Petition — Delta Farms Reclamation District No. 2028 v. Superior Court of the County of San Joaquin
Supreme Court brief1983
Ask Donna
What actually matters in this document.
Text
g3-195 |= “Tres
m D
nie AUG 24 1963
In the Supreme CourtS25.9°"s
OF THE °
United States
OctoBer TERM, 1983
Detta Farms Rectamation District No. 2028,
Petitioner,
Vs.
Superior Court or THE County oF San JoaQvin,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF CALIFORNIA
Betty Wo.LrFE
MeMeERING, DeEMers, Honer,
VARANINI, Hurst & CRowLe
P. O. Box 590
Sacramento, CA 95803
Telephone (916) 444-9420
Counsel for Petitioner
August 1983
BOWNE OF SAN FRANCISCO, INC. © 190 NINTH ST. * S.F.,CA 94103 © (415) 864-2300
QUESTION PRESENTED
Whether a California Reclamation District, which con-
sists of private landowners who may be ultimately liable to
persons who are injured on property included in the Dis-
trict as a result of negligence of the District, is entitled to
the same immunities from tort liability under California
Civil Code section 846 as a private individual, when said
real property is used for recreational purposes as defined
in California Civil Code section 846.
il
TABLE OF CONTENTS
Page
cee slivecinneseninnccctesvecccoomecesoesetntes i
Teen ea enisstcacencecsssenenceseswininndiemecses case 1
san crnsasesnesnnssuoceseoracecenesesses 2
Statutory provisions involved ..................:sssccsssscscesesseeeees 2
Neen ee eco. ss csencusastnncessncensentores 2
Reasons for granting the petition 0.0.0.0... 7
1. California Civil Code Section 846 as interpreted
by the California Supreme Court denies peti-
tioner’s right to equal protection of the laws, as
guaranteed by the Fourteenth Amendment to
the United States Constitution ......0..0.000.0000.. 7
2. Reclamation districts have standing to raise an
equal protection argument .................:ccccceeeseeeeeees 8
3. The decision of the California Supreme Court
regarding the lack of immunity for reclamation
districts has far-reaching implications ................ 14
4. Denial of “recreational use” immunities to
reclamation districts will affect the general
a 17
EE SESE 18
i... csnncnscocesnenesoccoscoscees A-l
Neen. csscesenccnsontiees A-11
ra sesmesetrevoncscenssesveeeeessrseees nigaiiiiein A-30
iii
TABLE OF AUTHORITIES CITED
Cases
Page
El Paso County Water Improvement District No. 1 v.
City of El Paso, 133 F.Supp. 894 ..................c.ccccccssssscsoee 9
McCord v. Ohio Div. of Parks & Rec., 54 Uhio St.2d 72.. 15
McGee v. International Life Ins. Co., 355 U.S. 220 ........ 16
Metro. Dade County v. Yelvington 392 So.2d 911 .......... 15
Moore v. City of Torrance, 101 Cal.App.3d 66 «0.0.0.0... 6
Nelson v. City of Gridley, 113 Cal.App.3d 87 «0.0.0.0... 5, 6
People v. 8. Williams, 66 Cal. G67 .n..ccccsocesesnscnsessesessoeees 9, 10
Scheck v. Houdaille Constr. Materials, Inc., 279 A.2d
BF scaiennsinssitenshcassiaipeapiebialbcabsansScsaissashapabeinedabiegeunddemnahiabetial 14
Syrowick v. Detroit, 119 Mich. App. 343 oe 15
Thompson v. United States, 592 F.2d 1104 oe. 8
Trimblett v. New Jersey, 383 A.2d 1146 o.oo 15
Wight v. State, 403 N.Y.S. 2d 450 oc eeceeeeneenees 15
Williams v. Mayor and City Council of Baltimore, 289
Wo is HOU» ecechdoen sodeinsaaaiadetinalstihiceudassdinsstechdadstensinanalseahamdilanoaal 10
Constitutions
United States Constitution, Fourteenth Amendment ....
sucieiesissnssibis et clasathasbaciignbiciansaaaeceanadamaieccdsa tal 2, 7, 8,10
Texas Constitution, Article 16, Section 59 .....0.0.00.0......... 16
iv
Taste or AvuTuorities CITED
Statutes
Page
Cal. Civ. Code:
re ee i ae 5
RUIN «5s les hodichbbhashlcsittiodinisbarnanbidetannic seaman 5
IE icin cecscastpassckceahlceibbstceas ogtueisepaioesaepsoadinionoaatioaaasnaial passim
Cal. Gov. Code:
BITE astinsincs iisadaioinlhiccdvnethnedstnnlethiiiadephnihita ate aaaomeadieal 9,13
I cicriese seoesieias cece shave ceabiomiiceineeoeaenmnen Seovetesaaiasbiadieeite 9,10
NED 1. tnsiainecdinescesmaenneinaasimuinddapanienan 13
Cal. Water Code:
TE nah RAL ETRE Te OT NIN UA 8: 10, 11
SIE cctens: scl pariagh ssadidenniaedineaipieatidaialgamadenmann 13
MIEN. ociaits iin. s.chistanssniadtasciesamiandbaasicatusessaepebcaeice aaa 13
eee dacaissrnspssohinsauceansastactsiceelchdaenbsahcassmeranionnncdevonncesamamaigaterde 11
STINT ©: sighs iccsssstacebcccspunescenhataceriateceasitaneantainiulanyiateiaastte 11
III slic cauiiash dino sean stdscdantn nates cedectaisapaonaiecinlnemasaieanenilaatad ll
SII siecschanashe bach cacsiuiocsilnesiiancekaodunmsenbioid cesbodtiaiigabeaaeacveninn 11
Gee SR ee Re eo Ne NL e ee 11
| __PRATRERS Is Sen Spm a tra ns MATRA a rn ev RYE UT Ue OND EE A 11
SET ici cietandivstathehsnahs cotiniisoecaanisannmakigarkdepacdiboadcoe 12
i STITT. aiesiciacsavclsandsibeeibaceaiebapiichaisnhciatededaiadaocsistandnosanaceasieiig 12
SII 4 tsi c,d icuts hati eahcedetadnuntnlagananeteiaubinestiniaadanaiaaele vad 13
isuIOUIIIDY 1 cic cuealebslitcnicciehetosaiarianobdinbceulbegosninoiiarwekaneadseaeecdaa 12
SUITE scissile ii tiectiensinioneebdalabio onda 14
REE Ne eter Se eR OE 9, 12,14
PUTED dikcalesiceciticeshchcaienibsinesbiaubaidinidbiasbiniiasiniaaéimebamtninnnaiies 12
III » casos cissieuctithieniinlseaidehepsiimivaiccseneaéccadiasanamnensddiamaantenieaaiien 13
IIE sdeisheanaindadainidliniaccitneesnaiapiamtiniatiaediaaedaimanenl 9
Del. Cade Amm. tithe 7, § GOOLE .............c.cccccscccsccecossccsccecseesese 14
Towa Code Ann. § 112C.2-1210.7 ..0......0........ccccesecscescececerees 15
v
TaBLE oF AUTHORITIES CITED
STATUTES
Page
Mass. Gen. Laws Ann.:
Re SE GY ac iscsessictacesncncsnitcnnsdvanksiceininiegmeenianenmnmaaalntd 15
6 NG | eee amen on ernie Ltr SRO SERS IrY ONT RTA 16
N.C. Gen. Stat. :
I ic iscsckstsenisicaesnreishensrcicacsicunsioniemoienialonnaamiainliae 16
I oecccinasinrincsitenraceeneattenntniinnnieniamaeiehaean 16
© FOR oscinccesantespeinrecuidincinnesananaanmannatae 16
oben; Gah. Baan, "Tee GE 6 Ta wiscsecscsenisisercissceiencncernsrerietinncin 16
Tex. Red. Civ. Stat. Ann. Article (a), 6252-19, $3 ........ 16
Wis, hak. Am. 6 BBD aeccinnctceee 15
BO UR, 6 TET EY ccicsesctessiniereenssstioinsiencoaanaamalas 2
Miscellaneous
Note, Torts-Statutes-Liability of Landowner to Per-
sons Entering for Recreational Purposes, 1964 Wis.
aT, TOD cvciiccnncicinisesennnsenndnendionineaanenneebiiaaataan 15
Bulletin No. 37, Financial and General Data Pertain-
ing to Irrigation, Reclamation and Other Public Dis-
tricts in California, Cal. State Printing Office (1930) 18
No.
In the Supreme Court
OF THE
United States
Octoser TERM, 1983
Deuta FarMs Recuamation District No, 2028,
Petitioner,
Vs.
Svurerior Court oF THE County oF SAN JoaQuin,
Respondent.*
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF CALIFORNIA
The petitioner Delta Farms Reclamation District No.
2028, respectfully prays that a writ of certiorari issue to
review the judgment and opinion of the Supreme Court of
the State of California entered in the above entitled case
on April 4, 1983.
OPINIONS BELOW
The opinion of the Third District Court of Appeal for
the State of California and the opinion of the California
Supreme Court regarding this issue appear in Appendices
A and B, respectively, attached hereto.
*The other parties to this case are real parties in interest,
plaintiffs, Mable Fernandez, Mary Alice Caston and Karen Denise
Edwards.
)
GROUNDS FOR JURISDICTION
The judgment of the California Supreme Court was
entered on April 4, 1983. A timely petition for rehearing
was filed with the California Supreme Court and such peti-
tion was denied on May 26, 1983, and this petition for cer-
tiorari was filed within ninety days of that date. This
court’s jurisdiction is invoked under 28 U.S.C. section
1257(3).
STATUTORY PROVISIONS INVOLVED
This case involves the provisions of California Civil Code
section 846, the full text of which appears in Appendix C
attached hereto.
This case also involves Section 1 of the 14th Amendment
to the Constitution of the United States. Said section reads
as follows:
“Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the state
wherein they reside. No state shall make or enforce
any law which shall abridge the privileges or immuni-
ties of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, with-
out due process of law; nor deny to any person within
its jurisdiction the equal }. otection of the laws.”
STATEMENT OF THE CASE
On or about June 23, 1979, two miners, Pacquita Hill and
Cheryl Fernandez, drowned while wading in a waterway
alleged to have been maintained and controlled by Delta
Farms Reclamation District No. 2028, (hereinafter referred
to as “Petitioner”). Following the deaths of said minors a
3
civil action was initiated on or ahout November 30, 1979,
in the Superior Court of the State of California in and for
the County of San Joaquin, entitled “Mabel Fernandez,
Mary Alice Caston and Karen Denise Edwards, Plaintiffs,
vs. Delta Farms Reclamation District No. 2028, et al., De-
fendants, Action No. 148335.”
Plaintiffs Mabel Fernandez and Karen Denise Edwards
are the mother and sister, respectively, of the decedent
Cheryl Fernandez. Plaintiff Mary Alice Caston is the
mother of decedent Pacquita Hill. The underlying civil ac-
tion claimed damages for the wrongful deaths of the dece-
dents and for emotional distress allegedly suffered by the
plaintiffs as a result of the drownings.
On or about May 19, 1979, a First Amended Complaint
was filed by said plaintiffs, alleging that the drownings of
the two minors were proximately caused by Petitioner's
breach of duty to warn foreseeable recreational users of its
waterways of dangerous conditions which existed as a re-
sult of dredging of the waterways. The Amended Com-
plaint further alleged that the drownings of the minors
were observed by plaintiffs, causing said plaintiffs to be-
come ill and further causing plaintiff Karen Denise Ed-
wards to suffer a miscarriage of her unborn fetus.
Petitioner filed a demurrer to the First Amended Com-
plaint on or about June 12, 1980, stating, among other
grounds, that the complaint filed by plaintiffs did not state
a cause of action because, pursuant to California Civil Code
section 846, property owners are immune from liability for
failure to warn recreational users of dangerous conditions
on their property, there being no distinction to the status
of the property owner. i.e. public or private.
4
Plaintiffs’ response to Petitioner's demurrer contended,
among other grounds, that wading was not a recreational
use protected by California Civil Code section 846 and
thus Petitioner was not immune under said section. At the
hearing of the demurrer on the First Amended Complaint,
held on July 7, 1980, the trial court overruled the demurrer.
For other reasons, a Second Amended Complaint was
filed by plaintiffs and Petitioner again filed a demurrer to
this Second Amended Complaint on the same grounds as
stated above. A hearing was held on this demurrer to Plain-
tiffs’ Second Amended Complaint, on October 2, 1980. The
trial court again overruled Petitioner’s demurrer in part,
specifically ruling that wading was not a recreational ac-
tivity. In the meantime, before another trial court judge,
co-Defendant and property owner Riverview Investment
Company, Inc. demurred on the basis of Code of Civil Pro-
cedure section 846. The court found that wading was recre-
ational, thereby applying the immunity of Code of Civil
Procedure section 846, and sustained their demurrer.
Following the ruling of the trial court that Petitioner’s
demurrer had no merit, Petitioner sought a writ of manda-
mus from the Appellate Court for the Third District of the
State of California, to compel the trial court to sustain
Petitioner's demurrer. At this stage of the proceedings,
Petitioner was arguing that the type of activity that the
decedents were engaged in at the time of their deaths (i.e.,
wading) was included in the definition of “recreational pur-
pose” under California Civil Code section 846. Petitioner
further argued that because of its interest in the real prop-
erty where the accident allegedly occurred, Petitioner was
immune from liability under California Civil Code sec-
tion 846.
5
In its petition for writ of mandamus, Petitioner argued
that even though it was a public entity, Petitioner was en-
titled to any immunity provided by statute and to any de-
fense that would be available if it were a “private person”.
Because the trial court had based its overruling of the
Petitioner’s demurrer on the grounds that “wading” was
not included in the definition of “recreational purpose”
under California Civil Code section 846, Petitioner did not
etress the issue of whethe ld be entitled to the same
immunity as any private person.
In the opinion of the Third District Court of Appeal of
the State of California (attached Appendix A) filed on No-
vember 13, 1981, the Appellate Court spoke very briefly
to the issue of the application of California Civil Code sec-
tion 846 to allow Petitioner immunity for the alleged acci-
dent. Section III page 9 of the attached opinion states
succinctly that Petitioner has no immunity because Cali-
fornia Civil Code section 846 “. .. does not apply to public
entities,” citing to the case of Nelsen v. City of Gridley,
113 Cal.App.3d 87, 169 Cal.Rptr. 757 (1980).
Following the ruling of the Third District Court of Ap-
peal of California denying the petition for writ of manda-
mus, Petitioner brought a petition for rehearing in that
same appellate court. Petitioner’s argument on its petition
for rehearing was that under California Government Code
sections 815(h),’ the immunities of California Civil Code
‘California Government Code section 815(b) states, in pertinent
part: “Except as otherwise provided by statute: ... (b) The
liability of a public entity established by this part (commencing
with Section 814) is subject to any immunity of the public entity
provided by statute, including this part, and is subject to any
defenses that would be available to the public entity if it were
a private person.” (Emphasis added. )
6
section 846 should be applied to public entities in the same
manner as they are applied to private persons. The Third
District Court of Appeal rejected Petitioner’s argument
and on December 9, 1981, denied the petition for rehearing
without modification of its previous opinion.
In order to exhaust all state court avenues of review of
this issue, Petitioner brought a petition for hearing with
the California Supreme Court. Petitioner’s argument at
this stage of the proceedings was that there was a conflict
between California Appellate Court decisions regarding
the issue of immunity for public entities under California
Civil Code section 846. The apparent conflict existed be-
tween the decisions rendered in Moore v. City of Torrance,
101 Cal.App.3d 66, 166 Cal. Rptr. 192 (1979), which held
that the immunity provisions of California Civil Code sec-
tion 846 were applicable to public entities, and the decision
rendered in the case of Nelsen v. City of Gridley, supra,
cited by the California Third District Court of Appeal in
its earlier opinion denying Petitioner’s writ of mandate.
The California Supreme Court rejected Petitioner's
arguments and on April 4, 1983, entered its opinion deny-
ing Petitioner’s petition for writ of mandate. The Cali-
fornia Supreme Court’s ruling was based on the reasoning
that the legislative intent behind California Civil Code sec-
tion 846 did not make the Code section applicable to public
entities. On its face, California Civil Code section 846
does not violate the equal protection clause of the Four-
teenth Amendment to the United States Constitution. How-
ever, in ruling that the legislative intent behind California
Civil Code section 846 was to exclude public entities of a
similar nature as reclamation districts from the immuni-
ties provided by said statute, the California Supreme Court
7
has now denied Petitioner its right to equal protection
under the Fourteenth Amendment to the United States
Constitution.
Following the entry of the California Supreme Court
opinion on April 4, 1983, Petitioner sought a petition for
rehearing to the California Supreme Court, specifically
arguing that the court’s interpretation of California Civil
Code section 846 was a denial of equal protection and that
to deny Petitioner the same immunities of said section,
as were allowed to private persons, would discriminate
against state and federal public entities.
By its order of May 26, 1983, denying Petitioner’s peti-
tion for rehearing, the California Supreme Court obviously
rejected Petitioner’s equal protection argument. Petitioner
has now exhausted all state court remedies and having
timely raised the issue of whether the California Supreme
Court’s interpretation of California Civil Code section 846
is repi_mant to the equal protection clause of the Four-
teenth Amendment to the United States Constitution, this
matter is ripe for review by the United States Supreme
Court.
REASONS FOR GRANTING THE PETITION
1. California Civil Code Section 846 as Interpreted by
the California Supreme Court Denies Petitioner’s
Right to Equal Protection of the Laws, as Guaranteed
by the Fourteenth Amendment to the United States
Constitution
This case presents important questions concerning the
rights of “public entities”, who are also landowners, to
assert the same rights as private landowners to claim
8
immunity from tort liability under a state statute allowing
tort immunity for injuries to persons involved in recrea-
tional activities.
California Civil Code section 846 provides tort immunity
for landowners when the injured party was involved in
certain “recreational activities” at the time of the injury.
The purpose of such a statute is to encourage landowners
to allow members of the general public to use their land for
recreational purposes, by limiting liability for injuries
sustained in the course of such activities. Thompson v.
United States, 592 F.2d 1104, 1108 (9th Cir. 1979).
The California Supreme Court has ruled that Petitioner
is a “public entity” and as such should not be allowed to
assert the landowner’s immunity of California Civil Code
section 846. In so ruling, private landowners within the
reclamation district are denied the same protection from
tort liability that they would enjoy had their land not been
reclaimed under the authority of the California Water
Code.
2. Reclamation Districts Have Standing to Raise an
Equal Protection Argument
Petitioner asserts that reclamation districts in Cali-
fornia are not “political subdivisions” of the State such as
to preclude them from asserting their right to equal pro-
tection under the Fourteenth Amendment to the United
States Constitution. For purposes of raising an equal
protection argument, the term “persons” has not been
equated with “human beings”, as can be seen from the fact
that corporations have the right to assert equal protection
9
rights. El Paso County Water Improvement Dist. No. 1
v. City of El Paso, 133 F.Supp. 894, 906 (W.D. Tex. 1955).
Under California case authority, reclamation districts are
deemed public corporations. People v. S. Wiliams, 56 Cal.
647 (1880).
Reclamation districts are distinguishable from political
subdivisions of the state in that unlike the state, munici-
palities or agencies of either, any damages assessed
against reclamation districts will not be paid out of the
general coffers by the taxpayers as a whole, but will be
assessed against the individual landowners comprising the
district. Under California law, public entities may sue and
be sued. Cal. Government Code § 945 (West 1980). Once a
party obtains a judgment, the judgment is then paid out of
any funds to the credit of the local public entity that are
“(a) unappropriated for any other purpose unless the use
of such funds is restricted by law or contract to other
purposes. ...” Cal. Government Code § 970.4 (West 1980).
As previously noted, the individual landowners of recla-
mation districts are ultimately liable for damages assessed
against the reclamation district wherein their land is loca-
ted. Cal. Water Code § 51231 (West 1966). These individ-
uals are specifically known and the properties to which the
damage is assessed are delineated as to their proportionate
share of the assessed damages. Cal. Water Code § 51231
(West 1966). Further, if the landowners do not pay the
assessed amounts, their land can be sold and the proceeds
used to pay such assessments. Cal. Water Code $$ 51600,
et seq. (West 1966). This is quite different from the situa-
tion involving states, municipalities or other political sub-
10
divisions, wherein damages assessed against such entities
are paid out of the general coffers and are borne by the
taxpayers as a whole. Cal. Government Code § 970.4 (West
1980). Because the individual landowners in the reclama-
tion district are held ultimately liable for the damages
assessed, they should have the right to assert, as individual
landowners, the right to equal protection under the Four-
teenth Amendment to the United States Constitution.
The makeup of the reclamation districts involved in this
action is further support for Petitioner’s right to raise
an equal protection argument. Although the California
Supreme Court has deemed the districts to be “public
entities”, a closer examination reveals that they are, in
fact, and even defined by earlier California case authority,
public corporations. People v. Williams, supra, at 647
(1880).
Petitioner is well aware that “[pJolitical subdivisions
of a state may not challenge the validity of a state’s statute
under the Fourteenth Amendment.” Williams v. Mayor and
City Council of Baltimore, 289 U.S. 36, 40 (1933). How-
ever, Petitioner submits that reclamation districts, as
defined by California Water Code section 50,000, et seq.,
and interpreted by case law, are not “political subdivi-
sions” such as would preclude the districts from raising
an equal protection argument.
In deciding the importance of this issue, it would be of
great benefit to understand how the reclamation districts
are formed, operated, what powers they have, and who
must ultimately bear the brunt of any tort recovery
against the district. On closer examination it is evident
Bi
that reclamation districts are more akin to “private per-
sons” than they are to “political subdivisions” of the state.
California Water Code sections 50,000, et seg. (West
1966), sets forth the applicable laws governing the forma-
tion, operation, powers and duties of the reclamation dis-
tricts. Such districts are established to reclaim and im-
prove certain types of land through the joint efforts of the
individual landowners. To form a reclamation district, one-
half of the landowners in the prescribed area may petition
the Board of Supervisors of the county where the whole or
greater portion of the land of the district is situated to
have the area designated as a reclamation district. Cal.
Water Code § 50300 (West 1966). The types of land that
qualify for inclusion in reclamation districts are swamps
and overflowed lands, salt-marshes and tidelands, or other
lands subject to flood or overflow. Cal. Water Code
§ 50300(a) (West 1966).
By the very nature of the formation of these districts,
it is possible for one-half of the landowners in the district
to be involuntarily included in such districts. Once a peti-
tion has been approved by the Board of Supervisors, then
the owners of a majority of the acreage in the district may
adopt by-laws, similar to those that are required of any
corporation, which govern and control, to a certain extent,
the affairs of the district. Cal. Water Code § 50370 (West
1983). If the owners fail to adopt by-laws, then the Board
of Trustees created pursuant to California Water Code
sections 50600 and 50601 have the authority to adopt by-
laws to govern the district. Cal. Water Code § 50370.2
(West 1983).
12
The reclamation districts are operated very similarly to
a private corporation in that they can elect officers and
also can hold special elections to decide whether bonds or
refunding bonds shall be issued. Cal. Water Code § 50800
(West 1966). At such elections the individual landowners
have one vote for each dollar value of real estate owned
by said landowner in the district according to the last
equalized tax roll of each county in which the lands of the
district are situated. Cal. Water Code § 50704 (West 1983).
The general operation of the district involves the Board
of Trustees reporting to the Board of Supervisors on the
original plan of reclamation and any new, supplemental or
additional plans regarding the land in the district. Cal.
Water Code § 51003 (West 1966). When a reclamation plan
is adopted, the Board of Supervisors then appoints three
assessment commissioners to view and assess upon the
district land the sum estimated to be the cost of the
reclamation plan, and to apportion such costs according
to the benefit that will accrue to each parcel by reason of
expenditures of the sums of money to complete the plan.
Cal. Water Code 451231 (West 1966). Once the work is
finished under the proposed reclamation plan, the Assess-
ment Commissioner shall assess the valuation per acre for
each parcel in the district in proportion to the benefits to
be derived from the continuation and operation of the dis-
trict reclamation work. Cal. Water Code § 51323 (West
1966).
The assessed values are used as a basis for levying
assessments against the parcels described in the operation
and maintenance assessment rolls for the purposes of
raising funds for the maintenance, repair and operation of
13
the district work, the payment of incidental expenses
thereof, and for future supplementation to the district.
Cal. Water Code § 51326 (West 1966).
The California Code specifically grants the districts the
power to do all things necessary or convenient for accomp-
lishing the purposes for which the district was formed.
Cal. Water Code § 50900 (West 1966). Also, an action may
be brought by a Trustee, or a landowner if the Board of
Trustees has not been elected, against a person or entity
for damage done to the reclamation district. Cal. Water
Code §50141 (West 1966). Conversely, under California
Water Code section 50145 (West 1966), a provision is
made whereby all claims for money or damages against
the district are governed by Part III and Part IV of Divi-
sion 3.6 of Title I of the Governmental Code of the State
of California, dealing with presentation of claims against
a “public entity”. Under California Government Code sec-
tion 945 (West 1980), found in Part IV of Division 3.6 of
Title I, “[a] public entity may sue and be sued.” However,
when a claim or an amount of recovery is found due to a
party from the reclamation district, the amount due is
assessed pursuant to California Government Code section
970.8(a) (West 1980).2 The prior jaw relating to assess-
ment for damages against a reclamation district has been
repealed. Therefore, the assessment would assumably be
made according to the amount of benefit per acre each
parcel received as a result of the reclamation done in the
*Government Code section 970.8(a): “Each local public entity
shall in each fiscal year include in its budget a provision to pro-
vide funds in an amount sufficient to pay all judgments in accord-
ance with this article.”
14
district pursuant to California Water Code section 51231
(West 1966), dealing with the levying of assessments.
It can readily be seen by the structure of the reclama-
tion district that the individual landowners are ultimately
responsible for funding the reclamation district, as well as
being liable for any damages incurred against the district
as a result of tortious conduct.
3. The Decision of the California Supreme Court Regard-
ing the Lack of Immunity for Reclamation Districts
Has Far-Reaching Implications
At the present time at least forty-three states have
enacted “recreational statutes” which substantially limit
the duties of landowners toward persons who enter the
land for recreational purposes.’ The general purpose of
these statutes is the same as that of California Civil Code
section 846: “[T]o encourage owners of land to make land
and water areas available to the public for recreational
purposes by limiting their liability toward persons enter-
ing thereon for such purposes.” Del. Code Ann. tit. 7 § 5901
(1974); emphasis added. Other objectives behind recrea-
tional use statutes are based on the need to avoid the
imposition of burdensome and unfair duties upon owners
of large tracts of land to visitors who enter for recrea-
tional purposes where such owners do not receive any
substantial benefit from the visitors’ presence on their
land.‘ Finally, such statutes are enacted to encourage
*A4 complete list of the states which have enacted “recreational
statutes” is included in Appendix D attached hereto.
‘See Scheck ». Houdaille Constr. Materials, Inc., 121 N.J.Super.
335, 279 A.2d 17 (1972).
15
landowners to permit hunters to thin large herds of
animals who inhibit forest reproduction.°
There exists a distinct split among the states as to
whether or not property of the state, municipalities or
“governmental subdivisions” of the state should be in-
cluded in the protection from tort liability by such recrea-
tional use statutes. Some states specifically exclude such
“public entities” from the immunity coverage of such
statutes,’ while others have, by statute or judicial inter-
pretation, allowed landowning “public entities” to take
advantage of such tort immunities.’
There are a number of states with recreational use
statutes which have not decided the issue of whether
“public entities’ are included under the tort immunities of
such statutes. It should be noted that a number of those
states have also enacted statutes very similar to Cali-
fornia’s reclamation district statute. As an example, in
Massachusetts, reclamation districts are formed in a sim-
ilar fashion and for a similar purpose as are reclamation
districts in California. Mass. Gen. Laws Ann. ch. 252,
§$1, et seq. (West 1983). The Massachusetts statutes
specifically allow for tort liability against the districts,
and any damages so recovered are considered a part of
‘Note, Torts-Statutes-Liability of Landowner to Persons Entering
For Recreational Purposes, 1964, Wis. L. Rev. 705, 709.
*lowa Code Ann. §§111C.1-111C.7 (West 1983); and Metro.
Dade County v. Yelvington, 392 So.2d 911, 912 (Fla. Dist. Ct.
App. 1980).
"Wis. Stat. Ann. § 29.68(5)(b) (West 1982); McCord v. Ohio
Div. of Parks and Rec., 54 Ohio St. 2d 375 N.E.2d 50, 52 (1978);
Trimblett v. New Jersey, 383 A.2d 1146, 1148 (N.J. Super.Ct. App.
Div. 1977); Syrowik v. Detroit, 119 Mich. App. 343, 326 N.W.2d
507, 509 (1982); and Wight v. State, 403 N.Y.S.2d 450, 452 (1978).
16
the total expenses of the district and are assessed accord-
ingly. Mass. Gen. Laws Ann. ch. 252, § 12 (West 1959).
Other states have similar statutes to those of California
and Massachusetts regarding the formation of reclamation
districts.* In McGee v. International Life Ins. Co., 355 US.
220 (1957), this court granted certiorari to hear an issue
regarding the constitutionality of California service of
process statutes. The basis for the granting of certiorari
in that case was stated as follows: “Since the case raised
important questions, not only to California but to other
states which have similar laws, we granted certiorari.” Jd.,
at 221. The reasoning used in McGee is easily applicable
to this petition because of the number of other similar
statutes.
The recreational use statutes, similar to that of Cali-
fornia, are a fairly recent development in tort law, almost
all having been enacted by states within the past twenty
years. See Appendix D, attached hereto. Those having been
most recently enacted generally lack a judicial interpreta-
tion of whether or not such immunities apply to “public
entities”. Because of California’s history of being in the
forefront of creative judicial interpretation, the decisions
in this action will obviously be referred to and relied upon
for future authority. A decision in the subject matter case
that is repugnant to the Fourteenth Amendment of the
United States Constitution would not only have adverse
effects upon California’s quasi-public landowners, but
would also have severe precedential effect on other states
"See, N.C. Gen. Stat. §§ 156-56, 156-70 and 156-103 (1983);
Texas Const. art. 16, § 59; Tex. Rev. Civil Stat. Ann. art. 6259-19,
§ 3 (Vernon 1970); and Okla. Stat. Ann. tit. 82, § 503 (West 1970).
17
with similar statutes involving both recreational use tort
immunity and public entity reclamation districts.
By reaching its decision in this action, the California
Supreme Court has established a far-reaching precedent
involving public law. By this petition, Petitioner is not
only seeking a correction of its fundamental right to be
treated equally under the law as any other “person”, but
it is also seeking to correct a miscarriage of justice that
will affect others. Petitioner submits that if the California
Supreme Court ruling in this case is allowed to stand,
other private citizens who may be deemed to comprise a
“public entity” will face liability for torts which should
fall within the immunities of recreational use statutes.
4. Denial of “Recreational Use” Immunities to Reclama-
tion Districts Will Affect the General Public as a
Whole
The discussion above illustrates that a decision regard-
ing the issue involved here will affect not only the parties
involved in this action but will also affect other states with
similar statutes. It should also be noted that to deny
reclamation districts the immunities under such recrea-
tional use statutes will, in effect, substantially decrease
the amount of land that will be available to private citizens
for recreational purposes. If landowners who are involved
in such reclamation districts can be ultimately liable to
recreational users, they will seek to prohibit the use of land
for such purposes. Although no recent figures were dis-
covered showing the actual amount of land used for recla-
mation districts in California, due to the nature of the
types of land subject to reclamation, the amount is quite
18
substantial. As an example, the reclamation district in-
volved in this case, Reclamation District No. 2028, formed
in 1918, contained approximately 5,625 acres when the
last publication was made regarding such districts.’
Because there are numerous reclamation districts through-
out California and other states, the impact of the Cali-
fornia Supreme Court ruling is far-reaching. It should be
noted that in California alone a high percentage of the
total acreage of the state can be subject to reclamation
and a substantial amount of such land has already been
reclaimed. The effect of this denial of tort immunity would
be even greater in those states which are smaller in size
and thus have a greater need for more land to be open to
recreational users. To deny reclamation districts the same
tort immunities for recreational use as “private land-
owners will result in a severe decrease in the amount of
land available to the general public for outdoor activities.
CONCLUSION
Reclamation districts are made up of lands owned by
individual landowners. Although by its decision in this
ease, the California Supreme Court has deemed such dis-
tricts to be “public entities” for purposes of the tort immu-
nity provision of California Civil Code section 846, this
does not preclude such districts from asserting an equal
protection argument under the Fourteenth Amendment to
the United States Constitution.
Reclamation districts are comprised of individual land-
owners, are similar to private corporations in their oper-
*Bulletin No. 37, Financial and General Data Pertaining to
Irrigation, Reclamation and Other Public Districts in California,
Cal. State Printing Office (1930).
19
ations, have been deemed by California judicial interpre-
tation to be public corporations, and, most importantly, the
individual landowners will ultimately bear the cost of any
judgment rendered against the district. Weighing all of
these factors, such districts should be treated the same as
private landowners under the provisions of California
Civil Code section 846, and to do otherwise would violate
the district’s rights to equal protection under the law.
Wherefore, Petitioner respectfully requests this court to
grant its petition for writ of certiorari.
Respectfully submitted,
Betty WoLrFE
MeMERING, DeMers, Hone,
Varanini, Hurst & Crow.e
Counsel for Petitioner
August 1983
Appendix A
CERTIFIED FOR PUBLICATION
In the Court of Appeal of the State of California
in and for the Third Appellate District
(San Joaquin)
3 Civ. 20302
(Super. Ct. No. 148335)
Delta Farms Reclamation District No. 2028,
Petitioner,
v.
The Superior Court of the County of San Joaquin,
Respondent.
Mabel Fernandez et al.,
Real Parties in Interest.
[Filed Nov. 13, 1981]
ORIGINAL PROCEEDING; application for a writ of
mandate. Writ denied.
Memering & DeMers and Henry W. Crowle, for Peti-
tioner.
No appearance for Respondent.
Lewis, Lewis & Less, and Lawrence J. Less and Craig R.
Biackstone, for Real Parties in Interest.
Petitioner, Delta Farms Reclamation District No. 2028
(Delta Farms), seeks a writ of mandate directing respond-
ent superior court to sustain its general demurrer to real
parties’ complaint for damages for injuries, including emo-
tional distress, for the wrongful death of two teenage girls
who drowned in a canal owned by the district. We issued
A-2
an order to show cause. The district contends that the
complaint (1) fails to state a claim under Government
Code section 835, liability for dangerous conditions of pub-
lic property; (2) fails to state facts avoiding the public
entity immunity for reservoirs, drains, conduits and canals
provided by Government Code section 831.8; (3) fails to
state facts avoiding land-owner immunity against persons
on property used for recreational purposes provided by
Civil Code section 846; and (4) states claims for negligent
infliction of emotional distress, which are barred by Gov-
ernment Code section 815. We deny Delta Farms the relief
it seeks.
FACTS
“A demurrer admits all material and issuable facts
properly pleaded. [Citations.]” (Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713; California State Police Assn. v.
State of California (1981) 120 Cal.App.3d 674, 680.) We
set out the facts accordingly.
About June 23 or 24, 1979, Paquita Hill and Cheryl
Fernandez, both 15 years of age, drowned on district
property in a waterway known as Middle River. The
waterway is said to be in a dangerous condition, as a result
of dredging by Delta Farms and others, in that it is only
a foot deep five feet from the shore, at which point it
plunges to a depth of 60 feet. The children, while wading,
stepped off the hidden drop and drowned in view of real
parties. The district knew or should have known of the
dangerous condition. It also knew that visitors frequent
the area of the drownings, had posted a sign limiting the
hours of parking nearby and knew or should have known
A-3
that visitors are likely to wade or swim there. Neverthe-
less, it failed to warn real parties of the latent dangers of
the river. Real parties, Mary Alice Caston (Hill’s mother),
Mabel Fernandez (Fernandez’ mother) and Karen Denise
Edwards (Fernandez’ sister), witnessed the drownings
and suffered emotional distress and, in addition, Edwards,
who was pregnant at the time, suffered a miscarriage.’
I
Delta Farms asserts that real parties allege only common
law claims of negligence and that negligence plays no part
in the application of section 835° to this case. It implies
that section 835 employs negligence standards only for a
dangerous condition created by the negligence of a district
employee (4 835, subd. (a)) and that no liability attaches
*Government Code section 815 provides: “Except as otherwise
provided by statute: [{] (a) A public entity is not liable for an
injury, whether such injury arises out of an act or omission of the
public entity or a public employee or any other person. [{] (b)
The liability of a public entity established by this part (commenc-
ing with Section 814) is subject to any immunity of the public en-
tity provided by statute, including this part, and is subject to any
defenses that would be available to the public entity if it were a
private person.”
*Government Code section 835 provides: “Except as provided by
statute, a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the prop-
erty was in a dangerous condition at the time of the injury, that
the injury was proximately caused by the dangerous condition, that
the dangerous condition created a reasonably foreseeable risk of
the kind of injury which was incurred, and that either: [{] (a) A
negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous
condition; or [{] (b) The public entity had actual or constructive
notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against
the dangerous condition.”
A-4
for a negligent failure to warn of a dangerous condition
which was not so created. Delta Farms misreads the
statute.
Although the Tort Claims Act imposes liability only as
“provided by statute” (4815), the statute incorporates
common law concepts of liability. “The Tort Claims Act
must necessarily be read against the background of general
tort law. The conceptual theory of statutory liability under
the act is keyed to the common law of negligence and
damages ....” (Van Alstyne, Cal. Government Tort Lia-
bility Practice (Cont.Ed.Bar 1980) § 2.7, pp. 36-37.) Specif-
ically, negligence concepts inform the statutory basis of
liability for failure to warn of a dangerous condition of
property. ($4 835, subd. (a); 830.) Real parties predicate
their action on the second ground. (See Flournoy v. State
of California (1969) 275 Cal.App.2d 806, 814; and see
Cameron vy. State of California (1972) 7 Cal.3d 318, 327-
328; § 830.)
Section 835 establishes alternate grounds of liability,
put generally, where the entity either (a) wrongfully or
negligently created the dangerous condition, or (b) had
notice of a dangerous condition on its property and failed
to take measures to protect against it. “A public entity
may be held liable for a ‘dangerous condition’ of public
property only if it has acted reasonably in creating or
failing to remedy or warn against the condition... .”
(Emphasis added.) (Cal. Law Revision Com. com. to § 830,
32 West’s Ann. Gov. Code (1980 ed.) p. 264.) “Regardless
of the availability of [an] active negligence theory [cre-
ating a danger], plaintiffs [are] entitled to go before a
jury on {a} passive negligence theory, i.e., an accident
A-5
caused by the [entity’s] faiiure to warn the public against
[the] danger known to it but not apparent to a reasonably
careful... user.” (Cameron vy. State of California, supra,
7 Cal.3d at p. 328, quoting from Flournoy v. State of
California, supra, 275 Cal.App.2d at p. 811.)
Real parties claim that whether or not Delta Farms
wrongfully dredged out the trap into which the children
fell, it was nonetheless a dangerous condition to users of
the river and the district failed to warn them of the trap.
(See Van Alstyne, supra §§ 3.18-3.24, pp. 210-222.) Here,
the dredging of the waterway was apparently done for a
purpose unconnected with swimming or wading. But public
entitles are liable “for maintaining property in a condition
that creates a hazard to foreseeable useres even if those
persons use the property for a purpose for which it was
not designed to be used or for a purpose that is illegal.”
(Cal. Law Revision Com. com. to § 830, 32 West’s Ann.
Gov. Code, supra, at pp. 264-265.) “Publie property which
is not damaged or in a deteriorated condition, and which
is neither structurally unsound nor physically defective
may, nevertheless, be in a dangerous condition because
the design or location of the improvement, the interrela-
tionship of its structural or natural features, or latent
hazards associated with its normal use, create a substantial
risk of injury to foreseeable careful users.” (Van Alstyne,
supra, § 3.8, p. 188.)
Section 835, as applicable here, provides for entity
liability where (a) the property was in a dangerous condi-
tion at the time of injury; (b) the injury was proximately
A-6
caused by such condition; (c) such condition created a
reasonably foreseeable risk of injury of the kind of injury
which was incurred; and (d) the entity had notice as
provided in section 835.2 of such condition in time to take
remedial measures. (See Warden vy. City of Los Angeles
(1975) 13 Cal.3d 297.) The complaint will survive a
demurrer if it is factually detailed enough to support an
inference that each of these statutory requirements is
satisfied. It does.
The complaint sufficiently alleges the existence of a
dangerous condition and that the injuries were the proxi-
mate result of the condition. The allegations of the like-
lihood of wading and swimming by visitors and the
description of the sudden, latent, drop of the waterway’s
dredged bottom set forth a trap which poses a reasonably
foreseeable risk of drowning to waders. (See Davis v.
Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d
789 [“a sump hole built into the bottom of a ‘fish pond’
in a public park”); “a sump hole in a pond does not
endanger those who fish from the shore but might be
dangerous to waders.” (Van Alstyne, supra, § 3.8, p. 188.)
Section 835.2 requires that the entity must have “actual
notice of a... condition and knew or should have known
of its dangerous character.” ($835, subd. (a).) “Actual
notice must embrace both the fact that the condition exists
and that it is dangerous.” (Van Alstyne, supra, § 3.21,
p. 212.) “Imputed notice . . . satisfies the actual notice
requirement ....” ([bid.)
The complaint alleges that “Delta Farms knew or should
have known of the dangerous condition of the waterway
known as Middle River.” “In the pleading of notice, a
A-7
general allegation of actual notice is ordinarily sufficient.”
(Van Alstyne, supra, § 3.72, p. 294, and cases cited therein.)
Liberally read (Marin v. Jacuzzi (1964) 224 Cal.App.2d
549, 552), the complaint says that the district knew of the
condition and that it was dangerous, which can also be
inferred from the allegations that Delta Farms partici-
pated in the dredging which created the trap for waders
and that it knew that persons waded in the water near the
trap. Constructive notice, also provided for by section
835.2, is invoked by the allegation that the condition was
permanent, or at least semi-permanent which could not
possibly have escaped the district’s notice for long. (Gov.
Code, § 835.2.)°
°Government Code section 835.2 provides: “(a) A public entity
had actual notice of a dangerous condition within the meaning of
subdivision (b) of Section 835 if it had actual knowledge of the
existence of the condition and knew or should have known of its
dangerous character. [{] (b) A public entity had constructive
notice of a dangerous condition within the meaning of subdivision
(b) of Section 835 only if the plaintiff establishes that the condi-
tion had existed for such a period of time and was of such an ob-
vious nature that the public entity, in the exercise of due care,
should have discovered the condition and its dangerous character.
On the issue of due care, admissible evidence includes but is not
limited to evidence as to: [§] (1) Whether the existence of the
condition and its dangerous character would have been discovered
by an inspection system that was reasonably adequate (consider-
ing the practicability and cost of inspection weighed against the
likelihood and magnitude of the potential danger to which failure
to inspect would give rise) to inform the public entity whether the
property was safe for the use or uses for which the public entity
used or intended others to use the public property and for uses
that the public entity actually knew others were making of the
publie property or adjacent property [{] (2) Whether the public
entity maintained and operated such an inspection system with
due care and did not discover the condition.”
A-8
II
Delta Farms seeks refuge in Government Code section
831.8, subdivision (b), which confers immunity on “irriga-
tion district[s]” and the state and their employees for
injuries suffered by persons using canals, conduits and
drains in a manner not intended. It expressly applies only
to “irrigation district[s].” (See Water Code, § 20500 et seq.)
Delta Farms is a reclamation district which is separately
classified and governed. (Water Code, § 50000 et seq.) Delta
Farms seeks to bring reclamation districts within the im-
munity for irrigation districts on the ground that reclama-
tion districts, like irrigation districts, may acquire and
maintain irrigation systems in connection with their lands.
(Water Code, § 50910.) We disagree. “When the Legislature
intended to limit the liability of public entities for dan-
gerous property conditions, it did so by express language
applicable to narrowly defined situations.” (Van Alstyne
supra, § 3.19, p. 211; compare § 3.46, p. 263.) The immunity
in section 831, subdivision (b), unlike that in section 831,
subdivision (a) (for “public entities” generally), is made
expressly applicable only to the state and to irrigation dis-
tricts and their employees. Reclamation districts are not
included.
III
The district’s claim of landowner immunity under Civil
Code section 846 fails because that statute does not apply
to public entities. (Nelsen v. City of Gridley (1980) 113
Cal.App.3d 87.)
IV
Finally, the district contends that recovery for negligent
infliction of emotional distress upon the relatives of the
deceased who witnessed the drownings is not provided by
statute and is thereby barred. (§ 815.)
Section 835 imposes eutity liability for a “dangerous
condition [which] created a reasonably foreseeable risk of
the kind of injury which was incurred... ."° Negligence con-
cepts are imported by the standards of foreseeability and
due care contained in sections 835 and 830. “Injury” is de-
fined in section 810.8. (E. L. White, Ine. v. City of Hunting-
ton Beach (1978) 21 Cal.3d 497, 511.) It provides: “ ‘Injury’
means death, injury to a person, damage to or loss of prop-
erty, or any other injury that a person may suffer to his
person, reputation, character, feelings or estate, of such
nature that it would be actionable if inflicted by a private
person.” (Emphasis added.) The definition is applicable
both to section 835 and to the allied definition of dangerous
condition in section 830. “The definition of ‘dangerous con-
dition’ is quite broad because it incorporates the broad
definition of ‘injury’ contained in Section 810.8. Thus, the
danger involved need not be a danger of physical injury;
it may be a danger of injury to intangible interests so long
as [it] is of a kind that the law would redress if it were
inflicted by a private person.” (Cal. Law Revision Com.
com. to 4 830, 32 West’s Ann. Gov. Code, supra, at p. 265.)
Under these provisions, an injury to “feelings” is com-
pensible if it “is of a kind that the law would redress if it
were inflicted by a private person.” This imports a common
A-10
law meaning into the statute, a meaning which includes
the injury of emotional distress.
Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d
916 establishes the rule for private persons: emotional dis-
tress is a compensable “injury” if “the risk of [such] harm
to [plaintiff] was reasonably foreseeable” to defendants.
(Id., at p. 923.) This test of liability meshes with section
835’s requirement “that the dangerous condition [must
have] created a reasonably foreseeable risk of the kind of
injury which was incurred... .” “[T]he phrase ‘kind of
injury’... serves to define the public entity’s duty by
relating it to the manner in which injuries would foresee-
ably follow from its breach.” (Van Alstyne, supra, 4 3.26,
pp. 224-225.)
Real parties have alleged such a foreseeable risk. As in
Molien, the risk of emotional distress to real parties was
reasonably foreseeable to Delta Farms. It is predictable
that parents would accompany their children while wading
in the river and that they would suffer emotional distress
from witnessing their deaths by drowning. Section 835
encompasses the alleged injuries.
DISPOSITION
The petition for a writ of mandate is denied and the
order to show cause is discharged. (CERTIFIED FOR
PUBLICATION.)
BLEASE, J.
We concur:
PUGLIA, P. J.
REYNOSO, J.
A-11
Appendix B
S.F. 24385
In the Supreme Court
of the State of California
Delta Farms Reclamation District No. 2028,
Petitioner,
v.
The Superior Court of San Joaquin County,
Respondent ;
Mabel Fernandez, et al.,
Real Parties in Interest.
[Filed April 14, 1983]
Petitioner Delta Farms Reclamation District No. 2028
(Delta) seeks mandate directing respondent superior court
to sustain Delta's genera] demurrer to real parties’ second
amended complaint seeking damages for the wrongful
death of two 15-year-old girls who drowned in a canal
owned by the district and for personal injuries, including
emotional distress.’ Delta contends that (1) it is immune
from liability for injuries resulting from the use of its
canal under the provisions of Government Code section
831.8, (2) by virtue of Civil Code section 846, it was under
no duty to protect against injuries or death from the
recreational use of its property; (3) the cause of action for
negligent infliction of emotional distress is barred by
Government Code section 815, and (4) the complaint fails
to state a cause of action for liabilitv for the dangerous
*The inadequacy of the district’s remedy by appeal was neces-
sarily determined by the Court of Appeal when it issued an order
to show cause. (People v. Superior Court (Douglass) (1979) 24
Cal.3d 428, 431; Ingram v. Superior Court (1979) 98 Cal.App.3d
483, 489-490. )
(SEE DISSENTING OPINION)
A-12
condition of public property under Government Code
section 835,
“A demurrer admits all material and issuable facts
properly pleaded.” (Daar v. Yellow Cab Co. (1967) 67
Cal.2d 695, 713.) We seek out the facts accordingly.
On June 23 or 24, 1979, Paquita Hill and Cheryl Fer-
nandez, both 15 years of age, drowned on district property
in a waterway known as Middle River. The waterway was
in a dangerous condition in that it was only a foot deep
for five feet from the shore, at which point, however, it
plunged to a depth of 60 feet. The girls stepped off the
hidden drop while wading and drowned. The district knew
or should have known of the dangerous condition. It also
knew that visitors frequented the area of the drownings—
it had posted a sign limiting the hours of parking nearby
—and knew or should have known that visitors were likely
to wade or swim there. Nevertheless, it failed to warn
real parties of the latent dangers of the canal. Real parties,
Mary Alice Caston (Hill’s mother), Mabel Fernandez
(Fernandez’ mother) and Karen Denise Edwards (Fer-
nandez’ sister), witnessed the drownings and suffered
emotional distress, in addition. Edwards, who was preg-
nant at the time, suffered a miscarriage.
I
The district contends it is immune from liability under
the provisions of subdivision (b) of Government Code
section 831.8. Subdivision (a) of that section provides for
immunity under specified cirewnstances for any public
entity for injuries caused by the condition of a reservoir:
nothing is said about canals. Subdivision (bh). by contrast.
A-13
does confer immunity for injury suffered by persons using
canals, conduits, or drains; the beneficiaries of the immu-
nity are, however, only irrigation districts, the state and
their employees.’ It is not contended that Middle River is a
reservoir.
“Government Code section $31.8 provides: “(a) Subject to sub-
divisions (c) and (d), neither a public entity nor a public em-
ployee is liable under this chapter for an injury caused by the con-
dition of a reservoir if at the time of the injury the person injured
was using the property for any purpose other than that for which
the public entity intended or permitted the property to be used.
[€] (b) Subject to subdivisions (c) and (d), neither an irrigation
district nor an employee thereof nor the State nor a state employee
is liable under this chapter for an injury caused by the condition of
canals, conduits or drains used for the distribution of water if at
the time of the injury the person injured was using the property
for any purpose other than that for which the district or State in-
tended it to be used. [{] (c) Nothing in this section exonerates a
public entity or a public employee from liability for injury proxi-
mately caused by a dangerous condition of property if: [€] (1) The
injured person was not guilty of a criminal offense under Article 1
(commencing with Section 552) of Chapter 12 of Title 13 of
Part 1 of the Penal Code in entering on or using the property;
[€] (2) The condition created a substantial and unreasonable risk
of death or serious bodily harm when such property or adjacent
property was used with due care in a manner in which it was
reasonably foreseeable that it would be used; [€] (3) The dan-
gerous character of the condition was not reasonably apparent to,
and would not have been anticipated by, a mature, reasonable per-
son using the property with due care; and [{] (4) The public
entity or the public employee had actual knowledge of the condi-
tion and knew or should have known of its dangerous character
a sufficient time prior to the injury to have taken measures to pro-
tect against the condition. [{] (d) Nothing in this section exoner-
ates a public entity or a public employee from liability for injury
proximately caused by a dangerous condition of property if: [{]
(1) The person injured was less than 12 years of age; [{] (2) The
dangerous condition created a substantial and unreasonable risk
of death or serious bodily harm to ch'ldren under 12 years of age
using the property or adjacent propert’ with due care in a manner
A-l4
Petitioner is a reclamation district governed by the
provisions of Water Code sections 50000 et seq.
Irrigation districts are separately classified and are
governed by the provisions of Water Code section 20500 et
seq. Petitioner claims that since it is authorized to acquire
and maintain irrigation systems (Wat. Code, § 50910), it
may invoke the immunity provisions of Government Code
section 831.8, subdivision (b), regarding irrigation district
canals. We do not agree. Since irrigation districts and
reclamation districts have long been separately classified
and regulated, we believe that the Legislature would have
mentioned reclamation districts if it had intended the im-
munity provisions of subdivision (b) to apply to them.
If, as is contended, it had been the Legislature's intention
to provide what Professor Van Alstyne calls “canal im-
munity” (Van Alstyne, Cal. Goveriinent Tort Liability
Practice (Cont.Ed.Bar 1980) § 3.46, p. 263) to public entities
other than the state or irrigation districts, it could easily
have said so. One simple way of expressing such an intent
would have been to insert the words “or canals, conduits
and drains used for the distribution of water” after the
word “reservoir” in subdivision (a) of section 831.8. The
fact that the Legisiature devoted a special subdivision to
canal immunity and singled out the state and irrigation
districts as the protected entities, proves conclusively that
the words—‘“neither an irrigation district . .. nor the
in which it was reasonably foreseeable that it would be used; [{]
(3) The person injured, because of his immaturity, did not dis-
cover the condition or did not appreciate its dangerous character;
and [{] (4) The public entity or the public employee had actual
knowledge of the condition and knew or should have known of its
dangerous character a sufficient time prior to the injury to have
taken measures to protect against the condition.”
A-15
State .. .”—of subdivision (b) must not be interpreted
to mean “any public entity which owns or operates a canal.”
II
The district also claims the protection of Civil Code
section 846 (section 846) which limits the duty of care owed
by “an owner of any estate or any other interest in real
property” to persons using the property for designated
recreational purposes.°
*Section 846 now provides: “An owner of any estate or any other
interest in real property, whether possessory or nonpossessory, owes
no duty of care to keep the premises safe for entry or use by others
for any recreational purpose or to give any warning of hazardous
conditions, uses of, structures, or activities on such premises to per-
sons entering for such purpose, except as provided in this section.
[{] A ‘recreational purpose,’ as used in this section, includes such
activities as fishing, hunting, camping, water sports, hiking, spe-
lunking, sport parachuting, riding, including animal riding, snow-
mobiling, and all other types of vehicular riding, rock collecting,
sightseeing, picknicking, nature study, nature contacting, recrea-
tional gardening, gleaning, winter sports, and viewing or enjoying
historical, archaeological, scenic, natural, or scientific sites. [§] An
owner of any estate or any other interest in real property, whether
possessory or nonpossessory, who gives permission to another for
entry or use for the above purpose upon the premises does not
thereby (a) extend any assurance that the premises are safe for
such purpose, or (b) constitute the person to whom permission has
been granted the legal status of an invitee or licensee to whom a
duty of care is owed, or (c) assume responsibility for or incur lia-
bility for any injury to person or property caused by any act of
such person to whom permission has been granted except as pro-
vided in this section. [{] This section does not limit the liability
which otherwise exists (a) for willful or malicious failure to guard
or warn against a dangerous condition, use, structure or activity;
or (b) for injury suffered in any case where permission to enter
for the above purpose was granted for a consideration other than
the consideration, if any, paid to said landowner by the state, or
where consideration has been received from others for the same
A-16
Section 846 itself, which only speaks of “owners,” offers
little guidance on the question whether the Legislature
meant to include public entities in that term.* On the other
hand the legislative history of section 846, when considered
in conjunction with other matters then before the Legis-
lature, leaves no doubt that public entity liability was then
very much on the mind of the Legislature and that, had it
intended to bring such entities under the umbrella of sec-
tion 846, it would have said so.
purpose; or (c) to any persons who are expressly invited rather
than merely permitted to come upon the premises by the land-
owner. [{] Nothing in this section creates a duty of care or ground
of liability for injury to person or property.”
‘The dissent argues that the “owners” to whom section 846 ap-
plies include the state and other public entities such as the peti-
tioning district. It relies, inter alia, on section 669 of the Civil Code
which since 1872 has read in relevant part: “All property has an
owner, whether that owner is the State, and the property public,
or the owner an individual, and the property private.” The section
—which, incidentally, applies to personal as well as real property
—merely recognized that in law there is no such thing as unowned
property. As such it complements section 182 of the Government
Code: “All property within the limits of the State, which does not
belong to any person, belongs to the people. Whenever the title to
any property fails for want of heirs or next of kin, it reverts to the
people.”
It is, of course, impossible to quarrel with the proposition that
the state can be an owner of property, but that is only the begin-
ning of the problem in statutory interpretation which this case
poses. Obviously the power of the state to own property cannot
automatically lead to the conclusion that every statutory reference
to an “owner” encompasses not only the state itself, but also—as
relevant to this case—every public entity within the state. If that
were the law, there would be no need for the rule that “[w]here a
statute is not expressly made applicable to government, it is for
the courts to determine whether the Legislature intended it to
apply to government.” (People v. Centr-O-Mart (1950) 34 Cal.2d
702, 704.)
A-17
The legislative history of section 846 (Stats. 1963, ch.
1759, § 1) shows that it was considered by the same com-
mittees of the Assembly and the Senate which, concur-
rently, readied the California Tort Claims Act (the Act)
(Stats. 1963, ch. 1681) for consideration by the full Legis-
lature.” Although section 846 became law two days after
"( Stats. 1963, ch. 1681, § 1, p. 3267 (the Act).)
“Jan. 10—Read first time. To printer. From printer. To com-
mittee. [Judiciary.]
Feb. 26—From committee with author’s amendments. Read sec-
ond time. Amended. Re-referred to committee.
Mar. 12—From committee with author’s amendments. Read sec-
ond time, Amended. Re-referred to committee.
Mar. 18—From committee: Amend and re-refer to committee.
Mar. 19—Read second time. Amended. To print, and re-referred
to committee.
April 2—From committee: Do pass as amended, but first amend,
and re-refer to Com. on Fin.
April 3—Read second time. Amended. To print, and re-referred
to Com. on Fin.
April 18—From committee: Do pass as amended.
April 22—Read second time. Amended. To print, engrossment,
and third reading.
April 23—Reported correctly engrossed. Passed on file.
April 24—Passed on file.
April 25—Read third time, passed, title approved. To Assembly.
April 26—In Assembly. Read first time. Held at desk.
April 30—Referred to Com. on Jud.
May 16—From committee: Do pass as amended.
May 17—Read second time. Amended. To printer. From printer.
Ordered returned to second reading file.
May 20—Read second time. Re-referred to Com. on W. & M.
June 14—From committee: Do pass as amended.
June 15—Read second time. Amended. To printer. From printer.
Ordered returned to second reading file.
A-18
the Act, on occasion it led the latter on their joint journey
through the two houses—for example, the Senate finished
its work on section 846 on June 14, while it did not concur
in Assembly amendments to the Act until five days later.
We mention these legislative minutiae for a reason: the
June 17—Read second time. To third reading.
June 18—Read third time, passed, title approved. To Senate.
June 18—In Senate. To unfinished business.
June 19—Senate concurs in Assembly amendment. To enroll-
ment.
July 1—Reported correctly enrolled. To Governor at 4:30 p.m.
July 15—Approved by Governor. Chapter 1681.”
(Stats. 1963, ch. 1759, § 1, p. 3511 (section 846).)
“Feb. 7—Read first time. To printer. From printer. To commit-
tee. [Judiciary.]
May 6—From committee. Do pass.
May 7—Read second time, to engrossment and third reading.
May 8—Reported correctly engrossed. Read third time, passed,
title approved. To Assembly.
May 9—In Assembly. Read first time. Held at desk.
May 10—Referred to Com. on Jud.
May 23—From committee. Do pass as amended. To Consent
Calendar.
May 24—Read second time. Amended. To printer. From printer.
Ordered returned to second reading file.
May 27—Read second time. To Consent Calendar.
May 29—Read third time, passed, title approved. To Senate.
May 29—lIn Senate. To unfinished business.
June 3—Senate refuses to concur in Assembly amendments. In
conference.
June 14—Senate adopts conference report.
June 21—Assembly adopts conference report. To enrollment.
July 3—Reported correctly enrolled. To Governor at 11 a.m.
July 17—Approved by Governor. Chapter 1759.”
(Data taken from Cal. Leg., Final Calendar of Legislative Busi-
ness (1963 Reg. Sess.), emphasis added. )
A-19
simultaneous passage of the two pieces of legislation
through the same two committees and, later, both houses
of the Legislature, makes it particularly appropriate that
the two statutes—which, to some extent, deal with the same
problem—be construed in such a way that they produce
harmony rather than dissonance. (Isobe v. Unemployment
Ins. Appeals Bd. (1974) 12 Cal.8d 584, 590-591.) To be
specific: both statutes deal with liability to recreational
users of property—section 846 does so exclusively, the Act
in part. The rule of construction just adverted to com-
mands us to avoid any interpretation of section 846 which
is at odds with the provisions of the Act as far as injuries
to recreational users of public property are concerned.
Actually an unbiased reading of section 846 and the
relevant sections of the Act—principally sections 831.2,
831.4, 831.8 and 835 of the Government Code*’—gives little
reason to suppose that section 846 was ever intended to
upset the carefully structured, comprehensive, statutory
framework of the Act by including public entities among
the landowners whom it protects: First, section 846 pre-
serves the then prevailing distinction between trespassers,
licensees and invitees—concepts which are foreign to the
Act (Gibson v. County of Mendocino (1940) 16 Cal.2d 80,
84-85; see also O’Keefe v. South End Rowing Club (1966)
64 Cal.2d 729, 749, fn. 12; Acosta v. County of Los Angeles
(1961) 56 Cal.2d 208, 212-213; Gallipo v. City of Long
Beach (1958) 164 Cal.App.2d 70, 76; Van Alstyne, Cal.
Government Tort Liability (Cont.Ed.Bar 1964) § 6.22,
°Except for section 846, which is in the Civil Code, all statutory
references are, unless otherwise noted, to the Government Code.
A-20
p. 205). Second, as we shall presently show, application of
section 846 to public entities would eviscerate large por-
tions of the Act. Third, application of section 846 to public
entities would lead to some patently absurd results. One
example will suffice at this point: since section 846 is by no
means limited to land in its natural condition—it specifi-
cally mentions “structures’—it obviously encompasses
improved streets. So, of course, does the Act. (§ 830 et
seq.) Therefore, an improved but dangerously rutted street
would expose a city to liability to a bicyclist who commutes
to work, even though it was under “no duty” to keep the
same street safe for the recreational rider right behind
him.” We doubt that there is a single city attorney in this
state who would submit such an absurdity to a court of
law.
Thus, although it should have been clear from the outset
that the Act and section 846 dealt with different sets of
potential defendants—the former with public entities and
officers, the latter with private landowners—the Courts of
Appeal temporarily backed themselves into a holding that
section 846 did benefit public as well as private land-
owners. The error is easily traceable to English v. Martin
Mun. Water Dist. (1977) 66 Cal.App.3d 725 where the
court—without stopping to consider that one of the two
defendants was a public entity—applied section 846 against
a plaintiff who, during a recreational ride, drove his motor-
cycle over a hidden precipice. The only legal issue dis-
cussed was the impact of Rowland vy. Christian (1968) 69
Cal.2d 108 on section 846, Next, Gerkin v. Santa Clara
"In what category would one put the commuter who, solely for
exercise, pedals home by a circuitous route?
A-21
Valley Water Dist. (1979) 95 Cal. App.3d 1022 assumed by
dictum that section 846 applied to the defendant public
entity, but nevertheless reversed a summary judgment
against the plaintiff, holding that she may not have used
the particular property for recreational purposes—“walk-
ing” is not necessarily “hiking.” Then came Moore v. City
of Torrance (1979) 101 Cal.App.3d 66 which said that
English “clearly refuted” the argument that section 846 did
not apply publicly owned property—overlooking that the
English court never adverted to the possibility of a distine-
tion between private and public property.*
In sum, the precedential authority for applying section
846 to public entities rests solidly on a case which never
considered the point—English. Actually, the first case
which thoroughly canvassed the issue—Nelsen v. City of
Gridley (1980) 113 Cal.App.3d 87—came to precisely the
opposite conclusion: section 846 did not apply to public
entities because it was irreconcilable with the provisions
of the California Tort Claims Act. A brief analysis of sec-
tion 846 and the relevant Government Code provisions
proves that Nelsen is irrefutably correct and that the
English-Gerkin-Moore line of cases must be disapproved.
The purpose of section 846 is to encourage property
owners “to allow the general public to recreate free of
charge on privately owned property.” (Parish v. Lloyd
(1978) 82 Cal.App.3d 785, 787; emphasis added; see also
Lostritto v. Southern Pac. Transportation Co. (1977) 73
*There is also a dictum in Blakley v. State of California (1980)
108 Cal.App.3d 971 to the effect that even if the defendant state
had owned the top of a cliff—which it did not—it would not be
liable to a plaintiff who had engaged in the recreational activity
of fighting before he was pushed over the edge.
A-22
Cal.App.3d 737, 747.) This purpose is achieved by a basic
declaration that owners owe “no duty of care to keep the
premises safe” for certain specific recreational purposes.
Broadly speaking the only exceptions relate to (a) victims
of wilful or malicious conduct by the owner, (b) persons
who have paid consideration for permission to enter, and
(c) express invitees. We note again that the statute makes
no distinction between natural and artificial conditions.
The Act evinces a similar purpose to encourage public
entities to open their properties for recreational use by
providing for certain immunities. It goes about it, however,
in radically different fashion.
The basic rule of liability for dangerous and defective
public property, stated in section 835, is preceded by several
immunities, some of which relate exclusively—or nearly so—
to recreational activities. Thus section 831.2 declares that
a public entity is not liable “for an injury caused by a
natural condition of any unimproved public property, in-
cluding but not limited to any natural condition of any lake,
stream, bay, river or beach.” The Legislative Committee
Comment states 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 .... 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.” (Emphasis
added.) Obviously this comment would make little sense if
the public entity were already protected from claims by
hikers, riders and campers by virtue of section 846,
A-23
That the Legislature did not believe that public entities
were under no duty to recreational users is even more
obvious if we examine section 831.4 which provides an im-
munity for injuries caused by unpaved roads and trails
which furnish access to “fishing, hunting, camping, hiking,
19
.
riding ... water sports, recreational or scenic areas...
The comment indicates that the purpose of the immunity is
the same as that provided by section 831.2—opening up
public property for recreational use by making it financially
safe to do so.
The important aspect of section 831.4 is, however, that it
provides a very limited immunity against the claims of the
fishermen, hunters, campers, hikers and riders: if the road
which leads to the recreational area is paved or happens
to be a city street—though unpaved—the immunity does not
*Section 831.4 reads as follows: “A public entity, public employee,
or a grantor of a public easement to a public entity for any of the
following purposes, is not liable for an injury caused by a condi-
tion of: [©] (a) Any unpaved road which provides access to fish-
ing, hunting, camping, hiking, riding, including animal and all
types of vehicular riding, water sports, recreational or scenic areas
and which is not a (1) city street or highway or (2) county, state-
or federal highway or (3) public street or highway of a joint high-
way district, boulevard district, bridge and highway district or sim-
ilar district formed for the improvement or building of public
streets or highways. [{] (b) Any trail used for the above purposes.
[] (c) Any paved trail, walkway, path, or sidewalk on an ease-
ment of way which has been granted to a public entity, which ease-
ment provides access to any unimproved property, so long as such
public entity shall reasonably attempt to provide adequate warn-
ings of the existence of any condition of the paved trail, walkway,
path, or sidewalk which constitutes a hazard to health or safety.
Warnings required by this subdivision shall only be required
where pathways are paved, and such requirement shall not be con-
strued to be a standard of care for any unpaved pathways or roads.”
A-24
apply and liability to hunters, campers, et al. is clearly
recognized. This result simply cannot be reconciled with
section 846,
Even more compelling is an analysis of section 831.8
(see fn. 2, ante). Subdivision (a) of that section immunizes
entities from liability for the dangerous condition of reser-
voirs which are not used for the purpose which the agency
intended or permitted. Clearly this immunity applies prin-
cipally to water sports. (E.g., Cardenas v. Turlock Irriga-
tion Dist. (1968) 267 Cal.App.2d 352; Hibbs v. Los Angeles
County Flood Control Dist. (1967) 252 Cal.App.2d 166.)
It is, however, subject to several exceptions stated in sub-
divisions (c) and (d). Subdivision (c), in essence, negates
the immunity if the injured person is not guilty of criminal
trespass and is victimized by a “trap” known to the entity.
Subdivision (d) creates an exception in the nature of the
attractive nuisance doctrine, provided the victim is less
than 12 years old.
Subdivisions (c) and (d) thus amount to an express
imposition of public entity liability for activities which,
in their nature, are almost exclusively recreational. It is
simply inconceivable that the Legislature could intend such
liability to coexist with a statute, such as section 846, which
negates it.
Petitioner also relies on section 815 which provides in
relevant part that “except as otherwise provided by stat-
ute” liabilities of entities established by the Act are “subject
to any immunity ... provided by statute... and... subject
to any defense that would be available to the public entity
if it were a private person.” Petitioner claims, of course,
that section 846 is such an immunity or defense,
A-25
We disagree with petitioner’s conclusion, for the Act
does “otherwise provide.” Sections 831.2, 831.4 and 831.8
are clear and express recognition that the fact that the
injured party is using public property for a recreational
purpose is immaterial and that where liability attaches in
favor of a nonrecreational user, it will also attach in favor
of the hunter, hiker, swimmer, camper and so on. These
three sections, therefore, negative the applicability of sec-
tion 846 to public entities.
In view of the conclusion we have just reached, we need
not consider real parties’ further argument that section
846 does not provide for an immunity or defense as de-
manded by section 815, but—more directly—negatives any
duty.
Finally, we are urged to construe section 846 in accord
with Moore v. City of Torrance, supra, because, after that
decision, section 846 was amended in 1980 and the Legisla-
ture failed to avail itself of the opportunity to disavow
Moore. (Alter v. Michael (1966) 64 Cal.2d 480, 482-483.)
Whatever force the rule relied on by petitioner may have
generally as an aid to statutory construction was neutral-
ized in this instance by the wealth of cases which had, as a
matter of course, dealt with recreational injuries and
deaths in the context of the Act.’® While most of these
All of the following decisions were decided before the last
amendment to section 846 in 1980; Cardenas v. Turlock Irrigation
Dist. (1968) 267 Cal.App.2d 352 (swimming); Rendak vy. State of
California (1971) 18 Cal.App.3d 286 (hiking); Buchanan y, City
of Newport Beach (1975) 50 Cal.App.3d 221 (surfing); Osgood
v. County of Shasta (1975) 50 Cal.App.3d 586 (water skiing);
Fuller v. State of California (1975) 51 Cal.App.3d 926 (diving);
County of Sacramento v. Superior Court (Kuhn) (1979) 89 Cal.
App.3d 215 (floating).
A-26
eases ended unfavorably to the respective plaintiffs, at
least one—Buchanan v. City of Newport Beach, supra—
held that the defendant city could be held liable for injuries
to a surfer. If legislative reaction to appellate decisions is
really as sensitive as petitioner suggests, at least one of the
four amendments to section 846 which followed Buchanan
(Stats. 1976, ch. 1803, §1; Stats. 1978, ch. 86, $1; Stats.
1979, ch. 150, $1; Stats. 1980, ch. 408, $1) should have
made explicit what is contended to be implicit: that public
entities are protected by section 846. We hold that they
are not.
III
The district further contends that recovery for negligent
infliction of emotional distress suffered by relatives who
witnessed the drownings is not provided by statute and is
therefore barred by section 815.‘ We disagree.
Section 835 imposes liability for a “dangerous condition
[which] created a reasonably foreseeable risk of the kind
of injury which was incurred... .” The term “injury” is
defined in section 810.8 as meaning “death, injury to a per-
son, damage to or loss of property, or any other injury
that a person may suffer to his person, reputation, char-
acter, feelings or estate, of such nature that it would be
actionable if inflicted by a private person.” A “dangerous
condition” is defined in section 830 as meaning a “condi-
tion of property that creates a substantial ... risk of in-
jury when such property ... is used with due care in a
"Section 815 provides in pertinent part: “Except as otherwise
provided by statute: (a) A public entity is not liable for an in-
jury, whether such injury arises out of an act or omission of the
public entity or a public employee or any other person.”
manner in which it is reasonably foreseeable that it will be
used.” The Law Revision Comment to section 830 makes
it clear that the injury resulting from a dangerous condi-
tion may be an emotional one: “The definition of ‘danger-
ous condition’ is quite broad because it incorporates the
broad definition of ‘injury’ contained in Section 810.5, Thus
the danger involved need not be a danger of physical
injury; it may be a danger of injury to intangible interests
so long as the injury is of a kind that the law would redress
if it were inflicted by a private person,” (32 West's Ann.
Gov. Code (1980 ed.) p, 265.)
is com-
pensable if it “is of the kind that the law would redress
Under these provisions, an injury to ‘feelings’
if it were inflicted by a private person.” This imports a
common law meaning into the statute which would include
emotional distress.
Emotional distress is a compensable injury when in-
flicted by a private person if the risk of such harm to
plaintiff was reasonably foreseeable to defendant. (Molien
v. Kaiser Foundation Hospitals (1980) 27 Cal.8d 916, 923;
Dillon v. Legg (1968) 68 Cal.2d 728, 739.) This test of
liability dovetails with the requirement of section 835 that
the “dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred.”
Real parties have alleged such a foreseeable risk. It is
predictable that adult relatives would accompany children
who are wading in the canal and that they would suffer
emutional distress from watching them drown. Section 835
encompasses that type of injury.
A-28
lV
The district’s final contention is that the complaint fails
to state a cause of action for liability under section 835
for the dangerous condition of public property. That
section establishes alternate grounds of liability for in-
juries caused by a dangerous condition where the public
entity either (a) wrongfully or negligently created the
dangerous condition, or (2) had actual or constructive
notice of a dangerous condition on its property and failed
to take measures to protect against it. (See fn. 5, ante.)
Real parties rely on the second ground of liability.
The district claims the complaint does not state a cause
of action on this ground because the allegations of notice
are inadequate. Section 835.2 sets forth what must be estab-
lished for a public entity to be charged with notice of
a dangerous condition: (a) actual notice is established if
the public entity “had actual knowledge of the existence
of the condition and knew or should have known of its
dangerous character,” (b) constructive notice is shown
“if the plaintiff establishes that the condition had existed
for such a period of time and was of such an obvious
nature that the public entity, in the exercise of due care,
should have discovered the condition and its dangerous
character.”
The complaint alleges that the district “knew or should
have known of the dangerous condition of the waterway
known as Middle River.” The district argues the allegation
is inadequate because it does not set forth any underlying
facts regarding knowledge. The point is well taken as to
constructive notice, which clearly requires a more detailed
statement of facts than that alleged here. As to actual
A-29
knowledge, however, a general allegation is sufficient. (See
Matthews v. State (1978) 82 Cal.App.38d 116; Osborne v.
City of Whittier (1951) 103 Cal.App.2d 609; Allen v.
City of Los Angeles (1941) 43 Cal.App.2d 65; Van Alstyne,
Cal. Government Tort Liability Practice (Cont.£d.Bar
1980) § 38.72, p. 294.) The pleading of actual notice is
sufficient to withstand the district’s general demurrer. (See
Hitson v. Dwyer (1948) 62 Cal.App.2d 803.)
The petition for writ of mandate is denied and the order
to show cause is discharged.
KAUS, J.
WE CONCUR:
BIRD, C.J.
MOSK, J.
BROUSSARD, J.
LALLY, J.*
* Assigned by the Chairperson of the Judicial Council.
A-30
Appendix ©
§ 846. Permission to enter for recreational purposes
An owner of any estate or any other interest in real
property, whether possessory or nonpossessory, owes no
duty of care to keep the premises safe for entry or use by
others for any recreational purpose or to give any warning
of hazardous conditions, uses of, structures, or activities
on such premises to persons entering for such purposes,
except as provided in this section.
A “recreational purpose,” as used in this section, includes
such activities as fishing, hunting, camping, water sports,
hiking, spelunking, sport parachuting, riding, including
animal riding, snowmobiling, and all other types of vehie-
war riding, rock collecting, sightseeing, picknicking, nature
study, nature contacting, recreational gardening, gleaning,
winter sports, and viewing or enjoying historical archaeo-
logical, scenic, natural, or scientific sites.
An owner of any estate or any other interest in real
property, whether possessory or nonpossessory, who gives
permission to another for entry or use for the above pur-
pose upon the premises does not thereby (a) extend any
assurance that the premises are safe for such purpose, or
(b) constitute the person to whom permission has been
granted the legal status of an invitee or licensee to whom
a duty of care is owed, or (c) assume responsibility for or
incur liability for any injury to person or property caused
by any act of such person to whom permission has been
granted except as provided in this section,
This section does not limit the liability which otherwise
exists (a) for willful or malicious failure to guard or warn
against a dangerous condition, use, structure or activity;
A-31
or (b) for injury suffered in any case where permission to
enter for the above purpose was granted for a considera-
tion other than the consideration, if any, paid to said land-
owner by the state, or where consideration has been
received from others for the same purpose; or (c) to any
persons who are expressly invited rather than merely
permitted to come upon the premises by the landowner.
Nothing in this section creates a duty of care or ground
of liability for injury to person or property.
A-32
Appendix D
Ala. Code, tit. 47, §4 281-285 (Supp. 1969)
Ark. Stat. Ann. §§ 50-1101 to 50-1107 (Repl. Vol. 1971)
Cal. Civ Code § 846 (West Supp. 1971)
Colo. Rev. Stat. tit. 33, $4 41-101 to 41-105 (Supp. 1976)
Conn. Gen. Stat.. Ann. $4 52-557f to 52-557} (Cum. Pamphl.
1973)
Del. Code Ann. tit. 7, § 5901-07 (Cum. Pamphl. 1970)
Fla. Stat. Ann. § 375.251 (Cum. Pamphl. 1973)
Ga. Code Ann. $4 105-403 to 105-409 (1965) (Cum. Supp.
1973)
Hawaii Rev. Stat. $4 520-1 to 520-8 (Supp. 1971)
Idaho Code § 36-1604 (Supp. 1978)
Ill. Stat. Ann., ch. 70, §§ 31-37 (Smith-Hurd Supp. 1971)
Ind. Ann. Stat. § 14-2-6-3 (Burns 1973)
Iowa Code Ann. §§ 111C.1 to 111C.7 (Cum. Pamphl. 1973)
Kan. Stat. Ann. §§ 58-3201 to 58-3207 (Cum. Pamphl. 1973)
Ky. Rev. Stat. Ann. § 150.645 (1971)
La. Rev. Stat. Ann. $4 9-2791, 9-2795 (West) (Supp. 1978)
Me. Rev. Stat. Ann. §§ 12-3001 to 12-3005 (1974)
Md. Natural Resources Code Ann. §§5-1101 to 5-1108
(Supp. 1977)
Mass. Ann. Laws ch. 21, § 17C (1973)
Mich. Comp. Laws Ann. § 300.201 (Supp. 1961)
Minn. Stat. Ann. §§ 87.021 to 87.026 (Cum. Pamphl. 1974)
Mont. Rev. Code Ann. §§ 67-808 to 67-809 (2d Repl. Vol.
1967 }
Neb. Rev. Stat. §§ 37-1001 to 37-1008 (1968)
Nev. Rev. Stat. § 41,510 (1971)
A-33
N.H. Rev. Stat. Ann. § 212.34 (Repl. Vol. 1964)
N.J. Stat. Ann. §§ 24:42A-2 to 2A:42A-5 (Cum. Pamphl.
1973)
N.M. Stat. Ann. § 53-4-5.1 (Repl. Vol. 8, Cum. Pamphl.
1973)
N.Y. Gen. Oblig. Law 9-103 (McKinney Cum. Pamphl.
1972)
N.C. Gen. Stat. §§ 1138-120.5 to 113-120.7 (Supp. 1978)
N.D. Cent. Code §§ 53-08-01 to 53-08-06 (Cum. Pamphl.
1973)
Ohio Rev. Code Ann. §§ 1533.18 to 1533.181 (Page 1964)
Okla. Stat. Ann. tit. 76, § 10-15 (Cum. Pamphl. 1973)
Ore. Rev. Stat. §§ 105.655, 105.660, 105.670, 105.680 (1971)
Pa. Stat. Ann. tit. 68, §§ 477-1 to 477-8 (Cum. Pampbhl.
1973)
S.D. Comp. Laws Ann. § 20-9-5 (Cum. Supp. 1973)
Tenn. Code Ann. §§ 51-801 to 51-805 (1966)
Tex. Rev. Civ. Stat. Ann. art. 1b (1969)
Vt. Stat. Ann. tit. 10, § 5212 (Supp. 1975)
Va. Code Ann. § 8-654.2 (Cum. Pamphl. 1973)
Wash. Rev. Code §§ 4.24.200-4.24.210 (Supp. 1973)
W.Va. Code Ann. §§ 19-25-1 to 19-25-6 (1971)
Wis. Stat. § 29.68 (1973)
Wyo. Stat. Ann. §§ 34-389.1 to 34-389.6 (Supp. 1973)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.