Opinion
H044351
10-15-2018
LISA WHEELER, Plaintiff and Appellant, v. SANTA CRUZ COUNTY REGIONAL TRANSPORTATION COMMISSION, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. CV178849)
I. INTRODUCTION
Plaintiff Lisa Wheeler was walking through a wet tunnel located by Davenport Beach when she slipped and fell, allegedly sustaining injuries. The tunnel, which had existed for decades, was made of natural rock that had been cut out by human activity. The ground in the tunnel contained rocks, along with water from a diverted creek that ran through the tunnel to the ocean. Plaintiff filed a civil action against defendant Santa Cruz County Regional Transportation Commission for premises liability. The trial court granted defendant's motion for summary judgment on the grounds that defendant was entitled to public entity tort immunity under Government Code section 831.2, which provides immunity against claims for injuries caused by a natural condition, and section 831.7, which generally provides immunity for injuries arising out of a hazardous recreational activity.
All further statutory references are to the Government Code unless otherwise indicated.
For reasons that we will explain, we determine that plaintiff's action is barred under the natural condition immunity provided by section 831.2. We will therefore affirm the judgment.
II. FACTUAL BACKGROUND
Our factual summary is drawn from the parties' separate statements of fact and the evidence they submitted in connection with the motion for summary judgment, to the extent evidentiary objections were not sustained to the evidence.
In this court, neither party challenges the trial court's evidentiary rulings.
The entrance to the tunnel where plaintiff was allegedly injured was accessible from Davenport Beach. There were no signs posted at the beach regarding the tunnel. The tunnel entrance and Davenport Beach are near a railroad line owned by defendant. The railroad line runs parallel to Highway 1. The tunnel diverts creek water to the ocean by passing under Highway 1 and the railroad line. Defendant did not build the tunnel. The tunnel entrance on Davenport Beach existed for decades prior to defendant acquiring the railroad line.
For purposes of this appeal, defendant does not dispute that it owned or controlled the tunnel at the time of the incident.
On August 31, 2013, plaintiff and her boyfriend visited Davenport Beach for recreational purposes. After spending time at the beach, they decided to go to the tunnel. Plaintiff's boyfriend had been in the tunnel on three or four prior occasions. He believed the tunnel was originally used for narrow-gauge trains, and that a creek was diverted through the tunnel by the town or county after the tunnel was no longer used for trains.
The pair walked across the beach to enter the tunnel. Plaintiff "wanted to go all the way through the tunnel" and "check it out." She told her boyfriend, "[I]t's fun, let's go in there," because she "wanted to get to the other side." Plaintiff went inside first with her boyfriend following with a dog on a leash. There were children playing in the tunnel at the time.
The tunnel was made of natural rock that had been "cut out by man," as reflected in the uniform arch and width of the tunnel The tunnel was approximately 200 feet long.
The parties did not indicate the height of the tunnel in their separate statements of fact submitted in connection with the motion for summary judgment. --------
There were no lights in the tunnel. However, there was natural light from both ends of the tunnel, and it was not too dark to see.
Water flowed through the tunnel, and it was wet throughout. Plaintiff's boyfriend testified that, depending on the rain, there are times during the year "when you can't go in [the tunnel]" because there is too much water. At the time of the incident, the rocks on either side of the tunnel were moist, and the water in the middle of the tunnel was ankle deep.
Plaintiff's boyfriend told her to be careful, that it was wet in the tunnel, and that it could be slippery. It was obvious to anyone in the tunnel that day that it was wet and slippery and that a person had "to be really careful."
Plaintiff was barefoot, and she knew that rocks could be slippery when wet. She alternated between walking in the middle of the tunnel, where the water flowed, and walking on the left side of the tunnel.
At some point, plaintiff slipped and fell while walking on the left side of the tunnel. She was looking at the ground when she fell. Plaintiff testified that the surface of the object that she slipped on was black and probably wet. Her boyfriend, who was 5 to 20 feet behind her, heard a thump and saw her lying on top of a big flat black rock. Plaintiff did not know how far she had walked in the tunnel before she fell.
III. PROCEDURAL BACKGROUND
A. The Pleading
In the operative complaint, plaintiff alleged a single cause of action for premises liability against defendant. She alleged that she was walking in a tunnel, that she "slipped on what appeared to be solid rock, but which was not," and that she suffered injuries. She further alleged that defendant "negligently owned, maintained, managed and operated" the premises; that defendant "willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity"; and that employees of defendant created a dangerous condition on the property and/or defendant had constructive notice of the condition and had sufficient time prior to the injury to have corrected it.
B. The Motion for Summary Judgment
Defendant moved for summary judgment on various grounds, including that it was immune from liability under sections 831.2 and 831.7, and that plaintiff's action was barred by the primary assumption of risk doctrine.
First, defendant argued that it was immune from liability pursuant to section 831.2, which shields public entities from liability for claims arising from a natural condition. Defendant contended that, although the tunnel was man-made, the condition that caused plaintiff's fall—a wet slippery rock—was a natural condition and thus it was immune from plaintiff's claim of injury.
Second, defendant argued that it was immune from liability under section 831.7, which generally shields public entities from claims arising from hazardous recreational activities, including water contact activities and spelunking. Defendant asserted that plaintiff engaged in a hazardous recreational activity with a substantial risk of injury by exploring a dark tunnel made of rock, while walking on rock and in water, and thus it was immune from liability.
Third, defendant argued that it had no duty to eliminate the risks that are inherent in an activity or sport. Defendant contended that plaintiff was exploring a tunnel that she knew was dark, wet, and slippery. Plaintiff proceeded through the tunnel in bare feet and without a light, alternating between walking in water and walking on rock. Defendant contended that slipping and falling were inherent risks of the activity, and that the primary assumption of the risk doctrine barred her claim of injuries.
C. The Opposition
Plaintiff contended that defendant's immunity defenses did not apply. Regarding section 831.2, plaintiff argued that the immunity for injuries resulting from a natural condition did not apply, because the tunnel where she slipped was man-made, people had diverted water from its natural course into the tunnel, and these activities by people created the conditions (wet, slippery rocks) where she fell. Regarding section 831.7 immunity for a claim arising from a hazardous recreational activity, plaintiff argued that she was not exploring a cave, but rather was walking through a tunnel, which is not a hazardous recreational activity. Plaintiff further contended that the primary assumption of the risk doctrine did not apply to her activity of walking through a man-made tunnel.
D. The Trial Court's Order and Judgment
The trial court granted defendant's motion for summary judgment. The trial determined that, although there were triable issues of material fact regarding (a) whether a dangerous condition existed on the property, (b) whether defendant had constructive notice of the condition, and (c) whether defendant had sufficient time to remedy the condition prior to plaintiff's injury, plaintiff's civil action was barred by the natural condition immunity and the hazardous recreational activity immunity.
The trial court found that "plaintiff's injuries were the result of walking on slippery, wet rocks in a diverted creek." The court determined that this condition on the property was created by "a combination of human activities and natural forces." The court found it undisputed that the tunnel had existed for decades, and "that water flowed through it on the date in question covering slippery rocks much like a natural stream." Relying on Knight v. City of Capitola (1992) 4 Cal.App.4th 918 (Knight), the trial court explained that "[s]uch a combination of forces, particularly where it produces over a long period of time a condition similar to those which occur in nature, has repeatedly been held to come within the immunity provided by Section 831.2."
Regarding immunity for a hazardous recreational activity, the trial court determined that plaintiff had conceded that she engaged in a recreational activity. Further, her boyfriend indicated that the activity was "obviously hazardous," and he warned her of the danger of the activity.
A judgment of dismissal was entered in favor of defendant.
IV. DISCUSSION
Plaintiff contends that the trial court erred in granting the motion for summary judgment based on the natural condition immunity and the hazardous recreational activity immunity. She argues that the natural condition immunity does not apply because the wet tunnel where she was injured was "man-created" and not a "natural phenomenon." Regarding the immunity for a hazardous recreational activity, plaintiff contends that there are triable issues of material fact, including whether she was engaged in a hazardous recreational activity and whether certain exceptions to the immunity apply.
In response, defendant contends that the natural condition immunity may apply to property previously altered by humans where, as here, the ground condition at issue consisted of rock and creek water as found in nature. Regarding immunity for a hazardous recreational activity, defendant argues that there are no triable issues regarding application of the immunity or whether exceptions to the immunity apply in this case. Defendant further argues that the judgment should be affirmed because plaintiff's action is barred by the primary assumption of the risk doctrine.
We will first set forth the standard of review, and then we will analyze plaintiff's contention that the trial court erred in ruling that her civil action is barred by the natural condition immunity (§ 831.2). Because we find that issue dispositive, we do not address the other issues raised by the parties, including whether plaintiff's cause of action is also barred by the hazardous recreational activity immunity or the primary assumption of the risk doctrine.
A. The Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) In performing our independent review, we apply the same three-step process as the trial court. "Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159 (Baptist).)
"We then examine the moving party's motion, including the evidence offered in support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because an element of the cause of action cannot be established or there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c, subds. (o) & (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.)
If the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
In determining whether the parties have met their respective burdens, "the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.) Thus, "[a] party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]" (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)
B. Natural Condition Immunity Under Section 831 .2
In the operative pleading, plaintiff alleged a single cause of action for premises liability against defendant based on three theories: negligence, willful failure to warn, and dangerous condition of public property.
"Under the Government Claims Act (Gov. Code, § 810 et seq.), a public entity is not liable '[e]xcept as otherwise provided by statute.' (Gov. Code, § 815; [citation].) If the Legislature has not created a statutory basis for it, there is no government tort liability. [Citation.]" (State ex rel. Dept. of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009.) By statute, "[a] public entity is generally liable for an injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury and the public entity had actual or constructive notice of the dangerous condition. (§§ 835, 835.2; [citation].)" (Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929.)
However, section 831.2 provides government immunity for injuries caused by the natural condition of unimproved public property. Section 831.2 states: "Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach."
"The immunity provided by section 831.2 is absolute and applies regardless of whether the public entity had knowledge of the dangerous condition or failed to give warning. [Citations.] The legislative purpose in enacting section 831.2 was to ensure that public entities will not prohibit public access to recreational areas due to the burden and expense of defending against personal injury suits and of placing such land in a safe condition. [Citation.]" (Goddard v. Department of Fish & Wildlife (2015) 243 Cal.App.4th 350, 360 (Goddard).)
"[S]ection 831.2 has been broadly construed to provide immunity even where a natural condition has been affected in some manner by human activity or nearby improvements. [Citations.]" (Goddard, supra, 243 Cal.App.4th at p. 361.) Thus, "[i]t is now generally settled that human-altered conditions, especially those that have existed for some years, which merely duplicate models common to nature are still 'natural conditions' as a matter of law for the purposes of Government Code section 831.2. [Citations.]" (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 314.)
For example, in Osgood v. County of Shasta (1975) 50 Cal.App.3d 586 (Osgood), the appellate court concluded that a county was immune under section 831.2 from a wrongful death action regarding a water-skier who was killed at Shasta Lake. (Osgood, supra, at pp. 587, 590.) The plaintiffs argued that the physical configuration of the lake was dangerous due to its " 'hundreds of coves, inlets, arms and legs,' " which limited visibility of boat operators and water skiers. (Id. at p. 588.) The plaintiffs further argued that the natural condition immunity did not apply because "Shasta Lake is man-made and is not natural." (Id. at p. 589.) The appellate court analyzed the legislative history of section 831.2 and concluded that the legislative intent was to apply an unconditional immunity to all public lakes, including "artificial lakes" such as Shasta Lake. (Osgood, supra, at p. 590.) Moreover, the appellate court determined that "it goes without saying that the shoreline of the lake is a natural condition thereof within the meaning of the section." (Ibid.)
Subsequently, this court in Knight, supra, 4 Cal.App.4th 918, concluded that a city was immune under section 831.2 from liability to a bodysurfer who was injured at a beach in 1987. (Knight, supra, at pp. 924, 926, disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7.) The beach had previously been completely carried away by wave action in the 1960's. The beach was essentially rebuilt in 1970, along with the addition of a "large rock 'groin' jetty" which "protrud[ed] into the ocean at right angles to the beach line." (Knight, supra, at pp. 924-925.) The plaintiff contended that the construction and existence of the rock groin jetty artificially changed the configuration of the ocean floor, which caused dangerous shore-breaking waves that led to his injury while bodysurfing. (Id. at pp. 924, 925.) The plaintiff argued that there were triable issues of fact regarding whether the public property was unimproved and whether the condition was natural. (Id. at p. 927.)
On the first issue of whether the property was improved or unimproved, this court determined that the fact the "beach was artificially rebuilt, and sheltered by an artificially created rock groin, 17 years before [the plaintiff's] accident would appear insufficient in and of itself to negate section 831.2 immunity." (Knight, supra, 4 Cal.App.4th at p. 928.) This court reached this conclusion based on authorities such as Osgood, and on the language of section 831.2, which applies to an injury caused by " 'any natural condition of any lake, stream, bay, river or beach.' " (Knight, supra, at p. 928.) On the second issue of whether the condition that was created by the reconstructed beach, the addition of the rock groin, and the ocean waves was natural, this court observed that there was no showing that the shore-breaking waves, or the configuration of the ocean floor which could contribute to those waves, were unique to that beach or that particular coastal area, or that the new beach differed in material respects from the old beach. (Id. at pp. 928-929.) This court concluded "as a matter of law" that, at most, "a combination of human activities and natural forces created the condition which resulted in [the plaintiff's] tragic injuries. Such a combination of forces, particularly where it produces, over a long period of time, a condition similar to those which occur in nature, has repeatedly been held to come within the immunity provided by section 831.2. [Citations.]" (Id. at p. 929.)
Another case, Goddard, supra, 243 Cal.App.4th 350, is also instructive. In Goddard, the decedent drowned in the Tuolumne River after allegedly getting caught in the current over a breach in the remnant of a dam. (Id. at p. 353.) The appellate court concluded that a public entity, the Department of Fish and Wildlife, was immune from suit under section 831.2. (Goddard, supra, at p. 353.)
The dam was constructed in the 1930's, and had needed repairs since the 1940's. (Goddard, supra, 243 Cal.App.4th at pp. 353-354.) In the 1970's, the Department of Fish and Wildlife "made a mid-channel breach to allow fish passage at low flows and installed a fish ladder that later washed away." (Id. at p. 355-356.) In 2009, the decedent was allegedly at or near the dam when he was "swept up in the current, went over the breach, got caught under the rush of water, and drowned." (Id. at pp. 353, 356.) The decedent's adult children sued various public entities. (Id. at p. 352.) They contended that the natural condition immunity did not apply because the dam remnant was not a natural condition of public property. (Id. at p. 357.) They argued that the " 'human-altered, artificial, abandoned and condemned Dam remnant cannot be considered a duplicate model common to the natural condition of the river or riverbed. The man-made, artificial structure is not part of a natural element like a beach or shoreline. The structure is unnatural and has created a "drowning machine." ' " (Id. at p. 362, fn. omitted.)
The appellate court disagreed with the plaintiffs' characterization of the relevant issue. The court stated: "Plaintiffs' focus on the dam remnant as the natural condition at issue is misplaced. Instead, the focus is on the condition it creates, namely the current created by the remnant, which plaintiffs contend caused [decedent's] death, and whether a recirculating current duplicates a model common to nature. The water condition plaintiffs describe generally would be understood as a natural phenomenon that could be created not only by a man-made low-head dam or weir, but also by nature, such as a waterfall, rocks that run across a river or trees that are stuck in the river. The dam had been deteriorating essentially since its installation in 1933. . . . From the time the mid-channel breach was created and the fish ladder installed in 1974 to [decedent's] death in 2009, a nearly 35-year time span, the stretch of the Tuolumne River and breached remnants remained in place. This human-altered condition, which had existed for many years, merely duplicated a model common to nature and we consider it a natural condition as a matter of law. [¶] As in Knight, it appears here that a combination of human activities and natural forces created the condition which resulted in [the decedent's] death. This combination of forces produced over a long period of time a condition similar to that which occurs in nature, and therefore it comes within the immunity provided by section 831.2. [Citation.]" (Goddard, supra, 243 Cal.App.4th at p. 363.)
C. Analysis
In the instant case, the evidence establishes that plaintiff slipped while walking on a rock, which was wet due to water from a diverted creek that was running through the tunnel. To the extent plaintiff focuses generally on the "man-created" tunnel or the purportedly human diversion of the creek as the natural condition at issue, her focus "is misplaced." (Goddard, supra, 243 Cal.App.4th at p. 363.) Instead, the relevant focus is on the condition created by the tunnel and the diverted creek, namely the wet rock, and whether the wet rock "duplicates a model common to nature." (Ibid.)
Slippery, wet rocks are a phenomenon that can be created by nature, such as by a stream, river, or other body of water flowing over rocks or adjacent to rocks. Here, the undisputed evidence reflects that the tunnel existed for decades, and that water from a diverted creek had been running through the tunnel for some period of time, including on the date of plaintiff's injury. "This human-altered condition, which had existed for many years, merely duplicated a model common to nature and we consider it a natural condition as a matter of law." (Goddard, supra, 243 Cal.App.4th at p. 363.) As in Goddard, "it appears here that a combination of human activities and natural forces created the condition which resulted in [plaintiff's injury]. This combination of forces produced over a long period of time a condition similar to that which occurs in nature, and therefore it comes within the immunity provided by section 831.2." (Ibid.)
On appeal, plaintiff quotes extensively from Rendak v. State of California (1971) 18 Cal.App.3d 286 (Rendak) and Alana M. v. State of California (2016) 245 Cal.App.4th 1482 (Alana M.). She fails, however, to persuasively articulate how these cases advance her position that there is a triable issue of material fact regarding whether the natural condition immunity applies in this case. Both Rendak and Alana M. addressed whether the natural condition immunity applied to a condition on public property when the public property contained separate improved and unimproved areas. (Rendak, supra, at p. 288; Alana M., supra, at pp. 1491-1492.) In this case, there appears to be no dispute that the condition of the property where plaintiff was walking, that is, wet rock, was partly due to prior human activity in cutting out the tunnel and diverting the creek. The issue is whether that prior human activity precludes application of the natural condition immunity. As we just explained, where "a combination of human activities and natural forces created the condition which resulted in [plaintiff's injury]," and "[t]his combination of forces produced over a long period of time a condition similar to that which occurs in nature, . . . it comes within the immunity provided by section 831.2." (Goddard, supra, 243 Cal.App.4th at p. 363.)
In sum, we determine that plaintiff's cause of action for premises liability is barred as a matter of law, because defendant has absolute immunity pursuant to section 831.2. We therefore conclude that the trial court did not err in granting defendant's motion for summary judgment, and we will affirm the judgment.
V. DISPOSITION
The judgment is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.