Warden v. City of Los Angeles

• Citation: 530 P.2d 175,118 Cal.Rptr. 487,13 Cal.3d 297
• Court: United States State Supreme Court (California)
• Decision Date: 13 January 1975
• Parties: , 530 P.2d 175, 1975 A.M.C. 970 Lew WARDEN, Jr., Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant. L.A. 30294. In Bank

Page 487

118 Cal.Rptr. 487

13 Cal.3d 297, 530 P.2d 175, 1975 A.M.C. 970

Lew WARDEN, Jr., Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

L.A. 30294.

Supreme Court of California,

In Bank.

Jan. 13, 1975.

Roger Arnebergh and Burt Pines, City Attys., George J. Franscell and John T. Neville, Asst. City Attys., for defendant and appellant.

Olney, Levy, Kaplan & Tenner, Richard Devirian, Los Angeles, and Lew Warden, Jr., in pro. per., for plaintiff and respondent.

MOSK, Justice.

Plaintiff filed an action against the City of Los Angeles, alleging that he had suffered personal injuries and property damage when his sailboat struck a submerged sewer pipe constructed and maintained in Santa Monica Bay by the city. The trial court, sitting without a jury, found for plaintiff and awarded him damages in the amount of $6,416. On this appeal from the ensuing judgment, the primary issue is whether the city was negligent in failing to request the Coast Guard's permission to install visible and audible aids to warn mariners of the hazard caused by the submerged pipe.

On June 24, 1967, plaintiff and several others were proceeding in the sailing yacht Sandido from San Francisco to Los Alamitos in heavy fog. Shortly after 2 a.m. the vessel struck the sewer pipe, which lay only 2.2 feet below the surface at low tide. The Coast Guard was summoned and towed the disabled vessel to safety. The vicinity of the pipe was marked by two 'red nun' buoys which were unlighted and had no audible signals. The pipe was not marked as an obstruction on the charts of Santa Monica Bay issued by the United States Coast and Geodetic Survey.

The pipe had been constructed by the city in 1949 as an outfall for the city's Hyperion Sewage Treatment Plant. Three other pipes, installed for the same purpose in 1925, 1957 and 1959, were submerged under the seabed, but the sewer pipe which caused the accident protruded into the waters of the bay. The federal government exercised jurisdiction over the navigable waters of the bay at the time the sewer pipe was installed, and the city was required to and did obtain its authorization for the installation. In connection with the construction, the city inquired of the Coast Guard whether it was advisable to provide a whistling buoy to warn mariners of the pipe. The Coast Guard specified the two unlighted and inaudible buoys, but added that when a nearby marina commenced operations, a lighted sound buoy might be required. The marina, located two miles from the sewer pipe, was constructed in 1965, and small boat traffic in the vicinity increased substantially. The city owned and maintained the buoys.

In May and June 1964 three small craft struck the sewer pipe. An employee of the city mentioned the incidents to the chief of the Coast Guard's navigation aids office and inquired whether lights, bells or whistles should be placed near the pipe as a warning to mariners. The officer replied that the markings then in existence were 'entirely adequate' and that 'no benefit would result from the buoyage using lights or sound in addition to the markings of the present units.'

The trial court recognized in its findings that the Coast Guard has exclusive authority to specify navigational aids and that the city had no authority to warn mariners about the danger posed by the pipe without that agency's approval. The court found, however, that the pipe and the unlighted buoys constituted a dangerous condition because of the absence of visible or audible aids, that the danger was exacerbated because the city negligently failed to formally advise the Coast Guard of the details of the damage to vessels which had previously struck the pipe or to report the inadequacies of the warning system, and had failed to seek authority to install a more comprehensive warning system. The court also found that the city should have known that the pipe was not marked on the charts of the Coast and Geodetic Survey as a menace to navigation, and was negligent in failing to advise the appropriate authorities of this fact. ¹

Government Code section 835, subdivision (b), provides that a public entity may be liable for injury caused by a dangerous condition of 'its property' if it had notice of the condition and sufficient time prior to the injury to have taken measures to 'protect against' the condition. The term 'property of a public entity' is defined as property owned or controlled by the entity (§ 830, subd. (c)), and 'protect against' includes warning of the dangerous condition (§ 830, subd. (b)).

The city does not deny that the sewer pipe posed a hazard or that it was aware of the danger created thereby. Indeed the record is clear that the city placed the pipe near the surface although it could have submerged it for safety purposes, as was done with other installations....