Opinion
Rehearing Denied Dec. 9, 1981.
For Opinion on Hearing, see 190 Cal.Rptr. 494, 660 P.2d 1168.
Opinions on pages 652-672 omitted.
[178 Cal.Rptr. 402]Memering & DeMers and Henry W. Crowle, Sacramento, for petitioner.
No appearance for Respondent.
Lewis, Lewis & Less, and Lawrence J. Less and Craig R. Blackstone, San Francisco, for real parties in interest.
BLEASE, Associate Justice.
Petitioner, Delta Farms Reclamation District No. 2028 (Delta Farms), seeks a writ of mandate directing respondent superior court to sustain its general demurrer to real parties' complaint for damages for injuries, including emotional distress, for the wrongful death of two teenage girls who drowned in a canal owned by the district. We issued 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 public 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 Government Code section 815. We deny Delta Farms the relief it seeks. [178 Cal.Rptr. 403]
Government Code section 815 provides: "Except as otherwise provided by statute: (P) (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. (P) (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."
FACTS
"A demurrer admits all material and issuable facts properly pleaded. (Citations.)" (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 729, 433 P.2d 732; California State Police Assn. v. State of California (1981) 120 Cal.App.3d 674, 680, 175 Cal.Rptr. 34.) 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 that visitors are likely to wade or swim there. Nevertheless, 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 (§ 835, subd. (a)) and that no liability attaches for a negligent failure to warn of a dangerous condition which was not so created. Delta Farms misreads the statute.
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 property 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: (P) (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 (P) (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."
Although the Tort Claims Act imposes liability only as "provided by statute" (§ 815), 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 Liability Practice (Cont.Ed.Bar 1980) § 2.7, pp. 36-37.) Specifically, negligence concepts inform the statutory basis of liability for failure to warn of a dangerous condition of property. (§§ 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, 80 Cal.Rptr. 485; and see Cameron v. State of California (1972) 7 Cal.3d 318, 327-328, 102 Cal.Rptr. 305, 497 P.2d 777; § 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 unreasonably 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 (creating a danger), plaintiffs (are) entitled to go before a jury on (a) passive negligence theory, i. e., an accident caused by the (entity's) failure to [178 Cal.Rptr. 404] warn the public against (the) danger known to it but not apparent to a reasonably careful ... user." (Cameron v. State of California, supra, 7 Cal.3d at p. 328, 102 Cal.Rptr. 305, 497 P.2d 777, quoting from Flournoy v. State of California, supra, 275 Cal.App.2d at p. 811, 80 Cal.Rptr. 485.)
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 entities are liable "for maintaining property in a condition that creates a hazard to foreseeable users 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.) "Public 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 interrelationship 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 condition at the time of injury; (b) the injury was proximately 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 v. City of Los Angeles (1975) 13 Cal.3d 297, 118 Cal.Rptr. 487, 530 P.2d 175.) 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 proximate result of the condition. The allegations of the likelihood 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, 101 Cal.Rptr. 358 ("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." (§ 835.2, 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 ...." (Ibid.)
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 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, 36 Cal.Rptr. 880), 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 participated 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. [178 Cal.Rptr. 405]
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. (P) (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 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. On the issue of due care, admissible evidence includes but is not limited to evidence as to: (P) (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering 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 public property or adjacent property (P) (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition."
II
Delta Farms seeks refuge in Government Code section 831.8, subdivision (b), which confers immunity on "irrigation 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 immunity for irrigation districts on the ground that reclamation 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 dangerous 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 831.8, subdivision (b), unlike that in section 831.8, subdivision (a) (for "public entities" generally), is made expressly applicable only to the state and to irrigation districts 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, 169 Cal.Rptr. 757.)
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 entity liability for a "dangerous condition (which) created a reasonably foreseeable risk of the kind of injury which was incurred ...." Negligence concepts are imported by the standards of foreseeability and due care contained in sections 835 and 830. "Injury" is defined in section 810.8. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 511, 146 Cal.Rptr. 614, 579 P.2d 505.) It provides: " 'Injury' means death, injury to a person, damage to or loss of property, 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 condition' 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 § 830, 32 West's Ann.Gov.Code, supra, at p. 265.)
[178 Cal.Rptr. 406]Under these provisions, an injury to "feelings" is compensible if it "is of a kind that the law would redress if it were inflicted by a private person." This imports a common law meaning into the statute, a meaning which includes the injury of emotional distress.
Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, establishes the rule for private persons: emotional distress is a compensable "injury" if "the risk of (such) harm to (plaintiff) was reasonably foreseeable" to defendants. (Id., at p. 923, 167 Cal.Rptr. 831, 616 P.2d 813.) 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 foreseeably follow from its breach." (Van Alstyne, supra, § 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.
PUGLIA, P. J., and REYNOSO, J., concur.