Rombalski v. City of Laguna Beach

CROSBY, Acting P. J., Concurring.

The City of Laguna Beach was entitled to judgment, but I cannot wholly subscribe to the majority’s analysis of the issues. Summarized, my view is as follows: Although the sea-washed rock is a dangerous condition of public property, the city had no legal duty to warn the public not to use it as a diving platform or to assign a lifeguard to that location. Accordingly, the municipality could not be liable as a matter of law.

I

Government Code section 831.2 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.” The rock from which the minor launched himself into the surf was natural and unimproved. This seems clear enough, but plaintiffs contend the rock may not be viewed in a vacuum, that it “is to be considered in light of the voluntarily] assumed lifeguard services that were undertaken by the City of Laguna Beach. This is a hybrid condition [because] [t]he lifeguard services are an artificial condition created by the city.” For this theory they rely on Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882 [182 Cal.Rptr. 73], There, Division One of this court agreed an ocean facing beach constitutes unimproved property, but determined it was not in a natural condition for purposes of section 831.2 because the public entity provided lifeguard services and “perform[ed] that voluntarily assumed service negligently by failing to warn of the known, hazardous, natural condition [riptides].” (Id., at p. 886.) Unlike my colleagues, I believe the most appropriate disposition of the present case is via a frank disavowal of Gonzales.

Gonzales appeared in April 1982. The timing was unfortunate. Had the court the benefit of Davidson v. City of Westminster (1982) 32 Cal.3d 197 [185 Cal.Rptr. 252, 649 P.2d 894], which was decided but a few months later, the outcome might have been different; and the considerable conster*857nation and confusion generated by Gonzales’s focus on governmental immunity, as opposed to the more basic problem of whether a duty was owed to the plaintiff in the first place, might have been avoided.1

The Supreme Court in Davidson was presented with a municipality’s demurrer to a complaint alleging the negligent failure of police officers to protect the plaintiff. The complaint claimed reliance by the public based on the city’s general provision of police services. In addition to asserting a statutory immunity, the demurrer challenged the allegation of the city’s duty of care to the plaintiff.

The court dealt with the matter as follows: “In sorting out the issues presented, it is important to consider first things first. Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity. This logical sequence of inquiry was overlooked in dicta in at least three Court of Appeal cases [four counting Gonzales]: Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6 [120 Cal.Rptr. 5]; Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588 [114 Cal.Rptr. 332]; McCarthy v. Frost (1973) 33 Cal.App.3d 872 [109 Cal.Rptr. 470]. The fallacy was exposed in Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704 [141 Cal.Rptr. 189],[2] where Justice Reynoso, writing for the Court of Appeal, arrayed the subjects of the inquiry in proper order: ‘The parties assume that if we conclude the alleged facts establish as a matter of law the existence of a “special relationship” (a relationship giving rise to the county’s duty to act prudently, and appellants’ justifiable reliance thereon) we will obviate the need to *858consider whether respondents are immune from liability under sovereign immunity principles. Implicit in this exception theory is the assumption the “special relationship” creates an affirmative governmental responsibility which when breached gives rise to governmental liability notwithstanding the discretionary (immunized) character of the tortious act.’ The Whitcombe court disagreed, correctly explaining that the question of ‘ “duty” [to which the special relationship concept pertains] is only a threshold issue, beyond which remain the immunity barriers . . . .’ [Citation.]” (Davidson v. City of Westminster, supra, 32 Cal.3d at pp. 201-202.)3 Gonzales missed that point.

As Professor Van Alstyne aptly noted, “Some of the cases represent an unnecessary effort to categorize the acts or omissions in question as immune discretionary functions, when the same result could be reached on the ground that the facts fail to show the existence of any duty owed to plaintiff .... [Citations.] Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any ‘special relationship’ . . . the alleged tort consists merely in [government] nonfeasance. See, e.g„ Mikialian v. Los Angeles (1978) 79 [Cal.App.3d] 150 [] (no duty of police to place flares for protection of tow truck operator); J.A. Meyers & Co. v. Los Angeles County Probation Dep't. (1978) 78 [Cal.App.3d] 309 [] (no duty of probation officers to disclose criminal record of probationer to prospective employer).” (Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 2.65, p. 146, quoted with approval in Williams v. State of California, supra, 34 Cal.3d at p. 23.) The Supreme Court has also explained, “legal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].)

Thus, Gonzales should have resolved the duty question before addressing the asserted immunity4 (Forde v. County of Los Angeles (1976) 64 *859Cal.App.3d 477, 481 [134 Cal.Rptr. 549]); “the immunity cart [should not be] placed before the duty horse. [Citation.]” (Williams v. State of California, supra, 34 Cal.3d at p. 22.) And, when it did reach the out-of-sequence duty question, the Gonzales court erred there as well.

II

The Gonzales majority made a curious assumption, encouraged perhaps by the special posture of the proceeding, i.e., review of a demurrer in which the city apparently did not deny its alleged duty to the decedent: “[W]here a public entity voluntarily assumes a protective duty toward certain members of the public, even though there is no liability for its acts or omissions, upon undertaking the action on behalf of the public and inducing public reliance, the entity will be held to the same standard of care as a private individual or entity. (Hartzler v. City of San Jose [supra] 46 Cal.App.3d 6, 10 [120 Cal.Rptr. 5]; Mann v. State of California (1977) 70 Cal.App.3d 773, 780, fn. 6 [139 Cal.Rptr. 82].)” (Gonzales v. City of San Diego, supra, 130 Cal.App.3d at p. 887.) Oddly, the notion that this statement of the law in some way related to the case before it was specifically, and quite properly, rejected when the court considered the duty issue subsequently.

The provision of services to the public in general, the basis of the duty allegations in the Gonzales complaint (and in this one as well), will not give rise to a duty by the government agency to act affirmatively to protect any individual plaintiff. Without active negligence toward, or some special rela*860tionship with, a particular plaintiff, it is well settled that no duty to act springs from the mere establishment of governmental services. (See, e.g., Clemente v. State of California, supra, 40 Cal.3d 202; Williams v. State of California, supra, 34 Cal.3d 18; Thompson v. County of Alameda (1980) 27 Cal.3d 741 [167 Cal.Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]; Tarasoff v. Regents of University of California, supra, 17 Cal.3d 425; McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 [74 Cal.Rptr. 389, 449 P.2d 453]; Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352]; Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070 [235 Cal.Rptr. 844]; Hucko v. City of San Diego (1986) 179 Cal.App.3d 520 [224 Cal.Rptr. 552]; Harris v. Smith (1984) 157 Cal.App.3d 100 [203 Cal.Rptr. 541]; Stout v. City of Porterville (1983) 148 Cal.App.3d 937 [196 Cal.Rptr. 301].)5

Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6 and Mann v. State of California (1977) 70 Cal.App.3d 773 [139 Cal.Rptr. 82], the two cases Gonzales cites for the proposition that a governmental entity will be held to a standard of ordinary care once it acts on behalf of the public or induces public reliance, illustrate the false premise of the hybrid theory, i.e., that the mere furnishing of police and lifeguard services gives rise to a legal duty. Those cases did not find a duty to act based on the general provision of public services.

In Hartzler the city was not held liable. There, plaintiff’s decedent was murdered when police failed to respond to a telephone report from the victim that her estranged husband announced he was on his way over to kill her. The establishment of a police department did not make the city legally responsible for its inaction, and a police history of responding to a score of similar calls from the victim did not create any special relationship with the municipality. The state was found responsible in Mann-, but there an officer actively intervened at an accident scene, only to drive off, leaving victims who relied on his assistance in a hazardous position in the middle of a public highway.

The lesson of these cases and those cited previously is that the usual availability of public services is not sufficient, in and of itself, to induce *861reasonable reliance in a particular plaintiff or to create liability for a failure to act. The Supreme Court has explained the point in these words: “As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act. [Citations.]” (Williams v. State of California, supra, 34 Cal.3d at p. 23.) The rationale is as follows: “This rule derives from the common law’s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. [Citation.] Morally questionable, the rule owes its survival to ‘the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . . .’ [Citation.] Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. [Citation.]” (Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, fn. 5.) It may be that the ancient distinction between active and passive behavior in the law is past its prime. (See Hucko v. City of San Diego, supra, 179 Cal.App.3d at p. 524.) Nevertheless, the rule it supports is still controlling and not subject to change by an intermediate appellate court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)

Following an analysis of Government Code section 831.2, the Gonzales majority examined the duty question briefly in light of Government Code section 835. Inconsistently, however, the majority considered and rejected the same concept of duty it earlier used to explain the “hybrid” theory in the immunity discussion: “Although we agree with the legal theory set forth in the concurring opinion [that a duty to act may be predicated on the general provision of public services without active negligence toward a particular plaintiff or any special relationship], here the complaint presently lacks the necessary factual allegations explaining what employee’s negligence and the nature thereof [ ] give rise to City’s vicarious liability. Moreover, the complaint does not specifically allege facts giving rise to any special relationship between City and decedent. (See Mann v. State of California, supra, 70 Cal.App.3d 773, 779-780.)” (Gonzales v. City of San Diego, supra, 130 Cal.App.3d at p. 889.)

I do not understand use of the term “vicarious liability” in the context of Gonzales, a point that has confounded others as well. (See Surviving the “Chubasco,” supra, 23 San Diego L.Rev. at pp. 733-734.) Still less do I understand the relevance of its earlier discussion of duty in the immunity analysis. The duty suggested in that portion of the opinion does not exist. *862And, the statutory duty under Government Code section 835 utilized in the consideration of the duty question is certainly inapplicable when that provision is read alongside section 831.2.

Does a legal duty flow from a municipality’s dual role as landowner and provider of general public services? The difficulties with that notion are several. For one, since public safety services of some sort are available virtually everywhere in the state, even in wilderness areas, that would be the equivalent of an open-ended application of the rule of Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561] and Government Code section 835 in contravention of both the spirit and the letter of section 831.2. Despite the obvious intent of the latter provision, under Gonzales a governmental entity would be required to warn of all hazardous natural conditions on its unimproved property so long as some public safety services were offered there. That is not the law. (See, e.g., McCauley v. City of San Diego, supra, 190 Cal.App.3d 988-989 [city not liable even though signs warning of dangerous cliffs and false trails were not lighted and were ineffectively located]; County of Sacramento v. Superior Court (1979) 89 Cal.App.3d 215 [152 Cal.Rptr. 391].) And if it were, as the Legislature feared in 1963, public lands might be withdrawn from public access in some cases and cause the proliferation of unsightly warning signs. (See Hayes v. State of California (1974) 11 Cal.3d 469, 473 [113 Cal.Rptr. 599, 521 P.2d 855]; Surviving the “Chubasco,” supra, 23 San Diego L.Rev. at pp. 735-736.)

The government does not become a guarantor of public safety by providing certain services on unimproved property in its natural condition. If the property meets the definition of Government Code section 831.2, there is no duty to warn of all dangerous conditions merely because some warnings have been given or because certain safety services are in place for the general public’s benefit. (See, e.g., Mercer v. State of California, supra, 197 Cal.App.3d at p. 169 [“Nothing in the record indicates (the public entity) voluntarily assumed the obligation to warn the public of the dangers ... or otherwise by its conduct negligently increased the dangerousness of the dunes’ natural condition. Nor has appellant offered any evidence that he was misled or given a false sense of security by (the public entity’s) conduct”]; McCauley v. City of San Diego, supra, 190 Cal.App.3d at p. 992; Winterburn v. City of Pomona, supra, 186 Cal.App.3d at p. 882 [no duty to warn of danger of falling rocks in cave]; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 814 [198 Cal.Rptr. 208] [no duty to warn beachgoers of “possible unauthorized and/or criminal use of the beach”]; Fuller v. State of California (1975) 51 Cal.App.3d 926 [125 Cal.Rptr. 586].) Only if a government employee negligently intervenes to a particular individual’s disadvantage, or some special relationship exists between the *863government and the injured party, does a duty exist. (Cf. Decker v. City of Imperial Beach, supra, 209 Cal.App.3d 349.)

On the other hand, the obligation of care arising from the ownership of public lands is strictly limited by Government Code section 831.2. At best the provision of services on public property should only impact the application of that section where those services, combined with physical improvements at the site of the accident, have become so pervasive and dominant that it can no longer be said the property remains “unimproved.” Thus, the hybrid theory of Gonzales is both unsound and unnecessary. Where liability is grounded on active negligence or a special relationship, the character of the property as public or private is immaterial. When liability derives from the government’s role as an owner of property, services offered on that property are only marginally relevant with respect to the determination of whether it remains unimproved for purposes of section 831.2. The alchemy of Gonzales was to create liability gold out of the mixture of two base elements: passive negligence and a dangerous condition on unimproved property. Neither could support a judgment alone. Nor can they together: Nothing added to nothing equals nothing. Put another way, Gonzales erred in combining a discussion of duty with a consideration of the immunity question and in failing to appreciate the inapplicability of Government Code section 835 in light of section 831.2.

As a matter of law, the City of Laguna Beach owed no duty to plaintiffs. Thus, under no theory could they recover. Summary judgment was appropriate.

A petition for a rehearing was denied September 29, 1989, and the opinion was modified to read as printed above. Appellants’ petition for review by the Supreme Court was denied November 21, 1989.

As one commentator noted, “[t]his interpretation of section 831.2 creates a serious dilemma for California coastal communities,” e.g., the considerable possibility that its holding might discourage the deployment of public services. (Comment, Surviving the “Chubasco”: Liability of California Beach Communities for Natural Conditions of Unimproved Public Property (1986) 23 San Diego L.Rev. 723, 725, 734-736.) Most appellate opinions discussing Gonzales have taken pains to distinguish it. (See, e.g., Mercer v. State of California (1987) 197 Cal.App.3d 158, 166-167 [242 Cal.Rptr. 701]; McCauley v. City of San Diego (1987) 190 Cal.App.3d 981, 986-989 [235 Cal.Rptr. 732] [by the author of Gonzales]; Winterburn v. City of Pomona (1986) 186 Cal.App.3d 878, 882 [231 Cal.Rptr. 105]; Kuykendall v. State of California (1986) 178 Cal.App.3d 563, 566 [223 Cal.Rptr. 763]; Rose v. County of Plumas (1984) 152 Cal.App.3d 999, 1006-1007 [199 Cal.Rptr. 842].) One court has simply disagreed with the holding. (Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 192-193 [242 Cal.Rptr. 492].)

The Gonzales opinion relied on Hartzler and Antique Arts to support its discussion of the duty issue under Government Code section 835 and seemingly questioned Whitcombe. (Gonzales v. City of San Diego, supra, 130 Cal.App.3d at p. 890.) It also cited Clemente v. State of California (1980) 101 Cal.App.3d 374 [161 Cal.Rptr. 799], but that case was subsequently disapproved. (Clemente v. State of California (1985) 40 Cal.3d 202, 212 [219 Cal.Rptr. 445, 707 P.2d 818]; Williams v. State of California (1983) 34 Cal.3d 18, 23-27 [192 Cal.Rptr. 233, 664 P.2d 137].)

To be sure, a court may turn first to a statutory immunity where its application provides a clear bar rather than wrestle with a murky duty issue, “suggesting, perhaps, that the life of the law is not logic, but expedience.” (Kisbey v. State of California (1984) 36 Cal.3d 415, 418 [204 Cal.Rptr. 428, 682 P.2d 1093], fn. omitted; Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 134 [43 Cal.Rptr. 294]; see also Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 362 [257 Cal.Rptr. 356] [see fn. 5, post]; Geffen v. County of Los Angeles, supra, 197 Cal.App.3d 188, 192-193 [disagreeing with Gonzales on the immunity question].)

Government Code section 831.2 could perhaps be construed as merely a legislative declaration that no duty of care is owed to a plaintiff who might be injured by a natural condition on unimproved public property. The word “immunity” does not appear in that section, and its language sounds less like a description of excused negligence than a declaration of nonduty (“Neither a public entity nor a public employee is liable . . . .”)

*859The Senate Legislative Committee comments to section 831.2 state in part, “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.” (Italics added.)

Assumption of the risk is a concept relating to the relative duties of care of the plaintiff and defendant. (See, e.g., Ordway v. Superior Court (1988) 198 Cal.App.3d 98 [243 Cal.Rptr. 536]; Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793 [202 Cal.Rptr. 900]; Frizell, Assumption of the Risk in California: It's Time to Get Rid of It (1989) 16 Western St.U. L.Rev. 627.) It is not a doctrine ordinarily associated with a grant of immunity. Immunity as a bar to recovery comes into play only after the defendant’s fault has been determined to exist, i.e., that a duty of care has been breached. (See Williams v. State of California, supra, 34 Cal.3d 18, 22; Davidson v. City of Westminster, supra, 32 Cal.3d 197, 201-202; Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 704 [141 Cal.Rptr. 189].) Notwithstanding these comments, Government Code section 815 describes the various exceptions to liability as immunities; and the Supreme Court has echoed that theme. (Milligan v. City of Laguna Beach (1986) 34 Cal.3d 829, 832-833 [196 Cal.Rptr. 38, 670 P.2d 1121], citing the above quoted legislative comments to § 831.2.)

Compare the facts in Decker v. City of Imperial Beach, supra, 209 Cal.App.3d 349, where there was a triable issue of fact as to whether the city had assumed responsibility for the rescue of plaintiff’s decedent. In Decker, the victim went surfing one early March evening when lifeguards were not on duty. His surfboard leash became tangled in the tether for an underwater lobster trap. Bystanders called the sheriff’s department, who notified the city fire department. Both agencies arrived at the beach and told the victim “ ‘help [was] on the way.’ ” (Id., at p. 352.) The city’s fire marshall, however, forbade a lifeguard from swimming into the surf to rescue the young man. Other efforts failed, and the surfer drowned.

The appellate panel bypassed the duty issue, and a majority affirmed a summary judgment for the city on the basis of a statutory immunity (Gov. Code, § 831.7 [hazardous recreational activity]). (See fn. 3, ante, p. 858.)