Pfleger v. Superior Court

ROUSE, J.

I concur in the majority’s opinion under compulsion of the authorities cited; however, I must admit to some confusion in a judicially established policy which admits that the Tort Claims Act does not speak to nuisance as a basis for government liability (“The Act bars liability ‘except as otherwise provided by statute’ [citation] and there is no provision for nuisance liability” (4 Witkin, Summary of Cal. Law (8th ed. 1974) § 132, p. 2427)); observes that “the intent of the act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances ...” (Williams v. Horvath (1976) 16 Cal.3d 834, 838 [129 Cal.Rptr. 453, 548 P.2d 1125]; italics added); recognizes government liability for injuries caused by a dangerous condition if the plaintiff establishes the existence or absence of certain conditions specified in Government Code section 835; yet allows one to set forth a valid cause of action against a governmental entity for a dangerous condition by merely pleading the existence of a nuisance in the general statutory language of Civil Code section 3479. It was my impression that, by enacting the Tort Claims Act, the Legislature sought to provide immunity for public entities by statutorily circumscribing areas of tort liability to which such bodies might otherwise become exposed; however, the rule enunciated by the majority opinion appears to render one of such statutes (i.e., Gov. Code, § 835) superfluous (see Note, § XI(C), Torts, Liability of Public Entity for Nuisance (1973) 61 Cal.L.Rev. 289, 648). But *433then I was never one to fully grasp the subtle technique of pleading a proper cause of action!