County of San Mateo v. Superior Court

Filed 7/25/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

COUNTY OF SAN MATEO,

Petitioner,

v.

THE SUPERIOR COURT OF SAN A146077

MATEO COUNTY,

(San Mateo County

Respondent; Super. Ct. No. CIV 515962)

ZACHARY ROWE et al.,

Real Parties in Interest.

A 72-foot diseased tree fell on a sleeping child’s tent pitched in a campground that

is located within a vast public wilderness park. The park’s owner, the County of San

Mateo, contends it is immune as a matter of law for this allegedly dangerous condition of

its property under Government Code section 831.2, commonly referred to as the “natural

condition immunity.” It states: “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.”1 (See

§ 831.2.)

The trial court denied the County’s motion for summary judgment under section

831.2, and we now deny the County’s petition for a writ of mandate seeking to overturn

1

All further statutory references are to the Government Code unless otherwise

indicated.

1

the summary judgment ruling. We conclude there are triable issues of fact as to whether

the property here was “unimproved.”2

BACKGROUND

On July 25, 2012, Zachary Rowe and his family were camping in San Mateo

County Memorial Park, where they occupied campsite D-1 of Sequoia Flat Campground.

Twenty feet from Zachary’s tent stood a 72-foot, diseased tanoak tree suffering from a

species of fungus called Armillaria that caused it to fail. In the early morning hours,

while Zachary was sleeping, the massive tree fell on Zachary’s tent, crushing him and

inflicting catastrophic injuries. The tree also crushed a nearby picnic table. It came to

rest on a bumper log located within campsite D-1, 42 feet from the tree’s broken end.

San Mateo County Memorial Park is property owned by San Mateo County,

consisting of approximately 499 wooded acres, with trails. Its campsites are located in a

heavily wooded campground area, portions of which were cleared of trees. The

campground area contains dozens of campsites as well as amenities such as paved roads,

telephones, restrooms (with electricity, sinks and flush toilets), showers, dedicated

parking areas, a dumping station and a store. An official campground map depicting the

campground’s layout and some of its amenities is reproduced in the appendix to this

opinion as Figure 1.

Zachary’s campsite consisted of a clearing with two picnic tables, a fire pit and a

metal food locker. His tent was approximately 20 feet from the broken edge of the tree.

A power line runs along an adjacent road and is visible from where the tree stood.

The tree was 20 feet away from a paved access road and surrounded by a cluster of

five campsites, including Zachary’s. A professional land surveyor determined there were

34 man-made improvements within 126 feet of where the tree stood, including roadways,

bumper logs (which are large trees laid on the ground to keep cars out of camping areas),

2

This case arises from the same incident as Pacific Gas & Electric Co. v.

Superior Court (2017) 10 Cal.App.5th 563, in which we addressed a co-defendant’s

claim of recreational use immunity under Civil Code section 846. That statute is not at

issue here.

2

restrooms, picnic tables, bear boxes, fire pits/barbeque pits, road signs, conductor poles

with transformers and a parking bollard. According to the survey map he prepared,

which is reproduced as Figure 2 in the appendix to this opinion, the man-made objects

closest to the tree were a picnic table and a fire pit in a neighboring campsite, both some

13 feet away from the tree. The map depicts many man-made objects within the tree’s

72-foot striking distance, including a power line within 37 feet at its closest point; two

access roads, one of which was 22 feet away at its closest point and the other 61 feet

away; and various amenities located in Zachary’s campsite and several neighboring

ones.3 Also close by, but not within the tree’s 72-foot striking distance, were two

restrooms, one 113 feet away from the tree, and the other 126 feet away.

Since at least 1993, the County has inspected what it considers to be “developed

areas” of the park for hazardous trees and removed them. It considered Sequoia Flat

Campground to be a developed area.

The Pleadings

Zachary, by and through his guardian ad litem, sued the County for premises

liability (§ 815.2) and dangerous condition of public property (§ 835). He alleged the

tree had identifiable structural defects, including rot, a cavity and a denuded trunk and

“was overextended, tilted and had poor taper.” He alleged the County negligently failed

to maintain campsite D-1 and its environs, failed to warn of or protect against the danger

of falling trees, failed to inspect, care for, treat or trim the trees, and knew or should have

known that the tree that fell was infected and posed a severe risk of injury yet failed to

remove it.

Zachary also alleged, “[c]ampsite D-1 is one of many campsites located in a

designated campground area of San Mateo Memorial State Park. These campsites were

3

Aside from Zachary’s tent itself, those objects were the amenities in neighboring

campsite C-33 (bumper logs, two picnic tables, and a fire pit); the fire pit, bear box, and

picnic table in Zachary’s campsite (all within 61 feet to 70 feet of the tree); two bumper

logs and a bear box in neighboring campsite D-10; and two picnic tables and a fire pit in

another neighboring campsite (within 50 and 67 feet away, in campsite C-31).

3

created by the defendants who selected the location, created the design, cleared the

vegetation in designated areas of the park, and improved the areas with picnic tables,

barbeque grills, bathrooms and showers and otherwise improved these sites to

accommodate high use, multi-day tent camping by the public.”

The Summary Judgment Motion

The County moved for summary judgment on the ground that it was immune as a

matter of law under section 831.2. It argued, first, that the tree that injured Zachary was a

natural condition. It then rebutted several arguments it anticipated from Zachary as to

whether the property was unimproved. The County contended, first, that the presence of

bathrooms, showers and other amenities located elsewhere in the park other than at

campsite D-1, as alleged in the complaint, did not vitiate its immunity. It also contended

that Zachary “cannot argue that Section 831.2 immunity does not apply . . . by arguing

that he was injured in a campsite ‘improved’ for campers . . . because the cause of his

injury was the tree, a natural condition of the land.” Finally, the County argued there was

no evidence that its creation of campsite D-1 contributed to the accident. In support, it

relied on the declaration of a certified arborist, Barnard Noonan, who had inspected the

tree, the campsite and the surrounding area and opined that, “[t]he base of the tree was

adjacent to the campsite. I saw nothing at the campsite to suggest that any human

activity had caused or contributed to the tree having fallen across the campsite.”

According to Noonan, “the tree was in a natural condition when it failed, and it failed as

the result of a progression of infection by a naturally-occurring fungus.”

In opposition, Zachary introduced evidence that, among other things, man-made

changes during construction of the campgrounds made the tree more susceptible to

developing Armillaria. Specifically, in the opinion of arborist Roy Leggitt, “the

manmade developments in Memorial Park, and the Sequoia Flat Campgrounds created by

development, urbanization, construction and intense camping uses more likely than not

created conditions that directly led” to the tree’s infection by Armillaria and ultimately to

its failure. He averred that, “Site conditions favorable to the development of Armillaria

were created at the time of construction of this campsite and nearby improvements over

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the years.” Among other things, “[c]onstruction activity changed the nature of the soil

and the root environment” in the tree’s vicinity, which included “removal of adjacent

trees, removal of mulch to bare dirt, grading of the soil for the road, soil compaction

beneath the road, parking areas nearby and within the campsite, and changes in

drainage,” as well as clearing soil of all organic material and compacting it in order to

construct roadways, parking areas and campsites, and in his opinion “[t]hese construction

activities have negatively impacted tree health through soil and root damage.” And,

according to Leggitt, “construction activities and ongoing uses” caused the roots to

gradually die from oxygen starvation. In addition, he stated the extensive removal of

trees created favorable conditions for Armillaria because it left behind dead stumps and

roots that are hosts for the fungus.

Zachary also submitted the declaration of horticultural pathologist James Downer

opining that, “the man-made changes to the area around Campsite D-1, including the

cutting and paving of nearby roads; creation of campsites and vehicle parking areas, and

visitor traffic around the campsite predisposed the failed tree to becoming infected with

Armillaria,” and “the physical changes made to the area substantially increased the

likelihood that the subject tree would become infected and ultimately contributed to its

failure.” His opinion was based upon the fact that trees are more susceptible to the

disease when, among other things, soils “have been compacted by the construction of

nearby roads, foot traffic, vehicle parking or other means.”

The trial court concluded there was a triable issue of fact as to whether the

property is unimproved, and denied the County’s motion. It ruled principally on the basis

of evidence that, at the time of the accident, both Zachary and the tree that fell on him

were located within campsite D-1, that campsite D- 1 had been “improved” by a clearing,

picnic tables, a fire pit, and bumper logs to indicate areas for parking cars, and that in the

tree’s immediate vicinity were two other, developed campsites and a paved roadway.

The court also relied upon the experts’ opinions that those “man-made changes altered

the characteristics of property surrounding the tree and contributed to the tree’s failure by

making the tree more susceptible to Armillaria.”

5

The County’s petition for writ of mandate followed.

DISCUSSION

Summary judgment must be granted if all the papers submitted below show there

is no triable issue of any material fact, “that is, there is no issue requiring a trial as to any

fact that is necessary under the pleadings, and ultimately, the law.” (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 843; Code Civ. Proc., § 437c, subd. (c).) In

evaluating that question, we do not review the trial court’s reasons for its summary

judgment ruling but only its ruling—that is, “whether the judge reached the right

result . . . whatever path he might have taken to get there, and we decide that question

independently of the trial court.” (Carnes v. Superior Court (2005) 126 Cal.App.4th

688, 694, fn. omitted; accord, Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th

1071, 1079 [trial court’s stated reasons for summary judgment ruling “are not binding on

us because we review its ruling, not its rationale”].)

I.

The Natural Condition Immunity: An Overview

Section 831.2 is part of the Government Claims Act of 1963 (§ 810 et seq.), a

comprehensive statutory scheme governing the liabilities and immunities of public

entities and their employees. (Alana M. v. State of California (2016) 245 Cal.App.4th

1482, 1487 (Alana M.); Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 831

(Milligan).) Its purpose is to encourage public use of unimproved government property

by relieving government agencies from being “put to the expense of making the property

safe, responding to tort actions, and paying damages.” (Milligan, at p. 833; accord, Delta

Farms Reclamation District v. Superior Court (1983) 33 Cal.3d 699, 1174 [purpose is to

“open[] up public property for recreational use by making it financially safe to do so”];

see also Alana M., at p. 1487.)

A legislative comment formally adopted by committees of the Senate and

Assembly sheds light on the Legislature’s goal. (Milligan, supra, 34 Cal.3d at pp. 831–

832.) It states: “ ‘This section [831.2] provides an absolute immunity from liability for

injuries resulting from a natural condition of any unimproved public property. Thus, for

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example, under this section and Section 831.4,[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. [¶] This section and Section 831.4 continue and extend

an existing policy adopted by the Legislature in former Government 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

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.” (Milligan, supra, 34 Cal.3d at pp. 832–833, italics added.)

The Supreme Court has directed courts to apply the natural condition immunity “in

accordance with [this] expressed purpose and refuse to apply it when application would

not further the expressed purpose.’ ” (Id. at p. 832.)

As this court has explained, the statute presents two fact questions: whether a

condition is “natural” and whether the property is “unimproved” public property. (Fuller

v. State of California (1975) 51 Cal.App.3d 926, 937 (Fuller).) Here, Zachary does not

contend the accident was caused by a non-natural condition. Therefore, the only issue we

address is whether the County demonstrated as a matter of law the accident was caused

by a condition of “unimproved” public property. (§ 831.2.)

4

Section 831.4 grants public entities a separate immunity for injuries caused by a

condition of unpaved roads providing access to recreational areas such as fishing,

hunting, camping, and hiking grounds, and for paved trails providing access to any

unimproved property.

7

The statute does not define the phrase “unimproved public property,” nor does it

establish any standard for determining when public property ceases to be ‘unimproved’ as

the result of development activity. (Keyes v. Santa Clara Valley Water District (1982)

128 Cal.App.3d 882, 887–888 (Keyes).) It is well-settled, however, that improvements in

one portion of public property do not destroy governmental immunity for unimproved

areas. (Rendak v. State of California (1971) 18 Cal.App.3d 286, 288 (Rendak).) This

court and others have applied Rendak, and upheld immunity, in a variety of

circumstances where the only amenities argued to constitute improvements have been

located some distance from the accident scene. (See, e.g., Fuller, supra, 51 Cal.App.3d

at pp. 934–935, 936–937 [narrow, rocky, point of land from which plaintiff dove into

ocean held not improved as a matter of law despite lifeguard towers, restrooms and fire

rings located on nearby beach; under Rendak, “the immunity granted by [section 831.2] is

to be given a broad application”]; Eben v. State of California (1982) 130 Cal.App.3d 416,

423 (Eben) [area of lake where waterskiing accident occurred held not “improved” by

placement of warning buoys “located in an area some distance from the accident scene”];

Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 188, 194–195 [area of beach

where diving accident occurred held unimproved, despite lifeguard building, lifeguard

towers, parking lots, food concessions, a promenade, breakwater, pier, and signage

located elsewhere on beach at unspecified location(s)].)

Beyond Rendak’s holding that section 831.2 applies to unimproved areas that are

“separate, distinct and remote” from improved portions of public property (see Rendak,

16 Cal.App.3d at p. 289), however, there is tension in the case law concerning various

issues bearing on whether property is “unimproved.” Given the manner in which the

parties have framed the legal question before us, we address and resolve only those issues

that are necessary to our decision.

8

II.

Location of Injury Versus Location of the Natural Condition

One area where the cases have diverged is how courts are to specify the relevant

area of property for purposes of assessing whether it is improved or unimproved.

Rendak’s early progeny developed the rule that “some form of physical change in the

condition of the property at the location of the injury is required.” (Eben, supra,

130 Cal.App.3d at p. 421; see also, e.g., Keyes, supra, 128 Cal.App.3d at pp. 887–888;

Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 315 (Tessier).)

The first case to part ways with that rule was Meddock v. County of Yolo (2013)

220 Cal.App.4th 170 (Meddock), which held a public entity immune from suit by a

plaintiff who was injured when standing in an improved area of public property (the

paved parking lot of a boat ramp) when a tree growing in a nearby area fell on him. The

court in Meddock assumed, but did not decide, that the tree itself was located on

unimproved property. (See id. at p. 177.) In that context, Meddock held it was irrelevant

that the tree fell, and caused injury to the plaintiff, on the improved portion of the public

property, principally because of the statute’s causation requirement. It reasoned, “[t]he

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. [Citation.] Here, although the injury occurred on improved property, that is,

the paved parking lot, it was caused by the trees, native flora located near—and perhaps

superjacent to—the improved parking lot, but themselves on unimproved property.”

(Ibid., fn. omitted.) Meddock held that “the location of the occurrence is not material to

the statute.” (Id. at p. 179, italic omitted.) It concluded that because the plaintiff’s

injuries “were caused by decaying natural trees located on unimproved property,” the

county was immune. (Id. at p. 182.)

Relying in part on Meddock and distinguishing prior authorities, our colleagues in

Division Three recently announced the rule that “[w]hen the location of the injury is

different from the location of the natural condition, the character of the location of the

injury is not relevant.” (Alana M., supra, 245 Cal.App.4th at p. 1489.) Alana M. found

9

textual support in the statute; it reasoned that “because the phrase ‘of any unimproved

public property’ in section 831.2 modifies the ‘natural condition’ that caused the injury,

the relevant issue for determining whether the immunity applies is the character

(improved or unimproved) of the property at the location of the natural condition, not at

the location of the injury.” (Ibid.)

Applying these principles, Alana M. held a public entity immune from suit when a

tree fell and injured a child sleeping in a tent in a state-owned campground. It held the

tree was a natural condition of “unimproved” property as a matter of law, despite the fact

it “fell on an improved campsite.” (Alana M., supra, 245 Cal.App.4th at p. 1491.) In

part the court reasoned, “[t]here is no evidence of any artificial physical change in the

condition of the tree . . . or of the land within 24 feet of the tree.” (Ibid.) And the court

held the fact the tree was tall enough to fall within the plaintiff’s campsite “does not show

the tree that fell was on improved property.” (Id. at p. 1492.) Nor did evidence that the

tree was subject to the state’s tree hazard inspection program which, according to the

state’s operational manual, applied “ ‘solely within the developed areas’ ” of state parks;

Alana M. held the defendant’s “belief that the tree was on improved property is not

competent evidence” but merely a legal conclusion.5 (Id. at pp. 1486, 1493, italics

omitted.)

In evaluating whether Zachary’s injuries were caused by a “condition of

unimproved property,” our task in this case, as it was in Meddock and Alana M., is

somewhat complicated by the fact that the peril here—a falling tree—did not have a fixed

location. In effect, it was a migratory danger; it began in one location but ended up, and

caused injury, in another. The same was true in Rendak, the first reported opinion to

construe the statute, which involved a landslide from a cliff high above a strip of beach

that killed a visitor walking on the beach below. (See Rendak, supra, 18 Cal.App.3d at

pp. 287–288.) However, in holding the state was immune as a matter of law, Rendak,

5

This aspect of Alana M. forecloses Zachary’s argument that the County’s tree

inspection program has any bearing on whether the property here is improved.

10

unlike Meddock and Alana M., did not consider the characteristics of the condition’s

location (i.e., the (obviously) unimproved cliff) but, rather, the characteristics of the

beach some 72 feet below where the hazard struck.6

Nevertheless, we do not need to decide whether and to what extent the location of

the condition, or the location of injury, controls when dealing with a transitory hazard

because in this case, unlike in either Meddock or Alana M., there is evidence from which

a trier of fact could conclude the diseased tanoak tree was not in a different location than

the site of the accident, and was growing in an improved area.7

First, unlike in Alana M., there is evidence the trunk of the tree was growing

within the boundary of Zachary’s own campsite which, for the reasons discussed post, we

conclude raises a triable issue of fact as to whether the campsite is unimproved.

6

In its discussion of the relevant facts, for example, Rendak noted that “[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.” (Rendak, supra,

18 Cal.App.3d at p. 287, italics added.) The court also reasoned, among other things, that

section 831.2 “specifically extends the immunity to ‘any natural condition of any . . .

beach’ ”—an obvious reference to the accident site, not the cliff above where the danger

originated. (Rendak, at p. 288, italics omitted.)

Alana M. said that “[i]n Rendak, the dangerous condition and the area where the

decedent died were generally the same location.” (Alana M., supra, 245 Cal.App.4th at

p. 1490, citing Rendak, supra, 18 Cal.App.3d at pp. 287–289.) But the dangerous

condition in Rendak, initially before it struck, was farther away from the accident victim

than in Alana M. It was a 72-foot high cliff that collapsed into the sea on top of the

victim. (See Rendak, supra, at pp. 287–288.) In Alana M., by contrast, the tree that

crashed onto the plaintiff’s tent had been growing just 60 feet away from the campsite

before it fell. (See Alana M., at p. 1485.) This was four feet closer to the victim before it

struck than the cliff that collapsed in Rendak.

7

Another decision dealing with a transitory hazard, to which the County at oral

argument likened this case, is Arroyo v. State of California (1995) 34 Cal.App.4th 755,

which held that section 831.2 applied as a matter of law to a personal injury suit brought

by a child who was mauled by a mountain lion while walking on a hiking trail in a state

park. Arroyo is irrelevant, though, because the question whether the property was

“unimproved” was not at issue. (See id. at pp. 760–761.) The court merely held the lion

was a natural condition, notwithstanding various arguments to the contrary. (See id. at

pp. 761–762, 764–765.)

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Although the County disputed the tree’s location, the incident report described the tree as

“located in the north end of campsite D-1”, and one of Zachary’s experts, arborist Roy

Leggitt, stated in a declaration it was “located within” that campsite. Furthermore,

regardless of the trunk’s location, Zachary also introduced evidence that the tree’s roots

would have been growing underneath the campsites: according to his expert Leggitt,

“The root system for the 72-foot tall tanoak tree that failed, under normal conditions,

would extend at least 50–60 feet out from the trunk of the tree in all directions. Thus, the

root system under normal conditions would extend beneath Campsite D-1 and the

adjacent campsites, the parking areas for nearby vehicles, and beneath the paved road

adjacent to the tree.” Obviously, a tree’s roots are part of the tree; indeed, in this case the

weakening of the roots, according to Leggitt, contributed to the tree’s failure. According

to Leggitt, the tree’s roots deteriorated over time “as oxygen-starved roots have gradually

died from construction activities and ongoing uses.”

Second, the trunk of this tree was considerably closer to the improved accident site

and surrounding amenities than was true in Alana M. Whereas in Alana M. the tree was

growing 60 feet away from the injured victim’s campsite (see Alana M., supra,

245 Cal.App.4th at p. 1485), the tree that fell on Zachary was roughly 20 feet from where

his tent was pitched.8 It also was only 13 feet away from the nearest manmade objects

depicted in the surveyor’s map (a picnic table and a fire pit), compared with 30 feet in

Alana M. (a picnic table). (See ibid.)

And finally, unlike in Alana M., there also is evidence of physical alterations at the

site where the tree grew. Zachary’s expert James Downer opined that “[t]he soil around

the stump of the failed tree . . . was bare, compacted and lacking litter in 2014 and thus

likely low in recycled organic . . . nutrients.” And according to arborist Leggitt,

“[c]onstruction activity changed the nature of the soil and the root environment in the

8

The precise distance between the broken tree stump and Zachary’s tent does not

appear to be in the record. However, a map of measurements attached to the incident

report depicts the stump in extremely close proximity to the broken end of the tree, which

was itself 20 feet from the tent.

12

vicinity of the subject tree,” and he explained at some length how the removal of mulch

during campground construction, and the removal of trees “in the area immediately

surrounding the subject tree” damaged the tree’s health by impairing the level of nutrients

in the soil and, ultimately, damaging the tree’s roots. He also opined that the removal of

other trees in the vicinity during campground construction created a clearing around this

tree that caused it to grow asymmetrically toward sunlight, and made it susceptible to

torsional loads from high winds.

In sum, there are triable issues of fact as to whether the tree was growing in the

same general location as the accident site or, even if it was not, was itself growing in an

improved area by virtue of the artificial physical changes in its immediate vicinity.

III.

On This Record, There Are Triable Issues of Fact As to Whether the Campsite Area

Where Zachary Was Injured Is “Unimproved” Property.

This brings us, next, to whether the cluster of campsites where Zachary’s was

located is “unimproved” as a matter of law, as the County contends, or whether Zachary’s

evidence raises triable issues of fact concerning that issue. Given the above-discussed

evidence indicating the tree was within Zachary’s campsite, it is necessary for us to

address this issue.

The County argues that the “primitive amenities” within the campground or the

campsites themselves don’t render the area improved. Citing Mercer v. State of

California (1987) 197 Cal.App.3d 158, 165, it contends “[t]he Legislature could not

have intended the immunity to be avoided by the presence of simple accoutrements like

campsites with picnic tables, and access roads to get there,” because the statute “should

not be interpreted to ‘thwart accessibility and enjoyment of public lands by discouraging

the construction of such improvements as restrooms, fire rings, campsites . . . .’ ”

However, the County has quoted a portion of Mercer out of context; Mercer assumes

campsites are improvements. Addressing the Rendak principle that “improvements of a

portion of a public park do not remove the immunity from the unimproved areas,”

Mercer explained: “The reasonableness of this rule is apparent. Otherwise, the

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immunity as to an entire park area improved in any way would be demolished.

[Citation.] This would, in turn, seriously thwart accessibility and enjoyment of public

lands by discouraging the construction of such improvements as restrooms, fire rings,

camp sites, entrance gates, parking areas and maintenance buildings.” (Mercer, at

p. 165.) In other words, Mercer was saying, if the construction of improvements such as

restrooms and camp sites destroyed immunity for an entire park, then a public entity

might be deterred from building those kinds of improvements in order to retain immunity

for unimproved areas. Mercer was not saying that immunity should apply to the areas

where such amenities were constructed, in order to encourage their construction.

In that respect, Mercer does not stand alone. The courts have generally

understood campsites with amenities to be improved, including the court in Alana M.

(See Alana M., supra, 245 Cal.App.4th at pp.1485, 1491 [noting that tree fell “on an

improved campsite” which consisted of a leveled area for tent, fire pit, picnic table with

benches and small wooden foot locker]; Meddock, supra, 220 Cal.App.4th at p. 180

[“ ‘camping sites with stoves, running water, sanitary facilities, garbage service and

organized recreational activities . . . would be excluded from the scope of this suggested

immunity’ ”], italics omitted, quoting Van Alstyne, A Study Relating to Sovereign

Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 495–496).)

The County also argues the amenities here are “trivial,” but we disagree. Befitting

a campground, they are of course modest. But, based on this record, there can be no

question that the area where this cluster of campsites is located has undergone significant

artificial physical change, and is no longer in a natural state. (Cf. Buchanan v. City of

Newport Beach (1975) 50 Cal.App.3d 221, 227 (Buchanan ) [“an improvement … does

not necessarily mean the building of structures”].) The nearby paved road is an

improvement too, as reflected by the legislative committee comment we previously

quoted which characterizes “recreational access roads” as improvements, yet notes those

kinds of roads are protected by the separate immunity of section 831.4. (Milligan, supra,

24 Cal.3d at pp. 832–833.) None of the authorities cited by the County supports its

characterization of these changes as “trivial.” For example, the County cites our decision

14

in Fuller where amenities such as fire pits and restrooms on a beach did not render a

nearby rocky cliff “improved”; the reason, though, was not because of the nature of those

amenities but, rather, their distance from the accident site. (See Fuller, supra,

51 Cal.App.3d at pp. 936–937.) The County also cites Bartlett v. State of California

(1988) 199 Cal.App.3d 392, in which the court held that sand dunes on a portion of state

beach used as a recreational area for all-terrain vehicles were not improved even though

the state posted usage and speed limit signs nearby and provided some toilets at an

unspecified location. (See id. at pp. 396, 398.) But the evidence Zachary introduced

indicates that in Memorial Park the County did far more.

Zachary’s evidence showed the County: artificially altered the terrain by

removing nutrient-rich mulch down to bare dirt, and by installing a paved road, which

caused soil to become compacted and increased water run-off there which often causes

soil to become over-saturated; partially cleared the area of trees; and constructed

rudimentary amenities to facilitate cooking, eating and overnight sleeping in the area

where Zachary was injured and where the tree itself grew. This evidence raises triable

issues of fact as to whether the campsite was unimproved within the meaning of the

immunity statute.

Finally, the County argues that the policy implications of treating campsites as

improved are untenable. “[I]f a simple campsite in a forested mountainside is ‘improved’

for purposes of Section 831.2,” it contends, “then public owners of such property will be

faced with the ‘Hobson’s choice’ that the statute was enacted to avoid. To use Memorial

Park as an example, the County would be forced to eliminate campsites, remove roads to

access the interior of the park, and police hikers to assure they did not damage brush or

natural mulch. The alternatives would be to risk potentially ruinous liability or close the

parks altogether.”

We do not agree. A ruling that the County has improved one portion of its vast

public wilderness park by building improved campsites would not destroy immunity for

unimproved portions of the park. (Rendak, supra, 18 Cal.App.3d at pp. 288–289.) The

public would be free to use those areas, and would assume the risk of any dangers they

15

pose, exactly as the Legislature intended. (See Milligan, supra, 34 Cal.3d at p. 833.)

And although the County theoretically might consider eliminating improvements such as

campsites rather than shoulder responsibility for keeping those improved areas safe, such

a choice would not undermine the statute’s purpose. Section 831.2’s goal is to encourage

recreational use of unimproved public land (Milligan, at pp. 832–833), not to encourage

the construction of amenities and improvements on public property. Nor would interior

access roads be imperiled; they are protected by the separate statutory immunity of

section 831.4. In short, we do not think treating this cluster of campsites as “improved”

property for purposes of section 831.2 thwarts the Legislature’s goals.

In any event, we conclude that the evidence here raises triable issues of fact as to

whether the cluster of campsites where campsite D-1 is located is “unimproved”

property.

IV.

There Are Triable Issues of Fact As to Whether Artificial Changes Contributed to the

Tree’s Dangerousness.

The final issue the parties have raised, and another area in which the authorities

are somewhat in tension, is whether proof of a causal link between physical changes and

the accident is either necessary and/or sufficient for property to be considered

“improved.” Specifically, there is tension in the case law as to the legal significance of

evidence that artificial, physical changes to the environment have contributed to or

exacerbated a naturally occurring danger. Broadly speaking, some authorities have held

such changes to be legally insufficient to defeat immunity (principally addressing the

issue in the context of what constitutes a “natural” condition) (see, e.g., Goddard v.

Department of Fish and Wildlife (2015) 243 Cal.App.4th 350, 361 [“section 831.2 has

been broadly construed to provide immunity even where a natural condition has been

affected in some manner by human activity or nearby improvements”]; Knight v. City of

Capitola (1992) 4 Cal.App.4th 918, 927–929 (Knight); Tessier, supra, 219 Cal.App.3d at

pp. 313–315; Morin v. County of Los Angeles (1989) 215 Cal.App.3d 184, 189–190

(Morin); Fuller, supra, 1 Cal.App.3d at pp. 937–938; cf. Schooler v. State of California

16

(2000) 85 Cal.App.4th 1004, 1009–1010 [construing § 831.25]); one has held them

legally sufficient (see Buchanan, supra, 50 Cal.App.3d at pp. 225–2289); and most

recently, our colleagues in Division Three in Alana M. held such proof legally required,

as an additional element to be satisfied. According to Alana M., “immunity applies

unless an improvement or human conduct created, contributed to, or exacerbated the

degree of, the danger associated with a natural condition.” (Alana M., supra, 245

Cal.App.4th at p. 1489.) Stated otherwise, Alana M. required proof of “ ‘a causal nexus

between the dangerous condition and either human conduct or an artificial

improvement.’ ”10 (Ibid.)

It is unnecessary for us to examine these authorities at any length, or attempt to

reconcile them. Here, although the County argues that “a public property owner is

immune from liability for injury from natural conditions regardless of whether human

agency has contributed to risks attendant on those conditions,” and that the trial court

erred in denying summary judgment because evidence that human activity accelerated the

9

Later cases have limited Buchanan to its facts, but none have disagreed with it.

(See Knight, supra, 4 Cal.App.4th at p. 929 [“an extreme case” involving “unusual

facts”]; Morin, supra, 215 Cal.App.3d at pp. 189–190 [Buchanan involved improvements

that “physically alter[ed] the accident site”]; see also Tessier, supra, 219 Cal.App.3d at

pp. 314–315; Geffen v. County of Los Angeles, supra, 197 Cal.App.3d at p. 195, fn. 4;

Eben, supra, 130 Cal.App.3d at p. 425 [distinguishing Buchanan where improvements

“were few in number and remote from the accident site, which was unimproved” and

there was no evidence “link[ing] the improvements, casually or otherwise, with the

accident”]; see also Mercer, supra, 197 Cal.App.3d at p. 165 [Buchanan illustrates the

principle “that to qualify public property as improved . . . the improvements must change

the physical nature or characteristics of the property at the location of the injury to the

extent that it can no longer be considered in a natural condition”].)

10

Applying that principle, Alana M. concluded section 831.2 applied in that case,

in part because there was no evidence that artificial improvements or human conduct

contributed to the tree’s danger in that case, such as evidence “that leveling the area of

the campsites weakened the tree and made it more likely to fall.” (Alana M., supra, 245

Cal.App.4th at p. 1491.) Alana M. also held the required causal nexus could not be

established by the fact the improved campsites would attract people to the area, and thus

increase the likelihood someone would be injured by a falling tree. (See id. at pp. 1491–

1492.)

17

effect of Armillaria infection was legally irrelevant, elsewhere in its briefing the County

appears to concede that changes to the natural environment of public property that bear

some causal connection to a plaintiff’s injury are relevant to determining whether

property remains “unimproved.”11 And, indeed, that concession appears to be well-

founded, for the policy of relieving public entities from the duty of making property in its

natural state safe (see Milligan, supra, 24 Cal.3d at p. 833) is not furthered by relieving

them, when they do choose to improve property, of liability for making natural hazards

there more dangerous. “Since the policy on which the immunity is based is not

applicable . . . , the immunity should not be applicable.” (Milligan, supra, 24 Cal.3d at

p. 833.) A contrary interpretation would immunize a public park owner from liability for

a tree that crashes onto a restroom, a park ranger’s office or a visitor center, as long as the

tree grew in undisturbed soil some distance away as in Alana M., even if those

construction activities undermined the integrity of the tree’s root system. Or from a

rockslide that pummels a picnic or campground area, even if jackhammers or other heavy

equipment used in the construction of roads and other amenities dangerously destabilized

a nearby mountain slope. We do not think conferring immunity in those instances would

serve the Legislature’s goal.12 (See City of Santa Cruz v. Superior Court (1988)

198 Cal.App.3d 999, 1006–1007 [“the Legislature intended to preclude liability for

11

The County argues, for example, “property is not ‘improved’ for purposes of

Section 831.2 . . . unless the ‘improvements’ of which plaintiff complains caused the

event leading to injury. Changes to property that do not and cannot be considered to have

caused the injury (picnic tables) have no relevance . . . .” Likewise, it says “immunity is

not avoided by changes to unimproved property absent a showing that those changes

caused the accident.”

12

We note that beaches and bodies of water may present a different calculus,

because they are protected by section 831.2 without regard to their improved or

unimproved status. As explained in Knight, “[o]n its face the last clause

of . . . section 831.2 provides public entities with immunity, without express reference to

the improved or unimproved status of the property, for injuries caused by ‘any natural

condition of any lake, stream, bay, river or beach.’ ” (Knight, supra, 4 Cal.App.4th at

p. 927, first italics added.) The statute’s wording “vitiate[s] the ‘unimproved’

requirement as applied to public streams, bays, rivers [citation], and beaches.” (Id. at

p. 928; accord, Morin, supra, 215 Cal.App.3d at p. 189.)

18

unimproved natural conditions unless the public entity engaged in conduct which actively

increased the degree of dangerousness of a natural condition”].)

We express no opinion, however, as to whether proof of a causal link is merely

sufficient to defeat immunity or, as Alana M. held, necessary. Zachary contends proof of

a causal connection between improvements and the accident is necessary to establish that

property is improved and thus accepts the burden of having to prove this. Therefore, for

purposes here, we will assume without deciding that proof that human conduct or

improvements created, contributed to, or exacerbated the dangerousness of a natural

condition is not only a sufficient but necessary, additional element of establishing that

property is “improved.” (See Alana M., supra, 245 Cal.App.4th at p. 1489.)

In this case, a trier of fact could conclude that man-made physical changes in the

vicinity of the accident site contributed to the tree’s dangerousness and thus were

causally linked to its falling. Unlike in Alana M., Zachary introduced two expert

declarations, those of Leggitt and Downer, that, as described above, detailed the negative

impacts of construction activity on the tree’s health that made the tree more susceptible to

developing the Armillaria infection that ultimately caused it to fall.13 For the first time in

its reply brief, the County argues there is no foundation for those experts’ statements

about the historical facts concerning the construction activity that was undertaken when

the campground was built. But, unlike in the authority the County cites (where the

question was not even at issue on appeal) (see City of Santa Cruz, supra, 198 Cal.App.3d

13

We limit our analysis to evidence of physical impacts that did not result

exclusively from normal use of the campground for its intended recreational purpose. On

this point, we agree with the County that mere public use of property cannot render it

“improved” so as to defeat immunity, because otherwise the statute’s purpose would be

thwarted. (See Alana M., supra, 245 Cal.App.4th at pp. 1491–1492; cf. Schooler v. State

of California, supra, 85 Cal.App.4th at pp. 1009–1011 [public entity held immune from

liability for bluff erosion notwithstanding contributing impact from pedestrian traffic]

[construing § 831.25].)

19

at pp. 1004), the County made no such objections below or in its opening brief to this

court, and therefore has waived them.14 (See Code Civ. Proc., § 437c, subd. (d).)

In short, in this case there is evidence that artificial improvements or human

conduct “weakened the tree and made it more likely to fail.” (See Alana M., supra,

245 Cal.App.4th at p. 1491.) Accordingly, every element of Alana M. was satisfied and

the trial court properly denied summary judgment for the County.

At bottom, although the majority of courts before us have, on other facts, held

section 831.2 applicable as a matter of law, this case, on this record, presents exactly the

situation envisioned by the lead drafter of the Government Claims Act, Professor Arvo

Van Alstyne. (See Meddock, supra, 220 Cal.App.4th at p. 179.) According to Professor

Van Alstyne, “[t]he distinction between the ‘developed’ land 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 . . . .” (Van Alstyne, A Study Relating

to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 495–496.)

The very first reported case to construe the statute contemplated that possibility too. (See

Rendak, supra, 18 Cal.App.3d at pp. 288–289 [acknowledging there may be cases

presenting a jury triable question of fact “as to whether the unimproved danger area is

‘within and can be said to be a part of the improved area’ and thus outside the immunity

extended by section 831.2”].) This is such a case.

14

At oral argument, the County asserted that it did object in the trial court to the

experts’ purported lack of foundation, but its briefing in this court does not cite anything

in the record reflecting such an objection and we can find none. Zachary’s counsel

asserted at oral argument that there was no such objection, the register of actions does not

show that the County filed any written objections to Zachary’s evidence with its reply

papers, and no such objection was made at the hearing.

20

DISPOSITION

The petition for writ of mandate and/or prohibition is denied. The stay of trial

court proceedings this court entered on February 4, 2016, as between plaintiff Zachary

Rowe and defendant County of San Mateo is hereby lifted. This decision shall become

final 30 days after its filing.

21

APPENDIX

Figure 1

22

Figure 2

23

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

County of San Mateo v. Superior Court (A146077)

24

Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Steven L. Dylina

Counsel:

Ropers, Majeski, Kohn & Bentley, Susan H. Handelman, Dennis J. Ward, Terry

Anastassiou for Defendant and Petitioner.

No appearance for Respondent.

Law Office of Gerald Clausen, Gerald Clausen; Rouda, Feder, Tietjen & McGuinn,

Timothy G. Tietjen for Real Party in Interest.

25