*1 July 28, 1967.] F. 22504. Bank. No. [S. CABELL,
JOHN Appellant, ROGER Plaintiff and STATE CALIFORNIA, Respondent. OF Defendant and *2 Haradon Mclnerney & Dillon and M. Dillon Haley, Appellant. Plaintiff Attorney General, Bergman Robert L. Lynch, C. Thomas Attorneys Jr., Deputy General, for Sperry, M. Leonard Respondent.
Defendant Carlson and Harry Fenton, Robert F. Kenneth G. Nellis S. Respondent. of Defendant and on behalf Amici Curiae personal injury in BURKE, J. ap- Plaintiff this action summary judgment peals a in from favor of defendant State appear, As will we of the view of California. are that the trial apparent in its court was correct had conclusion that the State Accordingly, judg- established a defense action. ment must be affirmed. alleges complaint 1961 in his that December he Plaintiff College Francisco a student at San and while at- State push swinging dormitory tempting open glass door “slipped paneling
building his hand
from the side
and was
glass
door,
precipitated through the
not of
thereby
safety variety,”
injuring plaintiff;
that his in-
juries
2negligently designed,
were caused because defendants1
operated
glass
constructed,
in the
and maintained
doors
dormitory.
in an
answer
Defendant State
amendment
its
upon
830.6 of
Government
alleges,
reliance
Code,3
plan,
standards
dormitory building for
the State
who constructed
1 Tlie сontractor
appeal
joined
No
has been taken
was also
as a defendant.
California
summary judgment granted in favor of the contractor.
employee is
nor a
830.6:
2 Seetion
"Neither
[i.e.,
chapter
§§
for "an
this
830-840.6]
liable under
plan
to,
of,
prop
of a construction
approved
erty
has been
advance
152
involved
door here
were
Divi-
the State
employees
sion
exercising
of Architecture
State
dis-
cretionary
giving
approval.
authority in
mo-
Defendant’s
summary judgment
tion for
was based
the same defense.
part
830.6 is
3.6
Section
division
added
Govern
deal comprehensively
problem
ment Code
1963 to
tort
liability.
legislation,
1963
sometimes termed the
Act,
Tort Claims
can
constitutionally
applied
to causes of action which arose
date,
express
effective
accordance with
in
(Stats. 1963,
tent of the
stated therein.
1681,
ch.
(a)
City
;
& Moran
45. subd.
Heieck
(1966)
v.
Modesto
64
§
229,
Cal.Rptr. 377,
;
231-232
411
County
Cal.2d
P.2d 105]
[49
Angeles
Superior
(1965)
Los
Court
62
Cal.2d
844-
Cal.Rptr.
;
846
402
796
v. City
see also Teall
[44
868]
Cudahy (1963)
Cal.Rptr. 869,
sound basis exists for in differentiating respect, this with at inequality, arising tendant between causes out of so-called “proprietary” distinguished “governmental” as activ ities, or between based on and grounded those statute those (See by judicial Muskopf rules established decisions. Corn Hospital ing (1961) Dist. 211 Cal.Rptr. 89, Cal.2d [11 457].) except Section declares that provided by otherwise public entity injury statute a is liable for caused a danger- plaintiff ous condition of its if the establishes certain things, including notice of the condi- tion a sufficient protcc- time to have taken improvement by legislative body or eonstruetion of the body employee exercising discretionary authority or some other or give approval design plan prepared conformity or in or previously approved, appellate with so standards if the trial or court any determines that there is substantial evidence the basis of which (a) public employee adopted plan design a reasonable could have or (b) legislative body or the standards body or therefor a reasonable or other plan design or could have or or the stand- ’’ ards therefor. stated, 3 Unless otherwise all section references hereinafter are to the 1963 Tort Claims Act in as found the Government Code. part chapter Section 835 is a of the which tive measures. plan design applies, or defense of which is (ante, 2) upon by in found section 830.6 fn. relied de- fendant. immunity, explained by The rationale of this the Cali- (Recommendation Relating
fornia Law Revision Commission Sovereign Immunity 823) is: “There should be liability design for the improvements ap- where the has been proved by governmental agency exercising discretionary authority, proval. juries ap- unless there is no reasonable basis for such рroper While it is to hold in- entities liable for by arbitrary discretionary authority abuses of planning in improvements, permit in reexamination tort litigation particular discretionary decisions where reason- may able men differ as to how discretion should be exer- great impolitic cised would danger create too interference with decision-making the freedom of those officials making whom the function of such decisions has been (See Alstyne. Van vested.” California Li- Government Tort (Cont. ability p. 217.) Bar 1964) Ed. Further. “The reason- adoption approval ableness plan, or stand- adoрtion ards is approval measured as of the time the occurred. A judged now to have been reason- though able when is not even actionable defective wholly nature present is considered unreasonable under cir- (Id. p. 556.) cumstances and conditions.” supporting opposing From the declarations filed respect summary judgment to defendant’s motion this appears glass through plaintiff’s case which hand pane swinging lavatory thrust was a fifth-floor door dormitory plaintiff of a paying State-owned which was a specifications dormitory, Plans resident. including lavatory glass therein, prepared and the. were doors Architecture, study, staff the State Division after and there approved by Architect, after Board, the State the State Public AVorks Department and in November 1958 the State glass, thick, inch Public AVorks. “Obscure” % doors, specified installed, type for the and was injured. door here involved at the time enclosing wide; *4 wooden inches on the frame plate frame was a metal inches wide which “was the stand ’’ type swing. According ard used on wooden doors that deputy plans architect, declaration state at the time specifications and proved dоrmitory adopted ap- for the were type glass use of this in “the of door buildings, including dormitories, rooms, for entrances to toilet widespread. in was used restroom that doors so [It] persons approaching silhouettes of . opposite . . direc- visible, tions eliminating would thus the hazard of a colli- glass sion. safety prevent Wire was sometimes used fire glass dropping out of its frame the event a fire. glass actually Wire strength against imbedment reduces glass breakage, specified and the and used the door [here] strong involved glass ... twice as as the same thickness of ’’ with wire in it. imbedded appаrent It is thus that there substantial evidence public employee the basis of which a reasonable could have adopted lavatory or standards for the doors, including glass, body a reasonable approved them, and accordingly could have defendant State established its under section respect (ante, 830.6 fn. with 2) originally as door planned and constructed. However, summary judgment declarations fur early ther that as as disclose December 1960 another student injured glass had been when lavatory in a sixth-floor door dormitory given way had and broken when he had in tempted at n push оpen approximately the door month one injured allegedly December 1961 before glass plaintiff’s door involved in accident had shattered pieces and broken into when a arm student’s had come in it, replaced by contact with and had college been mainten department type glass originally with the same ance installed; glass pane lavatory in another door the same dormitory floor of the had also about a broken month before plaintiff’s accident. type glass originally Plaintiff contends that in had replace stalled thus been shown to be and that glass type ment of the broken originally same used constituted maintenance condition defend or design immunity ant State to does not apply. persuaded We are that there is no merit in this conten hereinabove, tion. As noted is to be judged approved. as of the time it was If replaced glass had the broken not been at all but instead had sharp pieces jagged door, been left with still or if it replaced originally used, to that inferior
155 not met with dangerous condition could be charge then here, when, design But the mainten- plan or defense. original plans specifica- conformity anсe was play. immunity provided by 830.6 comesinto tions, section respect immunity applies to ordi- with holding that the. Our is, public property course, maintenance of nary routine new in which reconstruction or distinguished from a situation showing and in which of reason- engaged is plan adoption of the or to the time of relate ableness should new construction not 1o design reconstruction or for such plan design. adoption original or time of Cali- summary judgment in of defendant State of favor The is affirmed. fornia J, J., McConib, Sehauer, J.,* Draper, J.,
Traynor, C. pro tem.,† concurred. PETERS, J. I dissent. interpretation 830.6 оf the of section Government demonstrably majority opinion is erroneous. The Code many dealing is one statutes section but drafted Law Revision Commission after years adopted by Legis study. 830.6was several Section exactly by the as recommended commission. latter
lature
interpretation
proposed
expressed
language as fol
of its
lows:
immunity provided by
830.6 is similar to
“The
judicial
public
granted by
that has
decision
been
Fote,
7 N.Y.2d
New York. See Weiss
entities
(1960).”
409,167 N.E.2d
N.Y.S.2d
Thus,
are told that
intent
in no uncertain
we
terms
sitting
assign
Supreme
Court
under
* Retired Associate Justice
the Judicial Council.
ment
the Chairman of
† Assignеd by
Council.
the Chairman of the Judicial
provides:
of the Government Code
1 Seetion 830.6
employee
entity
public
nor a
this
“Neither
liable
design
of,
chapter
plan or
of a construction
for an
design
improvement
to,
plan or
where such
has been
or an
approved
legisla
improvement
or
in
of the
of the construction
advance
body
body
emplo3'ee
or
other
or
exercis
some
tive
ing
discretionary authority
give
approval
plan
or
or
conformity
previously
approved,
design
prepared
with standards
so
any
appellate
there is
if the trial or
court determines
(a)
public employee
the basis of
a reasonable
could
evidence
have
design
(b)
the standards
therefor
rea
legislative body
body
other
sonable
could have
or the standards
therefor.”
Fote, supra
adopt
Weiss
the section
the rule of
crystal
immunity granted
makes it
clear that
That case
apply
negligent
intended
agency
maintenance after the
notice
situation. That is the
has created
instant case.
supra,
Fote,
city
In Weiss v.
claimed that a
negligent
stop
because
“clearance interval” on
signs was
appeared
too short. It
stop
installation of the
signs in
city agency
study
had
amade
condi
traffic
intersection,
lights
tions at the
that the traffic
de
signed by
agency, and that
showing
any
there was no
years
other
elapsed
accident
the more than three
which had
lights.
since the installation of the traffic
The court held that
*6
legally
body
powers
a
since
gated
authorized
the exercise of
dele
‘'
’’
it had
determined that the clearance interval was
proper,
jury
permitted
a
should not be
that it
determine
improper.
But the court was most careful to limit the
"
scope
immunity
of the
conferrеd. It
And in
stated:
Eastman
York,
56],
v. State New
where a authorized judgment approved the for a expert of public improvement, its preferred judgment over that its is to be something than a mere choice between jury, more govern expert opinions required conflicting before entity may discharge charged with a failure to mental (Weiss Fote, public. supra, 167 N.E.2d protect duties Rep. 823.) Revision Where the 66-67 ;see Cal. Law Com. perform charge to maintain is based of failure to operation shown acci the actual approval occurring subsequent to dents merely reweighing matters con design, jury agency when sidered and, showing in the absence of *7 or governmental agency reconsidered its the design gave light subsequent the of evidence that or the of dangerous condition, section 830.6 the Government to a rise preclude recovery govern at least where the Code not does dangerous remedy a agency mental hаs failed to condition danger ample after it learned the time to of 835.)3 (Cf. Code, correct it. Gov. § provides.- Code 3 Section 835 of the Government entity injury by statute, public "Except provided a is liable for property dangerous if estab- of its the caused lishes that a condition dangerous condition time of the was in a at the the dangerous injury, tion, injury proximately condi- was that reasonably dangerous foreseeable risk condition created either; (a) incurred, negli- injury A was of the kind of entity gent wrongful of or of an act omission condition; dangerous scope employment his crеated within the of 158 duty improvements to maintain dangerous free from recognized in
defects was Liability this under the state former Public providing liability injuries Act for due to dangerous public property. or defective condition of (E.g., County Angeles, Acosta 208, v. Los 56 seq. Cal.2d 210 et [14 of Cal.Rptr. 433, 473, 363 88 1417] ; P.2d A.L.R.2d Gibson v. County Mendocino, 80, 87-88 ; Cal.2d P.2d [104 105] of City Redlands, Torkelson Cal.App.2d 354, 358-360 Cal.Rptr. 899].) nothing language There is in the sec [17 830.6 tion of the Government Code that immunize would improve entities from their to maintain dangerous permit ments free from defects or that would them ignore, on the of a prior basis reasonable decision made improvеment, operation the actual anof improvement operation improvement where such shows the dangerous injuries. grave and to have caused Undoubtedly granted 830.6 extension dangerous entities for condition public improvements compared liability which exist prior (See ed under This its law. was intent. Law Cal. supra, Revision Rep., 851.) Com. Under the former Public Liability Act, it held in numerous cases that municipality in following plan adopted by governing body had dangerous condition, per itself created se culpable, notice, knowledge, and that lack of time cor City liability. not (E.g., rection were defenses to Fackrell v. Diego, 196, 625, San 26 Cal.2d 203-206 158 A.L.R. [157 657, ; Rafferty City Marysville, P. 207 Cal. 773] [260 ; Sully-Miller Contracting Co., Cal.App. Pritchard v. 118] seq. Cal.Rptr. 2d 830].) et It is clear that [2 abrogates by limiting enactment ability section 830.6 li this rule plan. This is change a substantial in the merely law. But it does follow that improve an because according approved plan, constructed ment standards, intended that no matter what might appear operation dangers from the actual usage improvement, public agency ignore dangers could liability merely and defects and be forever immune improvement ground reasonably regard knowlеdge pub when without entity currently lic has that and properly (b) had actual or constructive notice of the section 835.2 a condition under sufficient time to have ’ ’ protect against taken measures to condition. *8 defective, dangerous by- has become the used unwary. interpretation trap is so unreason for the Such by Legis it that it was intended that is inconceivable the able conjecture. Legislature here to The lature. But we are not left way point of its to out such was not its intent. went out Legislature support intended for view Further necessary, support is result, if further such unreasonаble no 830.6, like following section which appears from the sections section, comprehensive legislation part are of the that dealing govern- problem of drafted the commission succeeding immunity. immediately section, section The mental 830.8, providing that neither a nor warning provide failure to traffic employee is liable for nothing in this exonerates a signals, that section also states of a signals necessary to warn public entity if were certain endangered dangerous which the safe movement condition reasonably apparent to, and which would not be trаffic and exercising person due anticipated by, would not have been warning place not to determination of whether or care. The improve- any plan highway signals ordinarily part for is for ment,4 830.6 confers and if section operation regard and without the actual forever to granted limitation on the improvement, pointless and traps unwary would be 830.8 for for section reasonably only misleading. viewed limitation can be that will roads impracticable, 4 Of it is however course, conceivable, that as to whether or have built determinations plans without having signs warning discretionary no may be made persons place it that authority. would be absurd assume Nevertheless, in section exception mind these situations when included regard to the 830.8 of Government Code. Moreover with determina signs, majority warning in Becker in its tion opinion place that 43], indicate [60 Cal.Rptr. Johnston, post, p. warning signs immaterial. place consideration whether absence of observing majority eoncededly Becker while original state: condition of road created argues original “Although which [plaintiff] plans signs lighting warning Y inter- mention do not county relies should have been now items, [plaintiff ] сomplains section, omitted], accident [footnote in time her point at some provided admittedly contends was the hazard which she only in would serve to lessen designed, for ivas the manner which the intersection created ’ ’ immunity. which section 830.6 extends majority holding in Becker can be seem to be there In short signs warning failing condition for place no liability danger inherent in the road. of a road because the planned planned language in the section 830.8, Such an flies face approach reading out the latter exception effect section practicаl any whatsoever. purpose code recognition legislative that, providing *9 liability dangerous conditions, liability for there can be for signs. place warning failure to succeeding provision, The next shows even more 831. clearly Legislature contemplated that the that section 830.6 eternally public would dangerous immunize entities for public conditions improve- inherent provides public ments. Section 831 liable for shall not be ‘ ’ ‘ ’ injury by caused the effect of weather conditions highways, as such on and streets and states that the “effect” highways on the and use streets of weather for conditions purposes physical damage of the section does not include to or highways resulting deterioration of streets and from weather ordinarily highways conditions. planned and Streets are either public approved by entities, plans and the ordi- narily specify improvements. the materials to be used Although may unplanned there and be some streets some departed ap- streets where the from roadbuilders have proved plans, obviously situations are such so rare that Legislature would be unreasonable to assume that the intend- ed immunity apply the limitation in section tо them to and cording ordinary highways not to the streets ac- constructed plan. Legislature Thus contemplated must have liability planned that could there failure to maintain for highways streets and free from defects under section 835 and immunity that the provements conferred planned section 830.6 for im- preclude liability. would not forever Similarly, granting respect immunity section 831.8 conduits, reservoirs, canals, exception and drains contains an immunity persons age for of where certain Unplanned, undesigned unapproved are met.5 conditions provides: (d), 5 Seetion 831.8 of the Government Codе “ (a) Subject (e) public entity to subdivisions neither a nor chapter employee injury is liable under this for an caused injury injured person condition of was public entity reservoir if the time at using property any purpose for other than that for which the permitted property intended or to be used. “(b) Subject (c) (d), irrigation subdivisions neither an dis- employee employee trict nor an nor thereof the State nor a state is liable chapter injury canals, under this for caused the condition of con- duits drains for used the distribution of water if at the time of the person injured using property any purposе for other that than for which the district State intended it to be used. “(e) Nothing this section exonerates a or a liability injury proximatel.v dangerous from condition of if: “(1) injured person guilty was not of a criminal offense under reservoirs, conduits, canals, rare, and drains are so if not entirely nonexistent, that it would be unreasonable to assume exception that section 831.8 only appli improvements,6 cable to such and the must have contemplated liability conditions under sec planned improvements tion 835 could kind extend to named section 831.8 and that section 830.6 did not forever preclude liability. my view, Law report of the Revision Commission contemporaneously and the other code sections enacted show legislative adopting intent section 830.6 was to grant duty for breach and construct improvements conditions, free defective long totally so as the was not unreasonable, and that intent was not to immunize entities from their improvements maintain free such conditions. rely majority a textbook statement Profes Alstyne adoption sor Van ap the “reasonableness *10 proval plan, design, or standards is measured as of the adoption approval plan design time the or occurred. A or now 552) (commencing Article with Section of 12 of Title of Chapter entering using Part 1 of the Penal in Code on or the property; “(2) The condition a created and unreasonable risk of adjacent death bodily or serious harm when such or property property with due in used care a manner which it was fore- reasonably it would lie seeable used; “(3) dangerous The character of not the condition was reasonably and would not have apparent to, a anticipated by, reason- mature, using able person property carе; due ‘ ‘ (4) knowledge entity The public employee actual public dangerous of the condition and knew or should have known of its charac- injury ter a sufficient time to the to have taken measures to prior protect against the condition. “(d) Nothing entity this section exonerates or a public public injury dangerous from liability for caused proximately n of condition if: property injured “(1) age; The was less than 12 of person dangerous years “(2) The condition created a substantial and unreasonable age risk of death or using to bodily serious harm children under 12 years of adjacent propertj- with due care in a manner reasonably which it was foreseeable it would be used; “ (3) injured, The of because his did not person immaturity, discover dangerous or did not appreciate condition its character; “ (4) knowledge entity or the had actual public employee knew of the condition and ter a sufficient or should known its have of charac- time to have taken measures to protect against the condition.’’ injuries 6 A entity lias absolute from public, liability for (Gov. the natural condition of unimproved public property. 831.2.) § Code, judged have when not action been reasonable is though wholly defective nature is considered able even its present circumstances conditions.” unreasonable (Cont. Alstyne, Liability (Van Government Tort California p. 1964) 556.) should Ed. Bar The statement not be under meaning improvement is in that because conform stood ap when ity with a which was reasonable light changed liability can of proved, there never be conditions, conditions due to wear of the such as defective (cf. County Mendocino, supra, improvement Gibson of 87), becoming dangerous 80, because the Cal.2d conditions knowledge being entity used for is (cf. purpоses originally than intended Torkelson other those 354, 359). Redlands, City supra, Cal.App.2d finding precludes a statement defective changed circumstances and should not read to be based mean that liability from is be immunized including property, maintain breach of improvements, conditions under section free Tn any event the views Pro 835 of the Government Code. adoption Alstyne expressed subsequent Van fessor course, 830.6, are, conclusive, not shown section majority’s ease on them this refusal to follow issue Alstyne, retroactivity. (Cf. Liability Van Governmental Tort : Lawmaking Statutory (1963) Milieu in a Stan. Judicial 243-247.) L.Rev. exеmpted liability my view, condition, when it to maintain a 830.6 continues original but admittedly in accord dangerous. subsequent is shown to Plain- in its use alleges on the complaint door to a bathroom tiff’s negligently maintained, dormitory his fifth floor summary opposition affidavits filed motion dormitory, resident judgment show that board, per room paying semester for $415 *11 fifth floor doors on the dorm- portions both bathroom plaintiff’s within a few months acci- itory had shattered replaced, year glass and that a earlier had been and the dent floor the dormi- on the sixth glass a bathroom door injuries in this resulting but tory had broken glass replaced by reinforced with net glass had been case merely ques- than raise has done more mesh.7 Plaintiff replaced panel glass plaintiff’s wooden 7 After accident window. tion whether defendant’s initial determination to use the erroneous; the affidavits are sufficient to raise a question factual whether knowingly defendant negligent- ly premises maintained a condition on the which, use, repeatedly demonstrated itself as hazardous to the students. grant public Section 830.6 does not entities breach maintain, since there was evidence warranting before the trial finding court of breach of that duty, improper grant it was motion summary judg- ground ment on the that the action was barred 830.6. summary judgment should be reversed.
Tobriner, J., concurred. Appellant’s petition rehearing for a September was denied J.,* Schauer, Draper 1967. pro tem.,† J. place sat in Mosk, J., Sullivan, J., who deemed disquali themselves Peters, J., fied. and Tobriner, J., opinion were of the petition granted. should be July No. 7799. 28, 1967.] Bank.
[Sac. BECKER, Plaintiff, FRANK Cross-defendant Respond- ent, v. MARGARET JOHNSTON, JEAN Defendant, Cross-complainant and Appellant; COUNTY OF SAC- RAMENTO, Respondent. Cross-defendant and Supreme 'sitting * Retired Associate assign Justice of the Court ment the Chairman of the Judicial Council. † Assigned by the Chairman of the Judicial Council.