Rendak v. State of California

• Decision Date: 22 June 1971
• Citation: 95 Cal.Rptr. 665,18 Cal.App.3d 286
• Parties: Sally RENDAK et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents. Civ. 26768.
• Court: California Court of Appeals Court of Appeals

Page 665

95 Cal.Rptr. 665

18 Cal.App.3d 286

Sally RENDAK et al., Plaintiffs and Appellants, v. The STATE of California et al., Defendants and Respondents.

Civ. 26768.

Court of Appeal, First District, Division 3, California.

June 22, 1971.

Hearing Denied Sept. 2, 1971.

Boccardo, Blum, Lull, Niland, Teerlink & Bell, by Stanley A. Ibler, Jr., San Jose, for plaintiffs-appellants.

Thomas C. Lynch, Atty. Gen., Robert L. Bergman, Wayman M. Robertson, Jr., Deputy Attys. Gen., San Francisco, for defendants-respondents.

DRAPER, Presiding Justice.

This wrongful death action was tried against defendant state only. Nonsuit was granted at the close of plaintiffs' case and plaintiffs appeal from the ensuing judgment.

The state owns and operates Brighton Beach Park in Santa Cruz County. The park includes some 64 acres. Administrative offices, staff residence, a parking area and other incidental facilities are located on a plateau well above the beach. Below, along the ocean front, is an area of sandy beach which is the principal recreational attraction. West of the sandy beach, but still within state ownership, is a finger of land which runs beneath a steep cliff rising some 72 feet above the water. At high tide, this finger is wholly submerged, but at lower tides becomes a narrow strip of wet land.

At its easterly end, where the beach area ends and this narrow finger begins, is a sign reading 'Submerged at High Tide,' and another reading 'Slide Area.' The cliff and the narrow finger below it extend to the westerly limit of the state park. Along the sandy beach to the east, the only improvements are rest rooms and some 'fire rings'--circles of concrete set in the sand for building of fires. A rest room appears to be the nearest improvement to the site of the fatal accident here involved, and it is some 650--900 feet from the accident site.

The Randaks were visitors from out of state. On July 16, 1967, the family went to the beach with friends. Decedent and the other three men of the party walked from the beach area to the narrow finger of land and then along it directly beneath the cliff. A portion of the cliff area slipped into the sea, killing Mr. Rendak.

The motion for nonsuit was made and granted upon two grounds. We need consider but one of these, the absolute immunity granted by Government Code section 831.2. ¹ 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.'

Appellants' argument, both to the trial court and here, is that the existence of improvements in a public park excludes the entire park, including wholly unimproved areas thereof, from application of Section 831.2. They contend that the only jury question under this section is whether any improvements existed in the park. It is, of course, undisputed that some improvements did exist. We cannot accept appellants' contention. The section specifically extends the immunity to 'any natural condition of Any * * * beach.' Appellants' argument would demolish the immunity as to an entire park area improved in any way other than by access roads or trails, ground already specifically covered by Section 831.4. An entrance gate, a parking area adjoining it, or residential provision for park employees would wholly destroy the immunity. Appellants' position would be entirely sound if the section had been adopted as originally recommended by the Law Revision Commission (Law Rev. Comm., 1963 Recommendation Relating to Sovereign Immunity, p. 852). But the legislative modifications clearly demonstrate a contrary view. We, of course, deal with the statute as adopted, and not with the earlier version suggested to and rejected by the Legislature. It follows that improvement of a portion of a park area does not remove the immunity from the unimproved areas. We reject also the state's contention that any improvement, however remote and distinct from the source of danger, renders the entire park immune to suit, and its unstated corollary that the only actionable injury is one directly caused by a defect in some man-made improvement.

This conclusion disposes of the argument advanced by counsel. The dissenting opinion, however, turns upon a view not advanced--that the record here raises a question of fact for jury determination as to whether the unimproved danger area is 'within and can be said to be a part of the improved area,' and thus outside the immunity extended by Section 831.2. We cannot agree. Here, the natural and unimproved area is shown by the evidence and the aerial photograph to be separate, distinct and remote from the improved portions, and thus clearly within Section 831.2. We are more persuaded to this conclusion by omission of that argument from the trial or appellate presentations of the able and experienced counsel representing plaintiffs, long attuned to the value of opposing nonsuit by suggesting the existence of fact issues. Their adoption of an all or nothing argument on immunity under Section 831.2 reinforces our view that there is no true fact question on that issue here. The legislative committee report has declared that the exemption granted by this section is 'absolute.' While there may well be cases which present such a fact issue, we should not lightly dilute the absolute exemption by finding a jury issue where none truly exists.

Judgment affirmed.

CALDECOTT, J., concurs.

HAROLD C. BROWN, Associate Justice.

I dissent.

I agree with the majority of this court that the sufficiency of the evidence of either actual or constructive notice of the dangerous condition of the cliff is an issue for the jury.

I disagree only with the holding that as a matter of law the evidence conclusively disclosed that Rendak's death was caused by a slide of land in its natural condition on an unimproved area of the park so as to come within the immunity provisions of Government Code section 831.2.

It is to be noted at the outset that when reviewing a judgment after nonsuit the appellate court "must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can reasonably be drawn which are favorable to the appellant." (Sperling v. Hatch, 10 Cal.App.3d 54, 57, 88 Cal.Rptr. 704, 706; Golceff v. Sugarman, 36 Cal.2d 152, 153, 222 P.2d 665.)

Government Code section 831.2 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.' (Emphasis added.)

This statutory immunity has not as yet been interpreted by any court. The Legislative Committee Comment...