Morin v. County of Los Angeles

• Decision Date: 01 November 1989
• Docket Number: No. B039011,B039011
• Citation: 263 Cal.Rptr. 479,215 Cal.App.3d 184
• Court: California Court of Appeals Court of Appeals
• Parties: Jesse Joseph MORIN, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

Page 479

263 Cal.Rptr. 479

215 Cal.App.3d 184

Jesse Joseph MORIN, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

No. B039011.

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

Nov. 1, 1989.

Certified for Partial Publication ^*

Review Denied Jan. 17, 1990.

Richard A. Morse, Gary Silverman, Beverly Hills, and Marc S. Margolies for plaintiff and appellant.

Wasserman, Comden & Casselman, David B. Casselman, Kevin H. Park, Tarzana, and Robert C. Powers, Sherman Oaks, for defendant and respondent.

ORTEGA, Associate Justice.

We affirm the summary judgment in favor of defendant County of Los Angeles,

based upon its statutory immunity for personal injury caused by "any natural condition of any ... beach" (Gov.Code, § 831.2), ¹ and for injury arising from "hazardous recreational activities." (§ 831.7.)

FACTUAL BACKGROUND

Plaintiff, a 16-year-old male, was injured while diving into the surf at Venice Beach on the afternoon of July 16, 1984. After arriving at the beach and speaking with relatives, plaintiff disrobed and ran 10 to 15 feet into the surf. When the water went just above his knees, plaintiff dove in with his hands extended forward, intending to make a "flat" dive. However, his head struck a hidden sand bar. His cousin pulled him out of the water, which was only ankle-deep. The impact rendered plaintiff a quadraplegic.

Plaintiff's accident occurred approximately 300 feet north of the Venice pier, which also housed the nearest lifeguard station. On prior outings to Venice Beach, plaintiff observed posted signs on top of the pier prohibiting swimming within 200 feet of the pier. Plaintiff saw no other warning signs concerning sand bars, rocks, or other hazards.

ISSUES

Plaintiff contends (1) triable issues of fact exist as to whether his injury was caused by a natural condition of unimproved public property (§ 831.2); (2) the governmental immunity for injury arising from hazardous recreational activities (§ 831.7) does not apply; and (3) he should be permitted to amend his complaint to allege his injury was not caused by a natural condition of unimproved public property.

DISCUSSION

Summary judgment, a drastic procedure which denies the adverse party the right to a trial on the merits, should be granted with caution. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) Summary judgment should only be granted when the evidence in support of the moving party establishes that there is no triable issue of material fact. (Code Civ.Proc., § 437c, subd. (c).) The moving party bears the burden of furnishing supporting documents to establish the adverse party's claims lack merit under any legal theory. (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.) The court will strictly construe the moving party's affidavits, while liberally construing those of the adverse party. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) Any doubt concerning the propriety of granting the motion should be resolved in favor of the adverse party. (Ibid.)

A. Natural Condition of Unimproved Property Immunity

The trial court granted defendant's motion for summary judgment on the basis of its immunity under section 831.2, which defendant had raised as an affirmative defense in its answer to the amended complaint. That section provides: "Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach." (§ 831.2.)

When originally introduced in the Legislature in 1963 as part of Senate Bill No. 42, section 831.2 only provided immunity for " '... an injury caused by a natural condition of any natural lake, stream, river or beach, if at the time of the injury the person who suffered the injury was not using the property for a purpose for which the public entity intended the property to be used.' " (Osgood v. County of Shasta (1975) 50 Cal.App.3d 586, 589, 123 Cal.Rptr. 442.) Following several amendments, the bill was enacted in its present form, which immunizes "any natural condition of any lake, stream, bay, river or beach." (§ 831.2 (italics added.); Osgood v. County of Shasta, supra, 50 Cal.App.3d at p. 590 123 Cal.Rptr. 442.) The legislative history of section 831.2 clearly demonstrates the Legislature extended immunity to not only natural bodies of water, but to any bodies of water including those that are man-made. (Ibid.)

Immunity under section 831.2 exists even where the public entity's nearby improvements together with natural forces add to the buildup of sand on a public beach. In Fuller v. State of California (1975) 51 Cal.App.3d 926, 125 Cal.Rptr. 586, the 17-year-old plaintiff sustained injuries when he dove into shallow ocean water from a cliff in a state park. With respect to section 831.2, the plaintiff in Fuller contended the construction of the nearby Santa Cruz yacht harbor and jetty together with rip rock work altered the natural condition of the ocean floor by causing a buildup of sand on the beach and around the cliff. (Id. at pp. 936-938, 125 Cal.Rptr. 586.) But the Fuller court rejected his assertion that the governmental entities "by its acts participated in the sand buildup." (Id. at p. 938, 125 Cal.Rptr. 586.) The court concluded the accident site constituted a natural condition of unimproved public property, and attributed the sand buildup to a combination of human activity and natural forces. (Id. at pp. 938-939, 125 Cal.Rptr. 586.) Fuller correctly rejected the plaintiff's contention that section 831.2's immunity extends only to land which has not been affected in any way by human activity. (Id. at p. 938, 125 Cal.Rptr. 586; Bartlett v. State of California (1988) 199 Cal.App.3d 392, 398-399, 245 Cal.Rptr. 32.)

The Fuller court's analysis of section 831.2 is entirely consistent with that found in cases dealing with injuries sustained on man-made lakes (see Osgood v. County of Shasta, supra, 50 Cal.App.3d at p. 590, 123 Cal.Rptr. 442 (affirmed a judgment of dismissal after a demurrer was sustained without leave to amend based on section 831.2's immunity for death arising from a water skiing accident allegedly caused by the county's failure to warn of a dangerous condition of the artificial lake's shoreline); cf. Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 887-889, 180 Cal.Rptr. 586 (reversed a judgment of dismissal and granted leave to amend despite the defect in plaintiff's complaint, because there was a reasonable possibility he could allege his injury, which was sustained while swimming and diving in a man-made lake, was caused by an artificial condition)). Immunity under section 831.2 has been upheld despite human regulation of the artificial lake's water level (Eben v. State of California (1982) 130 Cal.App.3d 416, 424-425, 181 Cal.Rptr. 714 (reversed an order granting plaintiff's motion for new trial and directed the trial court to enter judgment for the state based on its immunity under section 831.2 for plaintiff's injury sustained upon striking a submerged rock while water skiing in an artificial lake)). And in County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215, 218, 152 Cal.Rptr. 391, the court found a snag which dislodged the plaintiff from his floating device and trapped him underwater in the American River near a county park was a natural condition of unimproved property even though the water level and flow were controlled by a dam 15 miles upstream.

The record in this case contains no evidence of human alteration at the accident site. We thus find this case presents a more compelling instance of immunity under section 831.2 than do those cases granting immunity for injuries sustained in man-made lakes (Osgood v. County of Shasta, supra, 50 Cal.App.3d 586, 123 Cal.Rptr. 442; Eben v. State of California, supra, 130 Cal.App.3d 416, 181 Cal.Rptr. 714) or in a lake or river where the water flow and level were manually regulated (Eben v. State of California, supra, 130 Cal.App.3d 416, 181 Cal.Rptr. 714; County of Sacramento v. Superior Court, supra, 89 Cal.App.3d 215, 152 Cal.Rptr. 391).

Despite or perhaps due to the absence of any human alteration at the accident site in this case, plaintiff argues for the first time on appeal that defendant "proffered no evidence to indicate that a beach, surrounded by numerous jetties, rock groins, a pier and a manmade underwater reef were still in their 'natural conditions' ... and were unaltered or unimproved by Man." As did the plaintiff in Fuller v. State of California, supra, 51 Cal.App.3d 926, 125 Cal.Rptr. 586, plaintiff here asserts these nearby improvements altered the natural flow of the waves and sand, causing the sand to build up at the site where he struck his head. Plaintiff contends a triable issue of fact thus exists as to whether his accident was caused by a natural condition of unimproved public property.

The fatal flaw in plaintiff's reasoning, however, is that section 831.2 applies to "any natural condition of any ... beach." (§ 831.2) Even if we assume for the purpose of discussion that these man-made improvements combined with natural forces to lower the water level at the accident site from knee-deep to ankle-deep, the sand bar nevertheless remained a natural condition of the beach. Under these facts, section 831.2's immunity applies despite any human activity which indirectly added to the sand buildup on the beach and ocean floor at Venice Beach. (Fuller v. State of California, supra, 51 Cal.App.3d at pp. 938-939, 125 Cal.Rptr. 586.)

Plaintiff's reliance on Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221, 123 Cal.Rptr. 338, is misplaced. There, the plaintiff sustained a broken neck while surfing when he was suddenly thrust down into the sand by the action of the wave he...