Seybert v. Imperial County
| Decision Date | 17 July 1958 |
| Citation | 327 P.2d 560,162 Cal.App.2d 209 |
| Court | California Court of Appeals Court of Appeals |
| Parties | C. W. SEYBERT and Jean Seybert, Plaintiffs and Appellants, v. COUNTY OF IMPERIAL, James Gibson, Clifford Gibson, Rowland Gibson, Alma Gibson and Ed Rutherford, Defendants. County of Imperial, Respondent. Civ. 5839. |
Robert S. Butts, Hollywood, and French & Fleming, Brawley, for appellants.
Horton, Knox & Carter and Arthur L. Lockie, Dist. Atty. of Imperial County, El Centro, for respondent.
This is an action for damages for personal injuries in which the trial court sustained a demurrer as to the defendant Imperial County on the ground that the first amended complaint did not state facts sufficient to state a cause of action against said county. The demurrer was sustained with leave to amend. However, the plaintiffs failed to amend their complaint within the time allowed by the court and thereafter, on motion of the defendant county, a judgment of dismissal as to it was entered. Plaintiffs appeal from this judgment, contending that the allegations of their amended complaint are sufficient to state a cause of action under sections 53050 and 53051 of the Government Code.
On April 11, 1954, plaintiff Jean Seybert was water skiing on Weist Lake, an inland body of water approximately one-half mile wide, located approximately seven miles northeast of the city of Brawley. She was being towed by a motor boat operated by her husband, plaintiff C. W. Seybert, and was struck by a motor boat owned and being operated by the individual defendants herein, causing her to suffer serious injuries.
It is alleged in the complaint that the defendant county owned said Weist Lake, together with the beaches, approaches, docks and other facilities connected therewith; that said county maintained and operated the lake as a place of public recreation; that the county, through its officers, agents and servants, so negligently maintained, operated and controlled said lake that the same constituted a dangerous and defective condition of public property in that
(1) The county negligently failed to promulgate and enforce adequate, sufficient or any rules or regulations governing the operation of speed boats upon said lake for the safety of water skiers;
(2) Negligently failed and neglected to post copies of adequate or sufficient rules or regulations or any rules or regulations or other signs or indications of danger to water skiers in or about the waters or beaches of said lake for the protection of said water skiers and the plaintiffs;
(3) Negligently failed to patrol or police the waters of said lake and the beaches thereof;
(4) Failed to provide a numerically adequate personnel or any personnel for the purpose of patrolling and policing the waters and beaches of said lake;
(5) Failed to provide a sufficient number of efficient boats and motor vehicles or any boats and motor vehicles for the transportation of personnel necessary to adequately patrol and police the waters and beaches of said lake;
(6) Failed to provide an efficient and adequate means of communication with and between said personnel or any of them to enable them to efficiently and adequately patrol said waters and beaches;
(7) Failed to provide efficient experienced and trained personnel to patrol and police said waters and beaches for the protection of water skiers;
(8) Negligently failed to supervise, direct and control the activities of said personnel;
(9) Failed to prohibit and prevent speed boats from maneuvering and proceeding at a speed, traffic patterns, and in a manner dangerous to water skiers and the plaintiffs;
(10) Negligently failed to operate, maintain and control said laek and the publicly owned recreational areas thereof in a safe condition for the use by plaintiffs and other persons using said lake and adjacent premises.
The sole question presented on this appeal is whether the allegations of plaintiffs' complaint are sufficient to state a cause of action under sections 53050 and 53051 of the Government Code.
Section 53050 of the Government Code defines 'public property' as meaning public street, highway, building, park, grounds, works, or property, and 'local agency' as including a county. Section 53051 provides:
'A local agency is liable for injuries to persons and property resulting from the dangerous or defective condition of public property if the legislative body, board, or person authorized to remedy the condition:
'(a) Had knowledge or notice of the defective or dangerous condition.
'(b) For a reasonable time after acquiring knowledge or receiving notice, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.'
These sections created a liability unknown to common law, and are to be strictly construed against the claim of plaintiffs (Whiting v. City of National City, 9 Cal.2d 163, 165, 69 P.2d 990), and the question as to the extent of the duties which are imposed by the statute is one of law, to be determined by the court and not one of fact for the jury. Campbell v. City of Santa Monica, 51 Cal.App.2d 626, 629, 125 P.2d 561. It is for the court to determine whether the cited statute, which is the measure of the waiver of governmental immunity, encompasses the liability which plaintiffs seek to impose and whether plaintiffs' allegations constitute a cause of action against the defendant county. Stang v. City of Mill Valley, 38 Cal.2d 486, 490, 240 P.2d 980.
In the instant case there are no facts stated in the complaint indicating that the lake involved was dangerous in its physical construction or intended use and appellants maintain that the failure of the defendant county to promulgate and enforce rules and regulations governing the operation of motor boats on said lake constitutes a dangerous or defective condition of public property. We are not in accord with this contention. While it is the rule that a defective or dangerous condition can be created by the use or general plan of operation of government operated property, as...
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