Rombalski v. City of Laguna Beach

Decision Date30 August 1989
Citation261 Cal.Rptr. 820,213 Cal.App.3d 842
PartiesBryon Michael ROMBALSKI, et al., Plaintiffs and Appellants, v. CITY OF LAGUNA BEACH, Defendant and Respondent. G006191.
CourtCalifornia Court of Appeals Court of Appeals
Harney, Drummond, Garza & Packer and Thomas Kallay, Los Angeles, for plaintiffs and appellants

Kinkle, Rodiger & Spriggs and James W. Parker, Santa Ana, for defendant and respondent.

OPINION

OLIVER, Associate Justice. *

Bryon Michael Rombalski and Carol L. Steen (hereafter "Bryon") appeal the granting of a summary judgment motion in favor of City of Laguna Beach.

Factual and Procedural Background

On July 31, 1984 Bryon then age 13 dove from a rock approximately nine to ten feet tall and fourteen by nine feet wide into the ocean at Pearl Beach located on the city's property and suffered severe injuries. Three of his young friends saw him floating in the water and after great effort were able to drag him to shore, two of them supporting Bryon from his underarms with Bryon's neck down to his chest, the other pushing from the rear with no support to his head. Bryon is now a quadriplegic, with no use of his body below his shoulders and he is permanently confined to a wheelchair.

Before the disastrous dive, Bryon saw other individuals jumping off the rock and was aware an individual had injured his leg in so doing. In jumping into the waves from the rock, Bryon timed his jumps into the waves as they rolled in. Bryon had been told repeatedly by his friends not to dive head first into the water. Bryon was and is a resident of Arizona and as of the time of the accident had been to the ocean only a few times while visiting his father in California every year.

Pearl Beach is accessible to the public by a long stairway. A sign at the top warns against littering, drinking, and other minor offenses, but says nothing about diving from the rocks. The rock appears to have always been in its present location, an there was no evidence it had been modified by man. Bryon stated in his deposition that when the water was not hitting the rock, it was probably up to his neck. One of his friends, John Howard, stated in his deposition that when the waves surged the water would be [213 Cal.App.3d 847] about six feet deep and it would recede to about one foot in depth. Another friend testified the water varied between waist high at its greatest depth to knee high at its lowest.

A lifeguard station at Pearl Beach was not manned at the time of the accident; the lifeguard scheduled for duty called in sick and a substitute lifeguard had not yet arrived. The Laguna Beach lifeguard training manual specifically admonishes that the rocks on Pearl Beach, including the rock Bryon dove from, "should be watched carefully." Before the accident, Bryon had been warned by a lifeguard who had seen him dive from the rocks to not do it again.

On October 30, 1984, a claim was filed with the city alleging "injury caused by dangerous and defective condition of the rock and beach, ... inadequate and negligent warning thereof and protection therefrom...." A complaint was filed April 19, 1985, containing two causes of action. The first cause of action alleged: "... Said public property was in a dangerous and defective condition ... by reason of its configuration, the height of the rock, the depth of the ocean, irregularities in the ocean bottom, and submerged rocks ...; that said condition was created by defendants, and each of them, and was known and should have been known to defendants, and each of them, who negligently failed to remedy said condition, or adequately warn the public, including plaintiff, thereof, or to protect the public, including plaintiff, therefrom, that at said time, and prior thereto, defendants, and each of them, had undertaken to provide warnings, protection and lifeguard services thereat." The second cause of action sought recovery of medical and incidental expenses by Bryon's mother and is not relevant to this appeal.

Laguna Beach denied liability and raised specific affirmative defenses, including Government Code sections 815, 830.6, 831.2, 831.7, 835.4, 840.6 and Civil Code section 846. Thereafter the city moved for summary judgment. Before the hearing on that motion, however, Bryon moved to file a first amended complaint. The municipality filed formal opposition, but the motion was not heard because plaintiff had failed to file a meet and confer statement pursuant to Orange County Rules of Court, Rule 504. The city's motion for summary judgment was granted, and an order entering judgment was filed on October 20, 1987. A motion for reconsideration was denied on December 11, 1987. Bryon renewed his motion for leave to file a first amended complaint after summary judgment was granted and before the motion for reconsideration. Bryon filed his notice of appeal on the entry of judgment pursuant to the order granting the motion for summary judgment on December 17, 1987. On December 30, 1987, the court denied Bryon's motion to file the first amended complaint.

[213 Cal.App.3d 848]

Issues Presented on Appeal

First, Bryon contends several triable issues of fact exist which preclude summary judgment. Second, he argues that the third cause of action of his proposed first amended complaint alleged a special relationship between him and the city upon which liability could be imposed independently of the dangerous condition could only be determined in light of triable issues of fact. Third, he claims factual issues exist as to Laguna's mandatory duties under Government Code section 815.6, as alleged in the second and fourth causes of action of the proposed amended complaint. We disagree with each of Bryon's contentions and will deal with them in the order presented above.

Code of Civil Procedure section 437c, subdivision (c) sets forth the standard for granting a motion for summary judgment. It provides in relevant part: "The motion [ ] shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (See Terrell v. Local Lodge 758, etc., Machinists (1957) 150 Cal.App.2d 24, 26, 309 P.2d 130.) In Rickel v. Schwinn Bicycle Co. (1983) 144 Cal.App.3d 648, 653, 192 Cal.Rptr. 732, the Court of Appeal observed, " 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' [Citation.]" But, "[w]here there is no material issue of fact to be tried and the sole question before the trial court is one of law as to whether the claim of the moving party is tenable on the undisputed facts, it is the duty of the trial court on a motion for summary judgment to hear and determine the issue of law." (Pittman v. Pedro Petroleum Corp. (1974) 42 Cal.App.3d 859, 862, 117 Cal.Rptr. 220.)

More recently, the California Supreme Court noted, "The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact. [Citation.] Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves. [Citation.] [p] Summary judgment is a drastic measure that deprives the losing party of a trial on the merits. [Citation.] It should therefore be used with caution, so that it does not become a substitute for a trial. [Citation.] ... [p] A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

[213 Cal.App.3d 849]

DISCUSSION

No material triable issues of fact are present under the first cause of action.

Bryon's first cause of action alleges injury caused by a dangerous condition of public property as set forth in Government Code section 835. 1
I

As a matter of law the rock in question is not a dangerous condition.

Section 830 defines "dangerous condition" as "a condition of property that creates a substantial ( [not] minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." Section 830.2 provides that the "condition is not a dangerous condition [if] viewing the evidence most favorably to [Bryon, either the trial or appellate court] determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when ... used with due care in a manner in which it was reasonably foreseeable that it would be used."

Laguna Beach correctly points out that the case of Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 231 Cal.Rptr. 598 stands for the proposition that public entities may be liable for a failure to warn of dangerous conditions only when the presence of an actual dangerous physical defect or an otherwise dangerous condition would not be apparent to persons using the property with due care. In Fredette the plaintiff was injured when he dove from a pier into shallow water having previously used the lagoon on numerous occasions knowing the purpose of the pier was to provide access to a float and not for use as a diving platform. Similarly, Bryon was aware of the rock and shore area; that another individual had been injured while jumping from the rock; had been warned by two of his friends that he should not dive into the water;...

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