Sambrano v. City of San Diego

• Decision Date: 06 December 2001
• Docket Number: No. D036894.,D036894.
• Citation: 114 Cal.Rptr.2d 151,94 Cal.App.4th 225
• Court: California Court of Appeals Court of Appeals
• Parties: Leana Maria SAMBRANO, a Minor, etc., et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

114 Cal.Rptr.2d 151

94 Cal.App.4th 225

Leana Maria SAMBRANO, a Minor, etc., et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.

No. D036894.

Court of Appeal, Fourth District, Division 1.

December 6, 2001.

Law Offices of Terrence L. Butler, Terrence L. Butler, Beverly Hills, and R. Scott Houtz, for Plaintiffs and Appellants.

Casey Gwinn, City Attorney, Anita M. Noone and Shoshana Lazik, Deputy City Attorneys, for Defendant and Respondent.

HUFFMAN, J.

Plaintiff and appellant minor Leana Maria Sambrano, by her guardian ad litem Art Sambrano, et al, sued defendant and respondent City of San Diego (the City) for personal injuries suffered when she climbed into and was burned in a fire ring containing sand-covered hot coals at a beach park owned and operated by the City. In addition, Leana's relatives (mother and sisters) brought their own cause of action for negligent infliction of emotional distress.¹ The trial court granted summary judgment in favor of the City on the ground that, as a matter of law, the condition of the park fire ring was not a dangerous condition of public property. (Gov. Code, §§ 830, 830.2;² Code Civ. Proc, § 437c, subd. (c).) In reaching its conclusions, the court declined to rule upon the evidentiary objections asserted by the City, stating that, instead, the court relied only upon evidence that was competent and admissible. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, 267 Cal.Rptr. 819 (Biljac).) As we will discuss, although we agree with the trial court's ruling as a correct legal interpretation of section 830.2, we find cause for concern in the evidentiary approach allowed by Biljac, supra, 218 Cal. App.3d 1410, 267 Cal.Rptr. 819, as inconsistent with standard rules of appellate review. We set forth these concerns and point out the advantages to the appellate courts when the trial courts issue rulings upon properly presented evidentiary objections. (Pt. IB, post.)

Moreover, assuming for the sake of argument that a different conclusion could have been reached as a matter of law, depending on the evidentiary status of the record if complete rulings had been duly made, we additionally hold there is no basis for City liability for a dangerous condition of public property under section 835 on either ground asserted by Plaintiff: (1) there was a negligent or wrongful act or omission of a City employee that created such a dangerous condition (§ 835, subd. (a)), or (2) due to actual or constructive notice provided to the City of the dangerous condition (§ 835, subd. (b)), there was sufficient time prior to the injury to allow measures to be taken to protect against it. Accordingly, we affirm the summary judgment on both related theories brought by Plaintiff.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are essentially undisputed. Plaintiff Laurie Sambrano brought her daughters to a family reunion at the De Anza Cove beach park in Mission Bay, San Diego on August 14, 1999. Family members had arrived around 8:00 that morning and had staked out a fire ring on the beach sand by placing chairs, wood and toys there to show they intended to use it later. The fire "ring" was about five feet wide and consisted of six-inch thick concrete walls that extended above the sandy surface to a height of 15 inches. There was no active fire, only sand and ashes, visible within the fire ring.

After lunch, the youngest daughter, almost-two-year-old Leana Sambrano, was being watched by her 12-year-old sister and her great aunt while she swam and played. Leana was playing with her cousins on the sand about a foot or two away from the fire ring wall. Suddenly, those present heard screaming near the fire ring as Leana moved away from it. There were little footprints in the fire ring and Leana had third degree burns on her feet. She was treated and required skin grafts to heal the burns.

Evidence in the record showed that the City provided nine fire rings on the beach area at De Anza Cove, and also provided garbage can-style hot coal disposal containers near barbecue pits at the grassy areas of the park. There were signs at the three beach entrances and posted elsewhere warning that fires should be built within fire rings only. The signs stated, "Dispose of hot coals in fire rings. User must douse materials in fire container with water when done."

Fire ring containers at the park were built to specifications to avoid problems that had previously occurred when they were moved or rolled away. The fire rings had a four foot square interior fire compartment with a natural beach sand fire base. The exterior walls are five feet across and 15 inches high and were painted with red warnings stating "CAUTION, HOT." Each ring weighs about 1,700 pounds. Two days before the incident, routine maintenance was performed on all the fire rings at the park. Such maintenance consists of using heavy equipment to lift and move the fire ring, compact and remove debris, and then replace the ring.

City lifeguards supervise the beach and sand areas. Lifeguards receive instructions to check fire rings for active fires and to check for fires outside of the fire rings. The lifeguard on duty the morning of the Sambrano family reunion testified that she checked the fire rings that morning and did not see any active fires. Lifeguards were provided with a "Mission Bay Update Summer 1999" sheet, which included the information, "Each station should have a yellow fire bucket, please use them each morning to cool down any illegal fires. The sand can stay hot for many hours and seriously burn young children, so please check your area carefully."

Lifeguard records showed that from April 1999 to September 1999, over 130,700 visitors used the De Anza Cove park, including many children. Lifeguards had not received any reports of similar incidents involving children being burned in fire rings at this park during the past five years. Plaintiff filed a tort claim and then this action.

The City answered Plaintiffs complaint and filed its motion for summary judgment, contending it was entitled to judgment as a matter of law because Plaintiff could not establish the fire ring was a dangerous condition of public property, and additionally, there should be design immunity. (Code Civ. Proc, § 437c.) The City supported its motion with photographs of the subject fire ring, signs, and surrounding areas, declarations by risk management and lifeguard personnel to authenticate the photographs, and an expert declaration by a safety engineer. This evidence explained the design of the fire rings was intended to address the problems the City had previously had with fire rings being small enough to move, or too small for the wooden pallets commonly used as fuel, or being subject to deterioration from heat damage.

Plaintiff opposed the motion, contending the signs instructing park users to dispose of hot coals in the fire rings were confusing because they did not instruct park users to douse the coals with water. However, patrons were told to douse coals placed in the fire containers near the grassy barbecue areas. Plaintiff argued the City should have had a policy requiring lifeguards to douse each of the fire rings with water at the beginning of morning lifeguard shifts. Plaintiff submitted an incident report from a state beach park in Carlsbad, California, stating that a small child who was dragging a boogie board behind him had tripped and fallen into a smoldering fire ring, sustaining burns. That incident occurred June 24,1997.

The City reply papers objected to the state park incident report of June 24,1997, objecting that it was hearsay, irrelevant, and lacked foundation. The City argued the undisputed facts left no room for a reasonable difference of opinion, and there was no dangerous condition as a matter of law. Moreover, Plaintiff had not shown the City employees breached a duty and thereby created a dangerous condition, or that the City had notice of the particular dangerous condition alleged.

At oral argument, Plaintiffs attorney claimed he had other evidence that there were 50 injuries a year from fire rings in the county, although he did not produce any such evidence. The evidentiary objections to the lone state park incident report were not discussed at oral argument. The trial court granted the City's motion, finding as a matter of law that the subject property was not in a dangerous condition at the time of the injury. The court declined to rule upon the evidentiary objections asserted by the City, stating that, instead, the court relied only upon evidence that was competent and admissible. (Biljac, supra, 218 Cal.App.3d at p. 1419, 267 Cal.Rptr. 819.) In its ruling, the court cited section 830.2 and set forth the following reasoning:

"The City has presented evidence that during the five years preceding this accident, no similar incidents involving children burned in fire rings at De Anza Cove were reported to Lifeguard Services personnel. Plaintiffs' evidence does not raise a triable issue of material fact in this regard. The evidence shows that the public was able to utilize the fire rings on the City beaches in general, and specifically at De Anza Cove, in a manner which did not create a substantial risk of the injury. [Citations.] Further, an exercise of due care at the beach requires supervision of children as young as Leana. With proper supervision, a small child will not be permitted to enter a fire ring even if it appears not to be `active.' Coals, ashes, are all likely to be present in even a `dormant' fire ring. Therefore, use of a beach with fire rings by small children requires proper supervision in order to exercise due care. The fact such an accident occurs does not equate to a legal determination that the subject property was in a dangerous condition. Rather, as here, the evidence can only support one reasonable interpretation: that the risk of a small...