# Stone v. State of California

> California Court of Appeal · May 23, 1980 · 106 Cal. App. 3d 924

URL: https://www.frixlaw.com/law-library/cases/9723827

## Case

- **Full name:** JAMES T. STONE Et Al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent
- **Court:** California Court of Appeal
- **Decided:** May 23, 1980
- **Citations:** 106 Cal. App. 3d 924; 165 Cal. Rptr. 339; 1980 Cal. App. LEXIS 1926
- **Precedential status:** Published
- **Opinion:** Dissent by Watt
- **Judges:** Blease, Watt
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723827

## Opinion text

WATT, J. *
I dissent.
Summary judgment was granted on the ground that defendant was immune under the California Tort Claims Act, Government Code section 845.
Cal Expo can, without distortion of concepts, be described as a “Disneyland” operated by the State of California. There is no serious question but that Disneyland has a duty of reasonable care to prevent assaults on the public by members of the public visiting Disneyland.
If the cause of action here alleged against Cal Expo was realleged against Disneyland, a cause of action would have been stated and the motion for summary judgment would have to have been denied. The *932 private proprietor of a place of public amusement has a duty to maintain order on his premises and may be held liable for injuries resulting from dangerous activities of third persons, whether such acts are accidental, careless, or intentional, if he does nothing to restrain or control such conduct after he knows, or in the exercise of reasonable care should have known, of it. He must exercise reasonable care to protect patrons from assaults by other patrons if he might reasonably have anticipated such conduct. (4 Am.Jur.2d, Amusements and Exhibitions, §§ 59-60, pp. 179-182; 47 Cal.Jur.2d, Theaters, Shows, Etc., § 19 (Acts of Patrons) pp. 305-306; and Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802 [ 167 P.2d 729 ], wherein the court said: “[I]t is clear that the occupier is under a duty to protect visitors such as plaintiff by taking appropriate measures to restrain conduct by third persons which he should be aware of and which he should realize is dangerous.” (Id., at p. 810.))
To say that the state, in the operation of Cal Expo, does not have an equal responsibility to the public visiting Cal Expo is to say that, in fact, a visitor to Cal Expo is denied equal protection of the laws.
Are we going to say, despite the clear language of the Constitution that “no state shall deny any person... equal protection under the laws,” that this court must recognize a constitutionally permissible denial of equal protection of the laws? Is not a constitutionally permissible denial of equal protection of the laws a contradiction in terms?
If there is to be a different standard for the government than for private entities, which should set the example?
The argument for a lower standard for the government is frequently urged on the basis of what is quaintly termed “sovereign” immunity. In this nation of a free people is it appropriate to use the term “sovereign” as to the government? While it may well be appropriate to use the term “sovereign” with respect to one government in its relationship to another government, in this nation it is the people who are sovereign and the government is but the agent of the sovereign people. Is it not incongruous to say that the agent can create for itself “sovereign immunity” from its masters—the people?
Nineteen years ago, in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [ 11 Cal.Rptr. 89 , 359 P.2d 457 ], Justice Traynor wrote: “The rule of governmental immunity for tort is an anachronism, with *933 out rational basis....” (Id., at p. 216.) The passing of a statute has not made what was irrational rational. The California Tort Claims Act in fact legislates unequal protection. The little children who visit Cal Expo are entitled to protection of the laws equal to the little children who visit Disneyland.
On the issue of whether the California Tort Claims Act, Government Code section 810 et seq., is unconstitutional as a denial of equal protection of the laws, the discussion by Justice Tobriner in Brown v. Merlo (1973) 8 Cal.3d 855, 881-882 [ 106 Cal.Rptr. 388 , 506 P.2d 212 , 66 A.L.R.3d 505 ], is thought provoking, particularly where he wrote: “Although the Muskopf decision itself did not rest on constitutional grounds, because the governmental immunity doctrine at issue was of judicial rather than legislative creation, the opinion’s reasoning—relying on the unequal treatment afforded similarly situated persons—parallels the constitutional principle embodied in our state and federal equal protection clauses.” (Id., at p. 881.) Then, in discussing the Illinois Supreme Court case of Harvey v. Clyde Park District (1965) 32 Ill.2d 60 [ 203 N.E.2d 573 ], Justice Tobriner said: “The Illinois Supreme Court, testing the governmental immunity statutory scheme against the requirements of a state constitutional ‘equal protection’ provision similar to the applicable California provision, found the challenged statutory pattern unconstitutional on grounds equivalent to those underlying the Muskopf decision.” (Fn. omitted.) (Brown v. Merlo, supra, at pp. 881-882 .)
No California case has discussed the question of whether Government Code section 845 is unconstitutional as a denial of equal protection of the laws. There are a few cases which assume without analysis that the California Tort Claims Act is constitutional with the exception of Flournoy v. State of California (1964) 230 Cal.App.2d 520 [ 41 Cal.Rptr. 190 ], in which the equal protection point was discussed rather fully and its constitutionality upheld. The persuasiveness of Flournoy, however, is substantially diminished because of its pointed and heavy reliance on Ferreira v. Barham (1964) 230 Cal.App.2d 128 [ 40 Cal.Rptr. 739 ], which is referred to in Flournoy three times (pp. 523, 524 and 535) with clear approval. Ferreira was the guest statute case which was so clearly overruled by Brown v. Merlo, supra, albeit sub silentio. As to equal protection of the laws, the rationale of Flournoy is the rationale of Ferreira , and the rationale of Ferreira was rejected in Brown , wherein the Supreme Court ended its opinion by saying: “We have concluded that such irrational discrimination cannot be *934 squared with the applicable constitutional standards.” (Brown v. Merlo, supra, 8 Cal.3d at p. 883 .)
Repeatedly it has been held that a case is not authority for a point not discussed. Should a case be deemed authority after its rationale has been specifically rejected by the Supreme Court? The answer must be no.
I therefore am of the opinion that Government Code section 845, purporting to create an immunity for public entities and public employees with respect to failure to establish a police department, or to provide police protection, or to provide sufficient police protection service is unconstitutional as a denial of equal protection of the laws under the state and federal Constitutions. Liability or nonliability with respect to such matters should turn, not on any concept of immunity, but on basic concepts of doing, or failing to do, what a reasonable person would or would not do under the same or similar circumstances and on basic concepts of legal causation.
While ruling that Government Code section 845 is unconstitutional, I am of the opinion that even if that statute were deemed constitutional the motion for summary judgment should have been denied. As we have earlier pointed out, if a private entity was operating Cal Expo, summary judgment would have to be denied under the facts presented in this case.
There are three cases which indicate that immunity, if recognized under Government Code sections 818.2, 820.2, 821, 845 or 845.8, is to be narrowly restricted, that discretionary immunity applies only to carefully balanced basic policy decision or planning as opposed to operational decision, that Government Code section 845 is meant to apply only to police protection in the sense of protection against crime as distinguished from protection against negligence in a particular situation, and that if liabilities imposed by legislation outside the Tort Claims Act serve a purpose that is frustrated by an immunity under the Tort Claims Act the statutory liabilities must prevail.
In Mann v. State of California (1977) 70 Cal.App.3d 773 [ 139 Cal.Rptr. 82 ], a directed verdict in favor of the state was reversed where a highway patrol officer, after assisting the occupants of two stalled cars on a freeway left the scene without advising those present that he was leaving and without putting out flares or waiting for a tow *935 truck to assume a protective position with its amber flashing light. The stranded people were injured by another passing motorist. The state urged discretionary immunity under Government Code section 820.2 and police protection immunity under Government Code section 845. The court held that discretionary immunity did not apply because negligence in the ministerial performance of investigation was beyond the protection of the statutory discretionary immunity, and “[t]his is not the type of failure of police protection that section 845 was intended to immunize.” (Id., at p. 778.) Similarly, we say that failure of protection for the public called for at an amusement park such as Cal Expo “is not the type of failure of police protection that section 845 was intended to immunize.” (Ibid.)
In Duarte v. City of San Jose (1979) 100 Cal.App.3d 648 [ 161 Cal.Rptr. 140 ], a summary judgment in favor of the city was reversed in a holding that even though Government Code section 845.8 immunized the city and police officers who left an arrested drunk driver in their police car with the keys in it and the motor running, with the “surprising” result that the drunk drove away in the police car with the officers in hot pursuit until the inevitable happened—the drunk driving the police car struck and seriously injured Duarte while he was mowing his front lawn—nevertheless, the city was liable to Duarte for negligence of its police officers in the operation of a motor vehicle in violation of Vehicle Code section 17001. The court said: “The second approach and the one which we apply in this case, is to consider whether the liabilities imposed by legislation outside the 1963 act serve a purpose that is frustrated by an immunity under the act. If so, Van Alstyne suggests, and we agree, that it is reasonable to conclude that the statutory liabilities must prevail.” (Id., at p. 656.)
The most recent case of Clemente v. State of California (1980) 101 Cal.App.3d 374 [ 161 Cal.Rptr. 799 ], involved the reversal of a demurrer sustained without leave to amend in a case in which a highway patrol officer failed to get the name of a motorcyclist who had injured a pedestrian. The trial court ruled that the state was immune as the negligence was merely a failure to enforce a law and, as such, was immune under Government Code sections 818.2 and 821. The Court of Appeal said that while broadly speaking an investigation by a highway patrol officer of a traffic accident is a law enforcement activity, such activity does not constitute law enforcement within the meaning of the Government Tort Liability Act. “This narrow interpretation of the scope of the failure to enforce a law immunity... is consistent with the restricted *936 scope of the discretionary immunity (Gov. Code, § 820.2)... our Supreme Court enunciated in Johnson v. State of California (1968) 69 Cal.App.2d 782 , 793-800.. .and with that this panel gave to the lack of police protection immunity (Gov. Code, § 845) in Mann v. State of California (1977) 70 Cal.App.3d 773, 778-779 . ..." (Id., at p. 378.) The court further said that what was involved was negligence in the conduct of a discretionary investigation and that: “Neither the discretionary immunity of Government Code section 820.2, nor the more specific discretionary immunity of failure to enforce a statute (Gov. Code, §§ 821, 818.2) immunizes the officer and the state from the legal consequences of this negligence.... Government, through its agents, is held to the same standard of care the law requires of private citizens in the performance of duties imposed or assumed. (See Sava v. Fuller (1967) 249 Cal.App.2d 281, 290 ... .)” (Id., at p. 379.)
In the case at bar the state made a policy decision not to use state police for security at Cal Expo, but instead to use a private security patrol which, plaintiffs assert, failed to use reasonable care in exercising their responsibilities. Under the case law the state cannot escape liability if the facts are sufficient to convince a jury that the private security patrol failed to exercise reasonable care and that such failure was a legal cause of injuries to plaintiffs.
I would reverse the judgment and remand the case to the trial court for further proceedings consistent with this dissenting opinion.
A petition for a rehearing was denied June 16, 1980, and appellants’ petition for a hearing by the Supreme Court was denied July 30, 1980.
Assigned by the Chairperson of the Judicial Council.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723827. Public record. Not legal advice.