Petition — Delta Farms Reclamation District No. 2028 v. Superior Court of the County of San Joaquin

Supreme Court brief1983

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g3-195 |= “Tres

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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.

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