Opinion
A Fremont cottonwood tree fell on plaintiff Dwight Meddock while he was in a paved parking lot located in a park along the Sacramento River owned by defendant County of Yolo (County). The trial court granted summary judgment against Meddock and his wife (collectively, Meddock) in their tort suit alleging a dangerous condition of public property, by applying statutory immunity for injuries “caused by a natural condition of any unimproved public property.” (Gov. Code, § 831.2, hereafter section 831.2.) As we will explain, we conclude that Meddock’s injuries were “caused by” a “natural condition” of unimproved property where the tree grew, and the fact the tree fell on the improved portion of the public property does not take this case outside the ambit of the immunity.
Accordingly, we shall affirm the judgment in favor of the County.
FACTUAL AND PROCEDURAL BACKGROUND
The Pleadings
This case involves the Government Claims Act (Gov. Code, § 810 et seq.; see
City of Stockton v. Superior Court
(2007)
*174 The operative complaint alleged that on March 21, 2009, Meddock was injured when a tree fell on him while he “was lawfully upon an improved portion” of public property, specifically, “the parking lot of Elkhom Boat Ramp.” He alleged “many of the trees on the premises ... are leaning away from the river, toward and over the parking lot of the above described premises. Some of these trees are diseased [or] have parasites such as mistletoe, causing them to constitute a dangerous condition of public property. The [accident] occurred as a result of a dead tree, which was visibly dead due to the absence of bark in many places . . . .” Meddock alleged that the County failed to maintain the trees properly and failed to warn users of the lot that they were dangerous.
The answer admitted the County owned “Elkhom Regional Park” and the trees therein, denied the County owned the boat ramp, admitted some of the park’s trees “bear mistletoe,” but otherwise denied the allegations, and alleged as one affirmative defense the section 831.2 immunity for “natural” conditions. 1
The Motion for Summary Judgment
The County’s separate statement of six undisputed facts established that Meddock had been at the park—along the Sacramento River—to “go boating” in recreational use of the park facilities, which included a parking lot, boat ramp, restroom, and picnic area. While Meddock was in the parking lot, one cottonwood tree fell on another, causing tree limbs to fall, hurting him. The County argued the natural condition immunity barred the action. The County did not argue it should not have known these trees were in danger of falling.
The Opposition
Meddock did not dispute the County’s facts. Meddock proffered the additional fact that “some of the trees adjacent to the area where” his “truck and boat were parked were leaning over the parking lot” and some of these trees were infested with mistletoe.
The Hearing, the Trial Court’s Ruling, and the Appeal
At the hearing, Meddock’s counsel disclaimed reliance on the theory that the pavement contributed to the injury, for purposes of summary judgment. *175 And Meddock did not argue that the County poorly pruned the trees, rather than letting them decay, so as to cause a nonnatural danger, or exacerbate a natural danger. 2
The trial court granted summary judgment, finding that Meddock’s injuries were “caused” by the trees on unimproved property. The trial court also made the policy observation that imposing liability might cause the County to close the parking lot, thereby cutting off convenient access to the river and forest areas.
Meddock timely appealed from the ensuing judgment.
DISCUSSION
I
Summary and Standard of Review
The parties agree on the essential facts, but draw different legal conclusions therefrom. 3 Meddock posits that because he was using improved public property for its intended purpose when he was injured thereon, section 831.2 immunity does not apply. The County posits that because the injury was “caused by a natural condition” of unimproved public property, the immunity does apply. We agree with the County.
In reviewing a defense summary judgment, we apply the traditional three-step analysis used by the trial court, that is, we (1) identify the pleaded issues, (2) determine if the defense has negated an element of the plaintiff’s case or established a complete defense, and if and only if so, (3) determine if the plaintiff has raised a triable issue of fact.
4
(See
Aguilar v. Atlantic Richfield
*176
Co.
(2001)
The County incorrectly asserts that we must construe evidentiary gaps in its favor. The general rule that we must draw reasonable evidentiary inferences in favor of the judgment (see, e.g.,
Denham v. Superior Court
(1970)
II
Law and Analysis
We first consider whether—viewing the facts in the light favorable to Meddock—the County breached a duty of care to him, then we consider the immunity question. (See
Ladd v. County of San Mateo
(1996)
“The [Government] Claims Act provides that ‘[e]xcept as otherwise provided by statute,’ ‘[a] public entity is not liable for an injury.’ (Gov. Code, § 815.)”
(Teter v. City of Newport Beach
(2003)
*177
Here, the County evidently paved the parking lot and made related improvements to help people launch boats on the Sacramento River. The County thereby assumed liability for a dangerous condition of the parking lot, provided it had notice and time to correct it. (See Gov. Code, §§ 830, subd. (a), 835;
Low v. City of Sacramento
(1970)
We construe statutes “according to the usual, ordinary import of the language employed in framing them.”
(In re Alpine
(1928)
The statutory immunity extends to “an injury
caused
by a natural condition of any unimproved public property.” (§ 831.2, italics added.) The use of the term “caused” is significant.
(Knight v. City of Capitola
(1992)
In
Ladd,
our Supreme Court construed the phrase “caused by” as set forth in a provision granting immunity for any injury “caused by” an escaping prisoner. (Gov. Code, § 845.8, subd. (b)(1).) The court rejected the claim that the immunity extended only to injuries
to others
caused by an escapee: “Section 845.8 uses broad terms to provide immunity for ‘[a]ny injury caused by’ an
*178
escaping prisoner. Nothing in the statutory language suggests an exception for injuries caused by a prisoner to herself. No apparent purpose would be served by such an exception.”
(Ladd, supra,
Thus, the term “caused by” is to be read in its ordinary sense. Accordingly, the County’s interpretation of section 831.2 is manifestly plausible.
In contrast, Meddock posits that the statute applies where the
location
of the injury is improved. He presents a chart listing a number of cases he argues apply the statute to improvements located much farther away from the injured party than in this case, where no distance separated the location of the accident from the improvement. The County responds that, in those cases, the improvements bore no causal connection to the injuries. We agree with the County that the immunity does not turn on location, as Meddock himself elsewhere appears to concede. Proximity may
inform
causation, but is no substitute therefor. “Significance should be given, if possible, ‘to every word, phrase, sentence and part of an act.’ ”
(Mercer v. Perez
(1968)
In another case emphasized by Meddock, one court, quoting Professor Arvo Van Alstyne, the lead drafter of the Government Claims Act, stated, “to qualify public property as
improved
so as to take it outside the immunity statute ‘some form of physical change in the condition of the property
at the location of the injury,
which justifies the conclusion that the public entity is responsible for reasonable risk management in that area, [is] required to preclude application of the immunity.’ ”
(Eben
v.
State of California
(1982)
Commenting generally on a proposed immunity for “undeveloped” park and recreation land, Professor Van Alstyne gave the following opinion: “The crux of the matter evidently lies in the definition of ‘undeveloped.’ What is here intended by that term is those portions of public lands intended for recreational uses which are presently being held in their natural state, without substantial artificial improvements or changes except to the extent that such changes are essential to their presentation and prudent management (such as firetrails and firebreaks, roads for prudent lumbering for conservation purposes, projects for reforestation of burned areas, and the like). In short, areas which are ‘developed’ by cutting of roads and sidewalks, construction of buildings, vehicle parking areas, camping sites with stoves, running water, sanitary facilities, garbage service and organized recreational activities, or which consist of playgrounds, golf courses, picnic tables and other typical recreational facilities characteristic of municipal parks, would be excluded from the scope of this suggested immunity and presumably would be covered by the [former] Public Liability Act (or its successors). The distinction between the ‘developed’ and the ‘undeveloped’ sectors of a park might well be difficult to identify in terms of boundary lines on a map, and might have to be treated as a question of fact . . . .” (A Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 495-96, italics added.) In another comment, Professor Van Alstyne observed as follows: “The State . . . owns vast acreages that are unimproved and unoccupied. There should be an absolute immunity from liability for any condition of such property until it has been improved or occupied.” (Recommendation Relating to Sovereign Immunity (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 824, italics added.)
Although these passages can be read to refer to the location of the injury, rather than its cause, they were general, and do not raise any plausible ambiguity within section 831.2 itself. In contrast, a relevant legislative commentary reads as follows: “This section provides an absolute immunity from liability for injuries resulting from a natural condition of any unimproved public property. Thus, for example, under this section and Section 831.4, the State has an absolute immunity from liability for injuries resulting from natural conditions of a state park area where the only improvements are recreational access roads (as defined in Section 831.4) and hiking, riding, fishing and hunting trails, [f] This section and Section 831.4 continue and extend an existing policy adopted by the Legislature in former Government *180 Code Section 54002. It is desirable to permit the members of the public to use public property in its natural condition and to provide trails for hikers and riders and roads for campers into the primitive regions of the State. But the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use. In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property in its natural condition to assume the risk of injuries arising therefrom as a part of the price to be paid for benefits received.” (1964 Ann. Rep. (Dec. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 232, italics added; see Sen. Com. on Judiciary, Rep. on Senate Bill No. 42 (1963 Reg. Sess.) 2 Sen. J. (1963 Reg. Sess.) p. 1891.)
This passage correctly spoke of injuries “resulting from”—meaning “caused by”—natural conditions of public property. The former statute referenced in this comment provided immunity for injuries “caused by accidents on bridle trails.” (Stats. 1949, ch. 81, § 1, pp. 256, 300; see Stats. 1943, ch. 940, § 1, pp. 2812-2813.) The new statute was designed to “ ‘continue
and
extend’ ” the prior limited immunity, and therefore “the Legislature did not intend a narrow construction of’ section 831.2.
(Fuller
v.
State of California
(1975)
We also observe that three cases involving falling trees—including one out-of-state case cited by the County—are wholly consistent with our view.
In
Milligan, supra,
Imposing liability in this case would thwart the policy of reducing the probable cost to a public entity of making improvements to public land, as the trial court observed.
We also find guidance stemming from a case decided
before
the adoption of the Government Claims Act,
Smith v. County of San Mateo
(1943)
We also refer to a Pennsylvania case involving a model recreational immunity statute as interpreted to extend only to land that was “largely unimproved.”
(Redinger v. Clapper’s Tree Service, Inc.
(1992)
Finally, Meddock asserts the County is liable for failing to warn of dangerous trees and creating a “hidden trap” by inducing people to use the lot despite the danger. The “trap” theory is forfeited because it was not raised in the trial court. (See
Saville
v.
Sierra College
(2005)
Because Meddock’s injuries were caused by decaying natural trees located on unimproved property, the County is immune from liability therefor. (§ 831.2.)
*183 DISPOSITION
The judgment is affirmed. The Meddocks shall pay the County’s costs of this appeal. (See Cal. Rules of Court, rule 8.278.)
Butz, Acting R J., and Murray, J., concurred.
Appellants’ petition for review by the Supreme Court was denied December 11, 2013, S213893.
Notes
Section 831.2 provides in full as follows: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.” (§ 831.2; Stats. 1963, ch. 1681, § 1, pp. 3266, 3273.)
These possible theories are not briefed on appeal and therefore we deem them to be abandoned. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769 (Witkin).)
Both parties make factual assertions that are not supported by citations or by the summary judgment papers. Although' we generally disregard unsupported assertions (see
Duarte v. Chino Community Hospital
(1999)
Quoting the generality that “doubts” about summary judgment should be resolved against granting it (see, e.g.,
Hamburg
v.
Wal-Mart Stores, Inc.
(2004)
Thus, that Meddock did not explicitly show the trees that fell were either diseased or superjacent to the parking lot is immaterial to our consideration of this appeal.
Our Supreme Court has previously characterized the effect of the Government Claims Act as follows: “In
[Muskopf v. Corning Hospital Dist.
(1961)
The trial court took judicial notice of the fact that Fremont cottonwoods are native to California, that is, they are “indigenous flora” as the County describes them.
We have previously relied on Professor Van Alstyne’s reports and legislative commentary in interpreting ambiguous provisions of the Government Claims Act. (See, e.g.,
Osgood v. County of Shasta
(1975)
Meddock’s discussion of a separate immunity, Government Code section 831.4, which “provides immunity under certain conditions for injuries due to the condition of trails and certain roads providing access to unimproved property”
(Milligan, supra,
The
Milligan
court added: “In accordance with the purpose expressed in the legislative comment, we conclude that
while the natural condition immunity may be applicable when the decayed tree limb falls on a user of the governmental property,
it is not applicable when the limb injures adjacent property or persons on adjacent property because there is no danger that the governmental agency will close the property to use.”
(Milligan, supra,
