Opinion
Rehearing Denied Feb. 5, 1981.
Opinions on pages 388-420 omitted.
HEARING GRANTED [*]
[170 Cal.Rptr. 703]Tuttle & Taylor, Inc. and Douglas W. Beck, Los Angeles, for cross-defendants and respondents.
Dunne, Shallcross & Kane and Mark C. Kane, Los Angeles, and Gary S. Elster, San Diego, for cross-complainant and appellant.
Assigned by the Chairperson of the Judicial Council.
Appeal from a summary judgment granted to cross-defendants. The cross-complaint against respondents, uphill landowners, was for damage to appellant's property caused by a natural slide condition existing on respondents' land.
FACTS
Appellant owns beach front property in Malibu situated south of Malibu Road. (The road is owned by the County of Los Angeles.) Respondents own a 90 acre parcel lying between Pacific Coast Highway on the north and Malibu Road on the south. A known, natural, active landslide extends seaward from respondents' bluff property for some 1700 feet east along Malibu Road. In March 1978, heavy rains triggered slide activity causing the road to slip downward and the adjoining houses of appellant and Sexton (plaintiff in the original action below; not a party herein) to push into each other and toward the sea. Sexton filed an action against appellant to enjoin the encroachment of his residence on hers. Appellant cross-complained against Sexton, [170 Cal.Rptr. 704] the county, and respondents. Respondents filed a summary judgment motion arguing that under existing California tort and real property law, a landowner has no affirmative duty to remedy, and is not liable in nuisance, trespass, or negligence for harm caused by a natural condition of his land. In opposition, appellant did not dispute the fact that the landslide was a natural condition. However, he argued that the agreed facts raised a triable issue of negligence: whether a neighboring landowner, having knowledge of the dangerous condition of his land (whether it be artificial or natural) and the means by which to remove or alleviate the consequences of the natural condition, can sit idly by and watch as injury occurs to his neighbors resulting from the dangerous condition. Appellant admits that there are no California cases directly on point, but argues that existing public policy (codified in Cal.Civ.Code, § 1714(a)) and the developing nature of law do not permit use of a cloak of immunity finding its roots in antiquity.
Respondent, South Winter Mesa Associates, is a joint venture between respondents, the Adamson Companies and Century Malibu Ventures, Inc. South Winter Mesa owns the 90 acre unimproved parcel in issue.
Expert geologists testified in deposition that the slide had been evident at least since the first development of the area and perhaps dates back thousands or even millions of years.
California Civil Code section 1714(a) provides:
The trial court granted respondents' motion for summary judgment. The trial court denied appellant's motion to reconsider and to make findings of fact and conclusions of law.
In ruling on a motion for summary judgment, the court is without power to make findings of fact. (Perry v. Farley Bros. Moving and Storage, Inc. (1970) 6 Cal.App.3d 884, 889, 86 Cal.Rptr. 397.) The trial court's only duty is to determine "whether plaintiff or defendant has presented any facts which give rise to a triable issue or defense, not to pass on or determine the issue itself." (Id., 889, 86 Cal.Rptr. 397.)
DISCUSSION
The parties to this appeal do not disagree as to the facts. Their disagreement concerns whether those facts raise a triable issue of negligence. Since a summary judgment may properly be used to resolve an issue of law (Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 588, 39 Cal.Rptr. 208, 394 P.2d 548) it is only necessary for this court to determine whether the trial court properly applied the existing law to the agreed facts.
Negligent conduct may be predicated upon "a failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do." (Restatement of Torts 2d § 284(b). Appellant argues that because respondents knew a dangerous condition existed on their land, which could foreseeably damage their downhill neighbors, and knew of remedial steps which might be taken to stabilize the dangerous condition, they had a duty to take those steps. Their inaction was negligent.
Respondents argue forcefully that corrective measures suggested in a 1967 geological study of their property are either not feasible, prohibitively expensive, or not guaranteed to correct the slide condition. These arguments are defenses to a charge of negligent failure to act which we need not reach.
Both Dean Prosser and the Restatement of Torts 2d section 840 recognize a continuing rule of non-liability for natural conditions of the land. "The one important limitation upon the responsibility of the possessor of land to those outside his premises has been the traditional rule of both the English and American courts, that he is under no affirmative duty to remedy conditions of purely natural origin upon his land although they may be highly dangerous or inconvenient to his neighbors." (Prosser, Law of Torts (4th ed., 1971) § 57, p. 354.) The rule of non-liability has one limited exception for trees growing along a public highway. The owner is required to exercise "reasonable care to prevent unreasonable risk of harm to persons using the highway." (Restatement of Torts 2d, § 840(2).)
California cases, while not numerous, follow the traditional distinction. For example, the rule governing disposition of [170 Cal.Rptr. 705] surface waters in California: " 'Every landowner must bear the burden of receiving upon his land the surface water naturally falling upon the land above it and naturally flowing to it therefrom, and he has the corresponding right to have the surface water naturally falling upon his land or naturally coming upon it, flow freely therefrom upon the lower and adjoining, as it would flow under natural conditions.' " (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 319, 331 P.2d 1072.) Correlative rights and duties are established by the "natural" condition. Liability is based on a change in the natural flow, not necessarily on an unreasonable use by either uphill or downhill landowner. "If the actions of both upper and lower landowners are reasonable, necessary, and generally in accord with the foregoing, then injury must necessarily be borne by the upper landowner who changes a natural system of drainage " (Keyes v. Romley (1966) 64 Cal.2d 396, 409, 50 Cal.Rptr. 273, 412 P.2d 529; subsequently cited in Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 728, 84 Cal.Rptr. 11.) All three cases dealt with the rule in the context of an uphill landowner who had graded and developed his land, altering the natural drainage pattern to such an extent as to cause flooding and mudslides on the downhill property. Liability was based on their alteration of the natural condition.
In Boarts v. Imperial Irrigation District (1947) 80 Cal.App.2d 574, 182 P.2d 246, the court considered liability for damage to an adjoining landowner caused by a natural condition of the property: seeds from weeds on defendant's property infested plaintiff's property.
"In the case before us nothing was brought onto the land of defendant. The weeds were a natural growth. The wind carried the seeds to plaintiffs' property. No negligence of defendant appears and no public nuisance dangerous to the public safety, health, or welfare was proved. As it seems to be established by the cases we have cited that no duty rested on defendant to cut or destroy the weeds, plaintiffs cannot recover."
(Id., at 578, 182 P.2d 246.)
To reach its result, the court analogized to the case of Stewart v. Birchfield (1911) 15 Cal.App. 378, 114 P. 999, where an adjoining landowner cleared his property of brush and left it unirrigated. Winds blew large quantities of sand onto plaintiff's property. This case is cited in discussions of liability for natural conditions, however, the decision is actually based on a theory of reasonable use. " 'Every man may use his own land for all lawful purposes to which such lands are usually applied, without being answerable for the consequences; provided he exercises ordinary care and skill to prevent any unnecessary injury to the adjacent land owner ' " (Id., at p. 381, 114 P. 999.) The court found that the defendant had a right not only to clear the ground but to leave it uncultivated. The right was incident to ownership and did not create liability unless the activity itself was negligent.
An artificial condition of the land is treated in accord with the ordinary rules of negligence. For example, in Coates v. Chinn (1958) 51 Cal.2d 304, 332 P.2d 289, the court found that the eucalyptus trees, planted on defendants' property alongside the highway, were an artificial condition of the land and that defendants had not had any trimming done in five years. "In view of this evidence, plaintiffs properly contend that it was a question of fact whether defendants acted as reasonably prudent persons in permitting the eucalyptus trees to drop their limbs, particularly during the rainy weather of the early fall when the accident happened. Accordingly, plaintiffs were entitled to have their case submitted to the jury on the issue of negligence." (Id., at p. 309, 332 P.2d 289.)
These cases are in line with the general rule of non-liability for a natural condition of the land and liability for a dangerous artificial condition of the land, if the possessor acted unreasonably. (Restatement of Torts 2d, §§ 839-840.) Appellant in an attempt to distinguish these cases, asserts that they involve outmoded concepts of duty which have no continuing validity since the court's decision in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561. That landmark case did away with the rigid common law classifications which defined the landowner's duty of care toward visitors on his land according to [170 Cal.Rptr. 706] their status. It applied the ordinary principles of negligence instead.
"The proper test to be applied to liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative."
(Id., at 119, 70 Cal.Rptr. 97, 443 P.2d 561.)
While the language of the case is very broad, Rowland v. Christian did not do away with all common law limitations on liability. Liability in tort still requires a showing of a legally cognizable relationship giving rise to a duty to act or forebear. The case held that such a relationship was created by the visitor's presence on the land, not by the character of the visitors invitation (or lack thereof).
To date California law has not held that the relationship between adjoining landowners gives rise to a legal duty to alter existing natural conditions of one property in favor of the other. Rowland v. Christian in no way addressed this issue. Appellant argues that such a duty should exist. We are not persuaded by appellant's argument to create such a duty.
DISPOSITION
The judgment is affirmed.
KAUS, P. J., and ASHBY, J., concur.
[*] See 30 Cal.3d 358 for Supreme Court opinion in Sprecher v. Adamson Companies.
"(a) Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on Compensatory Relief.