GRACE MARIE VATER, Appellant, v. COUNTY OF GLENN et al., Defendants; GLENN-COLUSA IRRIGATION DISTRICT, Respondent.
Sac. No. 6826
In Bank
Mar. 21, 1958
Rehearing Denied April 16, 1958
815-825
In view of my conclusion that it should be held that the statute of limitations did not commence to run until the manifestation of substantial harm in 1953, it is unnecessary to consider whether, in any event, defendant employer should be held to have waived the running of the statute of limitations for the period during which plaintiff continued to work at the same employment with defendant‘s consent and continued to receive treatment from defendant‘s medical facilities for an affliction which appeared to be of a relatively minor and temporary nature.
For the reasons stated, I concur in the reversal of the judgment.
MCCOMB, J.—I dissent, for the reasons expressed by Mr. Justice Warne in the opinion prepared by him for the District Court of Appeal, (Cal.App.) 311 P.2d 40.
Duard F. Geis, Carroll F. Byrd, Geis & Byrd and Carroll F. Byrd, Jr., for Respondent.
GIBSON, C. J.—Plaintiff brought this action against Glenn County and the Glenn-Colusa Irrigation District for damages for the wrongful death of her husband and son. General and special demurrers by the district to the second amended complaint were sustained without leave to amend, and judgment was entered in its favor.1 Plaintiff moved to set aside the judgment upon the grounds of mistake, inadvertence, surprise and excusable neglect. She filed a supporting affidavit of her attorney to the effect that on the hearing of the demurrer he had neglected to argue an available theory of liability. The motion was denied without prejudice to its renewal within 10 days, accompanied by a proposed amended complaint. Pursuant to this permission plaintiff renewed the motion and presented a proposed third amended complaint. This motion was also denied.
The principal question is whether plaintiff has alleged facts which constitute a cause of action.
The allegations of the second amended complaint may be summarized as follows: In 1910 certain persons, some of whom were agents of the district, constructed a private roadway over their land in extension of County Road R so as to make the private roadway appear to be part of the county road. About the same time the district or its predecessor in interest constructed a wooden bridge to connect two portions of the private roadway which were separated by the district‘s main canal. There was a 45-degree turn where the roadway met the bridge, but the turn was not indicated by any signs or warning devices, and there were no adequate barricades, railings or lights. The levees of the canal were above the roadway, and, because of the construction and height of the levees and the bridge, travelers could not observe the abrupt change of direction or see the bridge until they were upon it. As a result, travelers were likely to drive off the bridge into the canal, and the roadway and bridge thus constituted a dangerous and defective condition and an “absolute nuisance per se.” The district permitted this condition to exist on
The proposed third amended complaint repeated in substance the allegations of the second amended complaint and further stated that there is a dispute between the several parties as to whether the county or the district or both are responsible for the maintenance of the bridge and that plaintiff does not know whether either or both are responsible. It was also alleged that plaintiff does not know whether the district constructed the bridge or acquired it, that the dangerous condition has existed for 40 years and that the district had notice of it.
The general rule is that, in the absence of a statutory or constitutional provision to the contrary, the state and its agencies are immune from liability for tort in the discharge of governmental duties and activities. (Pianka v. State, 46 Cal.2d 208, 210 [293 P.2d 458]; Talley v. Northern San Diego County Hospital Dist., 41 Cal.2d 33, 36 [257 P.2d 22]; Stang v. City of Mill Valley, 38 Cal.2d 486, 488 [240 P.2d 980].) This rule has been applied to irrigation districts. (Nissen v. Cordua Irr. Dist., 204 Cal. 542, 545 [269 P. 171]; Jackson & Perkins Co. v. Byron-Bethany Irr. Dist., 136 Cal. App. 375, 380 et seq. [29 P.2d 217, 30 P.2d 516]; Whiteman v. Anderson-Cottonwood Irr. Dist., 60 Cal.App. 234, 241-242 [212 P. 706]; see Talley v. Northern San Diego County Hospital Dist., 41 Cal.2d 33, 40 [257 P.2d 22].)
Plaintiff does not claim that the district was acting in a proprietary capacity with respect to the bridge and roadway, and the only provisions upon which she relies as constituting a waiver of the district‘s immunity are sections 22725-22732 of the
Most of the authorities who have recently written on the subject strongly advocate abolition or modification of the principle of governmental immunity, which lets the loss caused by tortious conduct of the government rest on the injured individual instead of distributing it among all the members of the community, the beneficiaries of the governmental activity. (See, e. g., 2 Harper and James, The Law of Torts (1956), 1612; Prosser on Torts (2d ed. 1955), 775; Borchard, State and Municipal Liability in Tort—Proposed Statutory Reform, 20 A.B.A.J. 747 et seq.; Kuchel, Should California Accept Tort Liability? 25 Cal. State Bar J. 146, 151.) However, the abrogation or restriction of this doctrine is primarily a legislative matter (see Talley v. Northern San Diego County Hospital Dist., 41 Cal.2d 33, 41 [257 P.2d 22]; Waterman v. Los Angeles County General Hospital, 123 Cal.App.2d 143, 144 [266 P.2d 221]), and, where, as here, the Legislature has clearly expressed its intention to maintain immunity, that intention is controlling.
Several cases have recognized an exception to the immunity doctrine where a governmental unit is maintaining a nuisance. (Phillips v. City of Pasadena, 27 Cal.2d 104, 106-107 [162 P.2d 625]; Hassell v. City & County of San Francisco, 11 Cal.2d 168, 170 [78 P.2d 1021]; Adams v. City of Modesto, 131 Cal. 501, 502-503 [63 P. 1083]; Peterson v. City of Santa Rosa, 119 Cal. 387 [51 P. 557]; Lind v. City of San Luis Obispo, 109 Cal. 340, 343 [42 P. 437]; Bloom v. City & County of San Francisco, 64 Cal. 503 [3 P. 129].) In considering whether the facts alleged are sufficient to constitute a nuisance, we must keep in mind that, in order to state a cause of action based upon this theory, the plaintiff must show that a legislative body has declared the condition complained of to be a nuisance. (Palmquist v. Mercer, 43 Cal.2d 92, 101 [272 P.2d 26]; Ward v. Oakley Co., 125 Cal.App.2d 840, 850-851 [271 P.2d 536]; Brooks v. City of Monterey, 106 Cal.App. 649, 654 [290 P. 540]; cf. People v. Lim, 18 Cal.2d 872, 879 et seq. [118 P.2d 472]; People v. Johnson, 129 Cal.App.2d 1, 8-9 [277 P.2d 45].)
Plaintiff claims that the trial court failed to recognize the nuisance exception to the immunity doctrine and that she should be given another opportunity to amend her complaint. She has made no contention, however, that her allegations which describe the condition of the bridge and roadway are untrue or incomplete, and it does not appear that there is any reasonable possibility that the defect can be cured by amendment. Under the circumstances, there was no abuse of discretion in failing to grant further leave to amend. (Cf. Lemoge Electric v. County of San Mateo, 46 Cal.2d 659, 664 [297 P.2d 638].)
The order sustaining the demurrer to the second amended complaint is not appealable, and the attempted appeal therefrom is dismissed. The judgment and the order denying the motion to vacate the judgment are affirmed.
Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.
CARTER, J.—I dissent.
Once again this court is faced with the question of the scope of governmental immunity and again the majority has seen fit to broaden the scope when an analysis of applicable statutes shows such action to be clearly unwarranted.
The majority in this case determines that the irrigation district (hereinafter the district) is immune from suit under the doctrine of governmental immunity on the grounds that there is no statutory basis for liability, and that the condition complained of was not a nuisance within the meaning of Civil
The Irrigation District Liability Law was construed in Powers Farms, Inc. v. Consolidated Irr. Dist., 19 Cal.2d 123 [119 P.2d 717]. In that case plaintiff brought an action against an irrigation district for injuries sustained as a result of seepage from irrigation canals. The action was based upon
In reaching its conclusion the court analyzed the sections of the Irrigation Liability Law at length, and nowhere was there any indication to forsake the principle that this law enabled injured parties to sue the district apart from its officers or employees. To the contrary the court took pains to point out that section 2 permitted claims for damages against a district on grounds of “(1) a dangerous or defective condition of property of the district and negligence of an officer or employee or (2) a dangerous or defective condition of property of the district, that is, a general liability without reference to negligence, or (3) the negligence of an officer or employee.” (Emphasis added.) (Powers Farms, Inc. v. Consolidated Irr. Dist., supra, 128.) This statement is susceptible only of the interpretation that an irrigation district‘s governmental immunity is removed by this statute and that such districts are liable independently of their employees or officers.
Therefore, it would seem to follow that since section 2 of the Irrigation Liability Law and
However, we are now told that this is not so, but that by some peculiar alchemy the transposition of the Irrigation District Liability Law into the Water Code altered the nature of these sections to such an extent that this court is now required to regard sections 22730 and 22731 of the Water Code as controlling. Thus, the district‘s liability would be limited to negligent acts of its officers in their official capacity. Furthermore we are told that in the Powers case “It is clear that we did not consider section 2 of the act [now
As an original proposition the majority‘s construction of sections 22730 and 22731 might have been plausible, but it is now forestalled by the Powers case. Moreover, if this court now seeks to interpret the Powers case as not affecting the district‘s liability other than as described in sections 22730 and 22731, it will be necessary to modify the contrary language therein since a reading of that case makes it obvious such was not the interpretation when it was written.
To substantiate this latter statement one need only read this court‘s restatement of plaintiff‘s contention in the Powers case, which appears as follows: “The respondent . . . contends that the law [Irrigation District Liability Law] concerns actions sounding in tort; that it has no reference to the general liability of the district, and should be construed as applying only to suits against directors, officers, agents, and employees, based on negligence, and to the secondary liability of the district, created by section 3 [now
The Powers case, then, established that the district‘s liability was twofold: (1) a general independent liability under section 2 of the liability law (now
Therefore,
Where plaintiff‘s complaint alleges compliance with the procedural prerequisites, as here, and sets forth proper grounds for a claim against the district, that is, a dangerous and defective condition is being maintained which caused an injury, this is all that is necessary to state a cause of action (see Knight v. City of Los Angeles, 26 Cal.2d 764, 766 [160 P.2d 779]; Insolo v. Imperial Irr. Dist., 147 Cal.App.2d 172, 175 [305 P.2d 176]).
For the foregoing reasons the trial court erroneously sustained defendant‘s general demurrer, and the judgment of dismissal which followed should be reversed.
Appellant‘s petition for a rehearing was denied April 16, 1958. Carter, J., was of the opinion that the petition should be granted.