Stuart v. Crestview Mut. Water Co.

• Decision Date: 25 October 1973
• Citation: 34 Cal.App.3d 802,110 Cal.Rptr. 543
• Court: California Court of Appeals Court of Appeals
• Parties: Dan STUART et al., Plaintiffs and Appellants, v. CRESTVIEW MUTUAL WATER CO. et al., Defendants and Respondents, Cal-Farm Insurance Company, Intervenor and Appellant. CRESTVIEW MUTUAL WATER CO., a corporation, Cross-Complainant and Appellant, v. JENSEN ASSOCIATES, ENGINEERS, et al., Cross-Defendants and Respondents. Civ. 40456.

Page 543

110 Cal.Rptr. 543

34 Cal.App.3d 802

Dan STUART et al., Plaintiffs and Appellants, v. CRESTVIEW MUTUAL WATER CO. et al., Defendants and Respondents, Cal-Farm Insurance Company, Intervenor and Appellant.

CRESTVIEW MUTUAL WATER CO., a corporation, Cross-Complainant and Appellant, v. JENSEN ASSOCIATES, ENGINEERS, et al., Cross-Defendants and Respondents.

Civ. 40456.

Court of Appeal, Second District, Division 5, California.

Oct. 25, 1973.

Hearing Denied Dec. 19, 1973.

Heily, Blase, Ellison & Wellcome and DeWitt F. Blase, Oxnard, for plaintiffs and appellants.

R. W. Levy, Franklin J. Mitchell, Jr., Jim D. Mills, Fresno, for intervenor.

Lascher & Rader, Ventura, for plaintiffs and intervenor.

Wise, Kilpatrick & Clayton, Inc., and Sterling S. Clayton and William D. Easton, Long Beach, for defendant and cross-complainant Crestview Mutual Water Co.

Reilly, Holzhauer & Nimmo and Albert J. Holzhauer, Los Angeles, for defendant and respondent, Janss Investment Corp.

James E. Dixon, Ventura, for defendant and respondent, Jensen Associates, Engineers.

KAUS, Presiding Justice.

Plaintiffs and appellants Stuart and Norbury ('property owners') own property in Camarillo. In September 1970, a fire burned the Stuart's home to the ground and destroyed avocado trees on the Norbury's property. The property owners sued Crestview Mutual Water Company ('water company'), for breach of a contract to furnish water and negligence in maintaining and operating the water system, Janss Investment Corporation ('developer') and Jensen Associates ('engineers') for negligence in designing, engineering and constructing the water system. Various demurrers, motions for judgment on the pleadings or for summary judgment were filed by the defendants. All such motions were granted by the trial court, which gave judgment in favor of all the defendants involved in this appeal. ¹

As is apparent, (see fn. 1, Supra) procedurally this case is a Chinese puzzle. Actually, however, the legal issues involved boil down to whether or not plaintiffs should have been permitted to file a first amended complaint. It is clear that the trial court would have given leave to file it, had it felt that it stated a cause of action against any defendant. ²

The proposed first amended complaint alleged these background facts: Crestview, the water company, which was incorporated in 1950, owned, managed, maintained and operated a water distribution system; the system was designed, engineered and constructed by Janss, the developer, and Jensen Associates, the engineers.

Jensen Associates are in the business of designing, engineering and constructing water development systems, and knew and intended that the water distribution system would be used to supply water for fire protection services for persons such as plaintiffs who lived in the Crestview water area.

Janss is in the business of developing residential property, and, as part of the business operations, directed the design, planning and layout of the water distribution system, and hired engineers to design and construct it. Janss transferred the water system to Crestview, knowing and intending that, among other purposes, the system would be used for fire protection, and that the system would be used without opportunity for inspection by the users.

On September 26, 1970, there was a fire which spread towards plaintiffs' properties. Because the supply and flow of water from the water system was inadequate, plaintiffs were unable to protect their properties from the spreading fire. As a result they suffered substantial damages.

Allegations intending to fasten liability for the loss on the three defendants, the water company, the developer and the engineers, are set forth below.

Liability Of The Water Company

Three of the causes of action which plaintiffs attempt to state are directed against Crestview, the water company. They proceed, respectively, on theories of negligence, failure to comply with certain standards established by the supervisors of Ventura County in 1965, and breach of contract.

Plaintiffs concede, as indeed they must, that under an unbroken line of cases starting with Ukiah v. Ukiah Water and Imp. Co., 142 Cal. 173, 75 P. 773 and ending, perhaps with Heieck and Moran v. City of Modesto, 64 Cal.2d 229, 49 Cal.Rptr. 377, 411 P.2d 105, California case law has immunized water companies from civil liability for loss by fire due to failure to maintain their systems properly. ³

It is, literally, hornbook law that this immunity represents an aberration in the context of modern tort principles. (Prosser, Law of Torts, (4th ed.) pp. 625--626.) ⁴

Rational attacks on water company immunity can be made on at least three distinct grounds.

1. First and foremost it is arguable that if section 1714 of the Civil Code, as interpreted in Rowland v. Christian, 69 Cal.2d 108, 118--119, 70 Cal.Rptr. 97, 443 P.2d 561, can sweep away judicially created immunities which have favored possessors of real property, it can, or indeed must, affect other immunities.

2. A close reading of California cases seems to support the argument that we have reached the present state of the law by a paradox: one of the reasons given in the cases for immunizing water companies is that they are really performing a municipal function and that the water company 'cannot be charged with a greater liability than the city itself.' (Ukiah v. Ukiah Water and Imp. Co., Supra, 142 Cal. at p. 178, 75 P. at p. 775.) Yet in Stang v. City of Mill Valley, Supra, 38 Cal.2d 486, 240 P.2d 980, the court continued to recognize the immunity in spite of the Public Liability Act of 1923, on the ground that the Legislature could not have intended, that public entities should be liable where private companies were not. (Ibid., p. 491, 240 P.2d 980.)

3. Several of the rationales which have been adduced in favor of water company immunity, have failed to evoke similar judicial response when considered in connection with other enterprises. (E.g., Hanlon D. & S. Co. v. Southern Pac. Co., 92 Cal.App. 230, 235, 268 P. 385 (railroads); compare Langley v. Pacific Gas & Elec. Co., 41 Cal.2d 655, 661, 262 P.2d 846 (electric company); with Gelhaus v. Nevada Irrigation Dist., 43 Cal.2d 779, 783, 278 P.2d 689 (water district).)

Nevertheless even after all these arguments are carefully considered, the question remains whether it is appropriate for an intermediate appellate court, to announce a holding squarely contrary to several Supreme Court authorities, directly in point. Our conclusion is that it would be improper for us to do so in this particular situation. The best we can do for plaintiffs is to note that the record adequately presents the issue for Supreme Court consideration. ⁵

As a separate cause of action plaintiffs plead that the water company knew or should have known that there was an extreme fire danger on or about September 26, 1970, but 'wilfully and deliberately' permitted large amounts of water to be withdrawn from its reservoirs and to be diverted to nonessential uses, such as watering a country club. While these allegations may, perhaps, point up the injustice of the established immunity of water companies, they really amount to nothing more than a specific pleading of negligence.

Plaintiffs' second theory against the water company is based on an alleged violation of certain standards established by a resolution of the Ventura County Board of Supervisors adopted in 1965. At our request a copy of the resolution in question was furnished to us by the parties. (Evid.Code, § 459.) It appears to be an approval, by the Board of Supervisors, of a recommendation of a department head recommending the publication of a revised Water Works Manual and referring a problem concerning the inclusion of 'dry' type of fire hydrants to the County Fire Department.

Even if water company immunity for common law negligence is subject to an exception based on violation of a statute or local ordinance, clearly a resolution to publish a 'Water Works Manual' at some time in the future, does not suffice to raise the issue.

As noted earlier (see fn. 2 Supra) plaintiffs' original complaint contained a cause of action, directed against the water company, based on express contract. Whether or not it was inadvertence which caused that theory to be omitted from the first amended complaint is really immaterial, since it has no merit. The contract on which plaintiffs apparently rely appears to be the statement of purposes in the articles of incorporation of Crestview which reads, in part, as follows: 'To furnish, supply and distribute water at cost to and for its stockholders for domestic irrigation, and other useful purposes . . .'

It is, however, established that 'a water company is not liable for damages resulting from a failure to supply water for a particular use in the absence of a specific undertaking to supply water for that use.' (Gelhaus v. Nevada Irrigation Dist., Supra, 43 Cal.2d 779, 782, 278 P.2d 689, 690.) Plaintiffs argue that fire extinguishing is a 'useful purpose' of water. So, to be sure, it is. The fact remains, however, that Crestview did not specifically undertake to supply water for that purpose.

To sum up: the first amended complaint does not plead facts constituting a cause of action against Crestview, the water company.

Liability of Developer And Engineers

The first amended complaint attempts to state causes of action against the developer and the engineers on the following theories: 1. negligence in the design, engineering, construction and maintenance of the water system; and 2. strict liability. ⁶

We first consider the cause of action for negligence. The complaint under consideration alleges in language more than adequate to withstand a general demurrer, that when the property was developed and before the water distribution system was turned over to Crestview, the developer and the engineers so negligently designed, engineered and...