SALLY RENDAK et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents.
Civ. No. 26768
First Dist., Div. Three
June 22, 1971
18 Cal. App. 3d 286
Boccardo, Blum, Lull, Niland, Teerlink & Bell, Edward J. Niland and Stanley A. Ibler, Jr., for Plaintiffs and Appellants.
E. Robert Wallach and William B. Boone as Amici Curiae on behalf of Plaintiffs and Appellants.
Thomas C. Lynch and Evelle J. Younger, Attorneys General, Robert L. Bergman and Wayman M. Robertson, Jr., Deputy Attorneys General, for Defendants and Respondents.
DRAPER, P. J.-This wrongful death action was tried against defendant state only. Nonsuit was granted at the close of plaintiffs’ case and plaintiffs’ aрpeal from the ensuing judgment.
The state owns and operates Brighton Beach Park in Santa Cruz County. The park includes some 64 acres. Administrative offices, staff residence, a parking area and other incidental facilities are locаted on a plateau well above the beach. Below, along the ocean front, is an area of sandy beach which is the principal recreational attraction. West of the sandy beach, but still within state ownership, is a finger оf land which runs beneath a steep cliff rising some 72 feet above the water. At high tide, this finger is wholly submerged, but at lower tides becomes a narrow strip of wet land.
At its easterly end, where the beach area ends and this narrow finger begins, is a sign reading “Submerged аt High Tide,” and another reading “Slide Area.” The cliff and the narrow finger below it extend to the westerly limit of the state park. Along the sandy beach to the east, the only improvements are rest rooms and some “fire rings“-circles of concrete set in the sand for building of fires. A rest room appears to be the nearest improvement to the site of the fatal accident here involved, and it is some 650-900 feet from the accident site.
The Rendaks were visitors from out of state. On July 16, 1967, the family wеnt to the beach with friends. Decedent and the other three men
The motion for nonsuit was made and granted upon two grounds. We need consider but one of these, the absolute immunity granted by Government Code section 831.2.1 That section provides: “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.”
Appellants’ argument, both to the trial court and here, is that the existenсe of improvements in a public park excludes the entire park, including wholly unimproved areas thereof, from application of
This conclusion disposes of the argument advanced by counsel. The dissenting opinion, however, turns upon a view not advanced-that the record here raises a question of fact for jury determination as to whether the unimproved danger area is “within and can be said to be a part of the
Judgment affirmed.
Caldecott, J., concurred.
BROWN (H. C.), J.-I dissent.
I agree with the majority of this court that the sufficiency of the evidence of either actual or constructive notice of the dangerоus condition of the cliff is an issue for the jury.
I disagree only with the holding that as a matter of law the evidence conclusively disclosed that Rendak‘s death was caused by a slide of land in its natural condition on an unimproved area of the park so as to come within the immunity provisions of
It is to be noted at the outset that when reviewing a judgment after nonsuit the appellate court “must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can reasonably be drawn which are favorable to the appellant.” (Sperling v. Hatch, 10 Cal.App.3d 54, 57; Golceff v. Sugarman, 36 Cal.2d 152, 153.)
This statutory immunity has not as yet been interpreted by any court. The legislative committee comment is quoted as follows: “This section [
Appellants and the state urge opposite views on the question as to whether the park improvements extend to that particular part of the park where the accident occurred.
The state cites Van Alstyne, California Government Tort Liability, which suggests that even an improved beach (with comfort stations, parking facilities, etc.) may have natural property containing hazards undisturbed by the improvements which are nonactionable.
To support his contention that the entire beach portion of the park, including the cliff area, should be considered improved, appellants cite cases where property was considered improved for certain purposes when only a portion was actually improved. (Hopkins v. Roach, 127 Ga. 153; Builders Land Company v. Martens, 255 Iowa 231.)
Appellants’ position could lead to the situation wherein the immunity of
The state‘s position, however, could also lead to an unreasonable situation wherein the state would not be liable for injuries occurring from any
It is to be particularly noted that
To avoid the extremes which would result from following the theory of either thе state or the appellants, we adopt the view that whether the natural condition which caused the accident is a part of the improved area or falls within the immunity provisions of
When an area has been improved, it must be detеrmined by the trier of fact whether the natural hazard is within and can be said to be a part of the improved area unless the evidence is so clear that it can be said as a matter of law that the issue is one for the trial judge. The New Brighton Beach Park is not an area with primitive or pristine conditions distant from improvements. It is a relatively small parcel that has been improved as a recreational area. The improvements that may be put on a beach arе necessarily limited as it is the beach and ocean, rather than a structure, that is sought for recreation. The improvements here, for which an admission fee was charged, are adequate for a beach and may be termed imprоvements. There were the barbecue pits, rest rooms, garbage disposal facilities and signs which permitted patrons to walk near the cliff but gave warning of the danger. The entire beach, including the cliff area, was within the inspection zonе protected by the supervision of state employees. There was ample evidence to support a finding that the cliff area was part of improved property.
It is, therefore, concluded that there was sufficient evidеnce to submit to jury determination the issue of (1) whether there was actual or constructive notice of a dangerous condition, and (2) whether the hazardous cliff was a part of the improved area so as not to come within the provisions of
I would, therefore, rule that the judgment following the grant of the nonsuit be reversed.
A petition for a rehearing was denied July 22, 1971. Brown (H. C.), J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied September 2, 1971. Peters, J., was of the opinion that the petition should be granted.