 [16-year-old swimmer struck his head on a hidden sandbar while attempting to make a "flat dive," resulting in quadriplegia; hidden sandbars constitute a "a natural condition of the beach of which any reasonable person should have been aware"].)

Despite these risks, since 1987, California courts have consistently held that public entities do not owe a general duty of care to the public to provide safe beaches or to warn against concealed dangers caused by natural conditions of the ocean, regardless of whether lifeguard services have been provided. Public policy promotes coastal access, and "[t]he government does not become a guarantor of public safety by providing certain services on unimproved property in its natural condition." (Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 862, 261 Cal.Rptr. 820, cone. opn. of Crosby, Acting P.J. [no duty to warn 13-year-old plaintiff of dangers of diving from rock into shallow ocean water; affirming summary judgment for city].) Local governments have no obligation to remedy natural features of beaches. (Geffen v. County of Los Angeles, supra, 197 Cal.App.3d 188, 242 Cal. Rptr. 492 [affirming judgment of nonsuit to 21-year-old plaintiff who attempted a "racer's dive" when he hit a sandbar]; see also Knight v. City of Capitola, supra, 4 Cal.App.4th 918, 929, 6 Cal.Rptr.2d 874 [affirming summary judgment for city beach]; Tessier v. City of Newport Beach, supra, 219 Cal.App.3d 310, 268 Cal.Rptr 233 [same]); Morin v. County of Los Angeles, supra, 215 Cal.App.3d 184, 263 Cal. Rptr. 479 [affirming summary judgment for county beach].)³

Plaintiff has distinguished these authorities because he was more than a simple recreational user of the beach. Here, Long Beach selected 55th Place as the site for a junior lifeguard competition to which Seal Beach sent a team. The cities thereby stepped outside their usual role as landowner or provider of general public services. Additional obligations may be expected of them for evoking a false sense of security or because "some special relationship exists between the government and the injured party...." (Rombalski, supra, 213 Cal.App.3d at pp. 862-863, 261 Cal.Rptr. 820, cone. opn. of Crosby, Acting P.J.) As the trial court pointed out, what if "Long Beach called up Seal Beach and says, `Come on down to Piranha Point. You know we haven't had — we haven't had a kid eaten down there in...