holding that California governmental tort immunity statute would apply if decayed eucalyptus tree limb fell on user of governmental property and would not apply to injuries caused to nonusers on adjacent property
How later courts described this case
- holding that California governmental tort immunity statute would apply if decayed eucalyptus tree limb fell on user of governmental property and would not apply to injuries caused to nonusers on adjacent property
Written by the judges who cited it.
The opinion
KAUS, J.
I concur in the result. I respectfully suggest that the issue whether section 831.2 immunity applies to nonusers of public property is irrelevant. The immunity affects only liability for injury caused by natural conditions. It is, however, undisputed that the eucalyptus trees involved in this case were, in contemplation of law, an artificial condition. The parties stipulated that “eucalyptus trees are not native to California” and that “plaintiff’s expert will testify that the trees were planted by man.” No other *836 evidence on the point was introduced. In Coates v. Chinn (1958) 51 Cal.2d 304, 308 [ 332 P.2d 289 ], we said: “The eucalyptus trees planted alongside the highway constituted ‘a nonnatural or artificial condition’ created on the land as distinguished from a ‘natural condition’ of the land, ‘irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.’ (Rest., Torts, § 363, com. b.)” 1
Since the judgment below was based on an immunity which simply does not apply to the facts of this case, I join in the reversal.
Comment b to section 363 of the Restatement Second of Torts reads as follows: “b. Meaning of ‘natural condition of land. ’ ‘Natural condition of the land’ is used to indicate that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them. On the other hand, a structure erected upon land is a non-natural or artificial condition, as are trees or plants planted or preserved, and changes in the surface by excavation or filling, irrespective of whether they are harmful in themselves or become so only because of the subsequent operation of natural forces.” (My italics.)