# Decker v. City of Imperial Beach

> California Court of Appeal · April 4, 1989 · 209 Cal. App. 3d 349

URL: https://www.frixlaw.com/law-library/cases/9719904

## Case

- **Full name:** GLENN A. DECKER, Plaintiff and Appellant, v. CITY OF IMPERIAL BEACH, Defendant and Respondent
- **Court:** California Court of Appeal
- **Decided:** April 4, 1989
- **Citations:** 209 Cal. App. 3d 349; 257 Cal. Rptr. 356; 1989 Cal. App. LEXIS 301
- **Precedential status:** Published
- **Opinion:** Concurring in part by Wiener
- **Judges:** Kremer, Wiener
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WIENER, J., Concurring and Dissenting.
I agree that absent gross negligence, Government Code section 831.7 immunizes the City of Imperial Beach (City) from emergency rescue service. I disagree, however, that there are no triable factual issues as to the City’s gross negligence.
In the interest of brevity I will not belabor what I believe is the misapplication of the standards governing summary judgment to the facts here. (See maj. opn., ante, pp. 353-354.) I prefer to focus on the human aspects of this case.
Understanding the meaning of gross negligence in the context of this case does not require scholarly insight into an arcane legal subject. The simple question before us is whether there are triable factual issues relating to the City’s gross negligence. Significantly we are not asked to decide, as the majority would have us believe, whether Decker successfully established gross negligence. That determination is not required in a summary judgment proceeding. “[T]he trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” {Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [ 252 Cal.Rptr. 122 , 762 P.2d 46 ].)
Here without sufficient factual support the majority say as a matter of law that the action taken by the fire chief to prevent any rescue effort was perfectly proper. Perhaps they are correct. It may well be that the chief made a prudent judgment call or at worse acted only negligently. But from *363 the information in the record before us I cannot say that this conduct did not represent a substantial departure from ordinary care. I do not know what objective criteria, if any, the fire chief used to formulate his decision barring everyone on the beach from trying to save Gary. What investigation did the fire chief take before issuing his blanket directive preventing anyone from attempting to rescue this drowning young man? What authority did he have to effectively intimidate those who were willing to be Good Samaritans from acting as such when there is nothing in this record to support a finding that their efforts would not have been successful? I would hate to think that bureaucratic considerations dominated the chiefs decision. We may never know. The summary judgment remedy, characterized as a drastic remedy to be used with caution, has replaced a trial on the merits.
Although the appellate record is purportedly cold I cannot leave this case without admitting that I will remain haunted by the specter of this young man’s lengthy, unsuccessful struggle against the power of the sea, fighting to stay afloat, emotionally assisted by what can only be described as a callous call from the beach that “help was on the way.” In no way can this case be compared to the drowning described in City of Santa Cruz v. Superior Court (1988) 198 Cal.App.3d 999 [ 244 Cal.Rptr. 105 ] where lifeguards came to assist the victim as soon as they were able to do so, about 20 minutes after the accident occurred. All those participating in the rescue efforts were certified emergency technicians. It was also undisputed that the lifeguard assigned to the area was elsewhere properly attending to another problem when the accident happened. (At p. 1002.) I agree the facts in City of Santa Cruz do not present triable factual issues on the question of the City’s gross negligence. I cannot agree here. This case should be decided on the evidence presented in a trial and not on the documents before us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9719904. Public record. Not legal advice.