STATE v. CALDER

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Court of Appeal, Third District, California.

STATE of California, et al., Petitioners, v. SUPERIOR COURT, Placer County, Respondent, William and Cheri CALDER, Real Parties in Interest.

No. C015122.

Decided: March 28, 1995

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Darryl L. Doke and Stephen J. Egan, Deputy Attys. Gen., Carroll, Burdick & McDonough, James W. Henderson, Jr., Joanna R. Mendoza and Niel A. Eskind, for petitioners. No appearance, for respondent. Gudmundson, Siggins, Stone & Skinner, Jeffrey A. Skinner, Francis M. McKeown, Eve M. Felitti, San Francisco, and Gregory S. Skinner, Incline Village, NV, for real parties in interest.

Real party in interest William Calder was injured seriously when he dove from a wooden pier into the drought-receded waters of Lake Tahoe at the King's Beach State Recreation Area (KBSRA), which had posted a “No Diving” sign near the entrance to its parking lot.   Calder and his wife (plaintiffs) brought the underlying action against petitioners (defendants) State of California (the State) and North Tahoe Public Utility District (the District), alleging they negligently designed and maintained a dangerous condition of public property and failed to adequately warn Calder of the danger.

The State moved for summary judgment pursuant to Government Code section 831.7 (section 831.7), which provides that public entities are immune from liability to persons who suffer injury while engaging in “hazardous recreational activities,” including diving into water “from other than a diving board or diving platform.”  (§ 831.7, subds. (a) & (b)(2);  further subdivision references are to subdivisions of section 831.7 unless specified otherwise.)   The State contended the undisputed facts established that the pier at KBSRA is not a diving board or diving platform and, thus, defendants are not liable for the injury which occurred while Calder was engaged in the hazardous recreational activity of diving.

In opposition to the motion, plaintiffs argued there is a triable issue of fact whether the pier at KBSRA is a diving platform within the meaning of subdivision (b)(2).   They further asserted that subdivisions (a) and (b)(2) provide no immunity because the accident was caused by defendants' failure to “guard or warn of a known dangerous condition ․ that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.”  (§ 831.7, subd. (c)(1).)

Respondent court denied the motion, ruling there are triable issues of fact whether the pier can be considered a diving platform and whether the sign prohibiting diving at KBSRA was adequate to warn of a dangerous condition.

The State filed in this court a petition for peremptory writ of mandate, in which the District joined, seeking to overturn the respondent court's ruling.   We issued an alternative writ of mandate and stayed the trial pending further order of this court.

In this writ proceeding, defendants contend they are entitled to summary judgment because (1) the evidence uniformly indicates the pier is not a diving platform, even if it is foreseeable that certain members of the public will dive from it, and (2) subdivision (c)(1)'s exception from immunity does not apply because the risk of striking the ground below the water is inherent in the act of diving.   We agree and shall issue a peremptory writ.

FACTS

The pier at KBSRA was constructed prior to 1939 and was purchased by the State in 1974.   The District has maintained the pier for the State since 1979.

The pier is utilized by sightseers and sunbathers and has been used as a docking facility for boats.   Defendants never attempted to ensure that the pier could be used safely for diving.   The pier has never been within an area officially designated as a swimming area, the lake bottom surrounding the pier has never been dredged to make it deeper, there has never been a procedure in effect to measure the depth of the water at the end of the pier, and there are no lifeguards at the site.   For at least a year prior to Calder's accident, a sign had been posted near the entrance to the KBSRA parking lot stating:  “No Diving Within the State Park System.”   The sign is plainly visible to persons entering the parking lot;  however, it is not necessary to pass through the parking lot in order to reach the pier.

Plaintiffs presented evidence that, notwithstanding the prohibition on diving from the pier, KBSRA visitors routinely use it for diving, as they have for many years.   In the 1950's, there were two piers at King's Beach:  a pier no longer in existence, which was known to area residents as the “gas dock,” and the present pier, which was known as the “swimming pier.”

On the date of the accident, June 11, 1987, a KBSRA visitor saw 20 to 30 people on the pier;  “quite a few” of them dove into the water.   The visitor saw people on the pier on other occasions, and no one from the District tried to prevent people from diving off the pier.   Children periodically rode bicycles off the end of the pier, and no one from the District tried to stop that activity.   Another KBSRA visitor saw 3 to 5 people diving off the pier repeatedly.   Two District employees and a Deputy Sheriff testified to public diving from the pier.

On occasions prior to his accident, Calder had seen approximately 50 people dive off the pier.   When he dove from the pier in 1986, the water was 4.5 to 5 feet deep.   On the date of the accident, the water was only 3 feet deep, and the surface of the pier was 4 feet 4 inches above the surface of the water.

Defendants performed routine maintenance on the pier to ensure that it was a safe place upon which to walk or sit.   On a weekly basis, the pier was inspected for damaged boards and protruding nails.   An employee of the District had performed routine safety checks of the pier since January 1986.

The District did nothing to prohibit diving from the pier until July 1986, when the State requested that the no-diving sign be posted at the entrance to the recreation area.   The sign could not be seen from the pier, and no similar warning was placed on the pier itself.   Several KBSRA visitors testified they did not see the sign or did not recall seeing it.

Calder testified he tried to dive as horizontally as possible into the water.   However, he struck his head on the lake bottom, injured his spine, and was rendered a quadriplegic.

DISCUSSION

I **

II

 A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ.Proc., § 437c, subd. (c).)  A defendant is entitled to summary judgment if a necessary element of the plaintiff's cause of action cannot be established or if there is a complete defense to the cause of action, so that under no hypothesis is there any factual matter requiring a trial.  (Code Civ.Proc., § 437c, subd. (o)(2);  Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.)

 Defendants moved for summary judgment on the ground the undisputed facts established that Calder was injured while engaged in a hazardous recreational activity and, therefore, the statutory immunity set forth in section 831.7 established a complete defense.   Where the facts are undisputed, the issue of whether plaintiff was engaged in a hazardous recreational activity is a question of law.  (Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519, 6 Cal.Rptr.2d 437.)

Section 831.7 provides in pertinent part:  “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity ․ for any damage or injury to property or persons arising out of that hazardous recreational activity.  [¶] (b) As used in this section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.  [¶] ‘Hazardous recreational activity’ also means:  ․ (2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given.”

Thus, to be entitled to summary judgment, defendants had to establish either that the pier is not a diving board or diving platform, or that the pier is a structure where diving is prohibited and that reasonable warning thereof was given.   If the pier is not a diving board or diving platform, then defendants did not need to prove they reasonably warned the public that diving from the pier was prohibited.  (Valenzuela v. City of San Diego (1991) 234 Cal.App.3d 258, 263–264, 286 Cal.Rptr. 1;  Rombalski v. City of Laguna Beach (1989) 213 Cal.App.3d 842, 851, 261 Cal.Rptr. 820.)

Defendants contend the court erred in denying summary judgment because the undisputed facts established the pier is not a diving board or diving platform.   We agree.

In Berry v. State of California (1992) 2 Cal.App.4th 688, 3 Cal.Rptr.2d 382, this court held that a “diving platform,” within the meaning of section 831.7, is “an artificial structure designed and maintained for the purpose of diving.”  (Id., at p. 690, 3 Cal.Rptr.2d 382.)   We explained:  “Here, the term ‘diving platform’ is subject to a vast array of meanings.   We therefore consider the aim of the legislation.  ‘The Legislature obviously intended to shield public entities from liability claims arising from hazardous recreational activities, without unduly restricting the use of public lands for such purposes.’  [Citation.]  [¶] Section 831.7 exempts diving from diving boards and diving platforms from hazardous activity.   The inference to be drawn from these exemptions is that diving from such structures is generally not hazardous.   That would be the case if a ‘diving platform’ (like a diving board) meant an artificial structure designed and maintained for the purpose of diving.   We think that is the correct definition․  [¶] We are loath to adopt a broader definition of ‘diving platform.’   Every dive is made from a surface that might qualify as a ‘platform.’   However, a broader definition would jeopardize the statutory intent of section 831.7 by making public entities liable for hazardous activities.”  (Id., at p. 692, 3 Cal.Rptr.2d 382.)

Defendants contend “[i]t is undisputed that the pier was not designed by the State and maintained by the State or [the District] as a ‘diving board or diving platform.’   The facts are undisputed that Calder sustained his injuries when he dove off the pier at KBSRA.   Applying the law to the undisputed facts of this case requires the result that [defendants are] immune from liability for the Plaintiff's [sic ] damages in this case.   Any other result is contrary to both the statutory language and the case law interpreting that statutory language.”

 Defendants' argument finds support in the declarations of Robert G. Macomber, district superintendent for the State, and John C. Hassenplug, general manager of the District, which assert the following:  defendants did not design or maintain the pier for diving;  the pier is not within an area officially designated as a swimming area;  and defendants did not attempt to ensure that the pier could be used safely for diving—the lake bottom surrounding the pier has never been dredged to make it deeper, there has never been a procedure in effect to measure the depth of the water at the end of the pier, and there are no lifeguards at the site.

Plaintiffs claim the foregoing declarations are conclusory and self-serving, and suggest defendants' intent not to maintain the pier for diving was not established because the declarations are “[t]he only evidence” of intent offered.

The record reflects no ruling by the trial court on plaintiffs' evidentiary objections and no evidence that plaintiffs attempted to insist on a ruling.   Furthermore, although plaintiffs allude to their evidentiary objections on appeal, they fail to brief them with any specificity.   They merely allege the declarations are conclusory, without foundation, and contain hearsay, but plaintiffs do not explain why they believe this is so or point to which portions of the declarations these objections pertain.   Under the circumstances, their objections are waived.  (Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 924, fn. 2, 6 Cal.Rptr.2d 874;  St. Sava Mission Corp. v. Serbian Eastern Orthodox Diocese (1990) 223 Cal.App.3d 1354, 1372, fn. 6, 273 Cal.Rptr. 340;  Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334, 4 Cal.Rptr.2d 897 [a party must brief its arguments on appeal rather than simply relying on its trial briefs].)

 In any event, in addition to the aforementioned declarations, defendants' intent not to maintain the pier for diving was established unequivocally by their erection of a sign at the entrance to the KBSRA stating:  “No Diving Within the State Park System.”   Plaintiffs presented evidence that, as a safety device, the sign was inadequate to warn park visitors of the danger of diving.   However, they have not challenged the sign's adequacy as evidence of defendants' intent that the pier is not for use as a diving platform.

Plaintiffs claim defendants' expressed intent is contradicted by the undisputed fact that defendants knew the pier was being used for diving.   Citing section 8A of the Restatement Second of Torts, which states that an actor constructively intends a result when the actor is substantially certain the result will follow from his or her conduct,1 plaintiffs contend there is evidence the pier was a diving platform because defendants were “substantially certain” the pier would be used for diving and failed to take meaningful steps to prevent it.   In effect, plaintiffs believe that the statutory exemption from immunity extends to “constructive diving platforms,” i.e., structures from which it is substantially certain that people will dive regardless of whether the structure was designed and maintained for that purpose.   We disagree.

Section 831.7 evidences the Legislature's determination that, by its very nature, diving generally is a hazardous activity for which a public agency should not be liable unless it permits diving from a board or platform specifically designed and maintained for diving.  (Berry v. State of California, supra, 2 Cal.App.4th at p. 692, 3 Cal.Rptr.2d 382.)   The Legislature undoubtedly found that diving from a diving platform should not be deemed hazardous because, by designing and maintaining the platform for diving, the public agency has accepted the responsibility to take the steps necessary to ensure that diving from the platform will not pose a danger to the public.   For example, the agency has explicitly assumed the burden of making sure the water is sufficiently deep and there are no objects in the water that could harm a diver.

Plaintiffs suggest this carefully delineated exception to governmental immunity for injuries from diving should be extended to any public structure which is substantially certain to be used by the public for diving.   In effect, plaintiffs suggest it is the foreseeable use of the structure rather than its purpose which should dictate whether the structure is designed and maintained as a diving platform.   They are wrong.

To construe subdivision (b)(2) to preclude governmental immunity for injuries caused by diving from any public structure simply because it was used by the public for diving with the governmental agency's knowledge would require the insertion of words to that effect into the statute.  “Doing so would violate the cardinal rule that courts may not add provisions to a statute.”   (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 827, 4 Cal.Rptr.2d 615, 823 P.2d 1216.)

 Under the statutory scheme, the public assumes the risks posed by diving unless it is performed from a structure which the public agency has specifically designed and maintained for diving.   Unless you are diving from such a structure, you should be expected to “look before you leap.”  (See, e.g., Valenzuela v. City of San Diego, supra, 234 Cal.App.3d at p. 263, 286 Cal.Rptr. 1 [an inherent risk of diving is hitting one's head if the water is too shallow].)   If the structure was not designed and maintained as a diving platform, its use by the public for diving will not convert the structure into a diving platform, even if the agency is aware of such use.   Otherwise, the public could dictate the purpose of a structure simply by misusing it and, thus, evade the immunity established by subdivision (b)(2).  (Cf. Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1383–1385, 4 Cal.Rptr.2d 16 [although it knew that children sometimes rode bicycles down a hill too steep and dangerous for bike riding, the city was not liable for failing to prevent such use or warn of its danger];  Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380, 1383–1385, 33 Cal.Rptr.2d 55 [although it knew that young children were attracted by and swung from ropes in trees over rough terrain and high gorges, the city had no obligation to take steps to prevent rope swinging by children on public property, and was immune from liability for injuries resulting therefrom].)

 To preclude the District from availing itself of the statutory immunity of section 831.7 simply because the District knew of the improper use of its pier for diving and did nothing to stop it would defeat the intent of the statutory scheme.   Although it may be common knowledge that people are using a public facility to engage in activities which are dangerous to their health, “at some point the obligation of the public entity to answer for the malfeasance or misfeasance of others ․ reaches its outer limits.”   (Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492, 500, 147 Cal.Rptr. 898.)   For diving, the Legislature has drawn the line as follows:  Unless you dive from a public structure specifically designed and maintained for diving, i.e., a diving board or diving platform, you do so at your own risk regardless of whether the public entity was aware of the diving and failed to prevent it.

Plaintiffs also claim they presented evidence raising a triable issue of fact regarding whether the pier was designed and maintained for the purpose of diving.   To support their contention, plaintiffs rely on historical evidence of people diving from the pier, the public's recent use of the pier for that purpose, evidence that the State performed routine maintenance on the pier, the pier's visual appearance, and evidence that it was not dangerous to dive from the pier under normal conditions.   None of the proffered evidence raises a triable issue of material fact.

Plaintiffs contend they presented “uncontroverted historical evidence” suggesting the pier was designed for “swimming activities, including diving.”   Plaintiffs rely on the declaration of Jay Thelin, which states that the pier was known as the “swimming pier” in the 1950's, while a second pier no longer in existence was used for boating activities.   Plaintiffs further assert that the pier was designed for diving because “the public used the pier for diving,” and cite to declarations and depositions from several area residents and agency employees establishing that “[t]he public regularly dove off this pier.”

Plaintiffs' reliance on these declarations is misplaced.   Evidence of how the pier was used by the public between the 1950's and the present does not raise a triable issue as to its intended use when it was designed in the 1920's or 1930's.   Moreover, as we have explained, use by the public, historical or otherwise, cannot convert into a diving platform a structure that was not designed and maintained for the purpose of diving.   That the pier was known as the “swimming pier,” while another pier was designated for boating activities, does not support an inference that the pier was designed or maintained for diving.   Rather, the logical inference is that this appellation was used because people could safely swim in the area, free from the dangers presented by boats attempting to dock, since all boating activities were conducted at the second pier.   That the water around the pier was safe for swimming does not tend to prove that the pier was designed for diving;  one activity is not the equivalent of the other.

To support their contention the pier was maintained as a diving platform, plaintiffs rely on evidence that the state routinely maintained the pier and had knowledge the public was diving off of it.   Plaintiffs note that, although a sign prohibiting diving in KBSRA was erected in the parking lot in 1986, the public continued to dive from the pier, and defendants took no further measures to prevent the unauthorized diving.   According to plaintiffs, defendants' maintenance of the pier and failure to take more effective measures to preclude diving support an inference that “the pier was still ․ maintained as a diving platform” at the time of Calder's injury.   We are not persuaded.

Defendants presented evidence that they performed routine maintenance on the pier to ensure that it was safe to walk or sit on, but did not perform the type of maintenance one would associate with a diving platform.   For example, defendants did not periodically measure the depth of the water at the end of the pier or dredge the lake bottom surrounding the pier to make the water deeper.   Plaintiffs presented no contrary evidence.   Instead, they theorize that, if a public agency owns a structure and maintains it in a safe condition for some purpose other than diving but knows the public is using the structure for diving, this supports an inference that the agency in effect is maintaining the structure for the purpose of diving, which in turn supports a determination that the structure is a diving platform.   In other words, plaintiffs are reiterating their claim that public use can transform a structure into a diving platform even if the structure was not designed and maintained for this purpose.   As explained previously, their contention is unavailing.

Plaintiffs assert:  “From its appearance alone, this pier looks like a diving platform.”   They claim the pier is 200 feet long, “giving the appearance of extending into deep water․”  The pier has no railings, no ladders down to the water,2 no cleats for tying off boats, and no warnings that the pier is inappropriate for diving.   From these outward indications, plaintiffs infer that the pier was designed as a diving platform.  (See Code Civ.Proc., § 437c, subd. (c).)  The contention fails;  none of these features supports an inference that the structure was designed for diving.   To the contrary, the photographs of the structure indicate it is nothing more than a common pier.

 Piers are structures that form a landing place for vessels and a promenade or pleasure resort for the public.  (Websters Third New Internat. Dict. (1971) p. 1712.)   The absence of facilities for tying up boats suggests the pier in question was not intended primarily for boats, but does not permit an inference that it was designed for diving.   Rather, a permissible inference is that it was designed for a pier's typical use, that of a place for promenading or sunbathing, a use which the evidence supports.

The fact the pier is 200 feet long may permit speculation that it extends to “deep water,” but it does not permit an inference to that effect.   An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts.  (Evid.Code, § 600, subd. (b).)  It is neither logical nor reasonable to deduce from the mere length of a pier that it leads to deep water.   The tragic facts of this case demonstrate why.

The absence of railings on the pier does not permit an inference that the entire pier, or any part of it, was intended for diving.   Plaintiffs claim that, under similar facts, the Supreme Court of New Jersey held a pier to be a diving platform.  (McLaughlin v. Rova Farms, Inc. (1970) 56 N.J. 288, 266 A.2d 284.)   However, McLaughlin is readily distinguishable.   In McLaughlin, the pier stood 4 feet above the water which was 3 to 4 feet deep.  (266 A.2d at p. 288.)   The pier was equipped with siderails but “the flooring planks extended about six feet farther out over the water beyond the end of the siderails.”  (Id., 266 A.2d at p. 287.)  McLaughlin held that, by virtue of the extended flooring, “the structure was given the appearance of a diving platform,” and its owner “must be deemed to have extended an invitation to use it for that purpose.”  (Id., 266 A.2d at p. 295.)   Thus, by physically prohibiting diving from portions of the pier, the owner impliedly assured users that diving from the remainder of it was safe.   Here, however, the pier had no siderails or other features which implied that diving from any part of it was safe.

 Finally, the absence of a warning sign on the pier does not permit an inference that the structure was designed for diving;  otherwise, all artificial structures extending over water would be deemed diving platforms as a matter of law unless diving was prohibited expressly.   This is not so.   Furthermore, plaintiffs offered no evidence that piers ordinarily are designed and maintained for diving and that those which are not so designed and maintained generally bear signs which so indicate.   Under the facts of this case, the absence of a warning sign does not permit an inference that the pier at KBSRA was designed for diving or that diving from it would be safe.

According to plaintiffs, “Further evidence that the pier was designed for diving lies in the fact that when the lake is at its normal level there would be 5 to 6 feet of water off the end of the pier.   Since the platform of the pier is located 8 feet above the smooth, sandy bottom, it was not hazardous for the public to dive from the pier, 2 to 3 feet above the water, into a depth of 5 to 6 feet.”   The unstated premise of this argument is that droughts at Lake Tahoe are so unusual that the pier reasonably could have been designed for diving without making any provision for its safe use when the lake level is low.   However, plaintiffs presented no evidence of the frequency of drought conditions at the site.   In the absence of such evidence, plaintiff's argument is mere speculation and does not raise a triable issue of fact.

As a matter of law based upon the undisputed facts of this case, the pier was not a diving platform within the meaning of section 831.7, subdivisions (a) and (b).3

III

Even though the pier is not a diving platform, plaintiffs contend section 831.7 offers no immunity because Calder's injuries were caused by defendants' failure to warn of the known danger of diving from the pier.   Plaintiffs rely on section 831.7, subdivision (c), which provides in pertinent part:  “Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for ․ [¶] (1) Failure of the public entity or employee to guard or warn of a known dangerous condition ․ that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose․”

Plaintiffs contend they raised triable issues of fact regarding whether defendants had knowledge of the dangerous condition and failed to warn of the danger, since plaintiffs presented evidence defendants were aware or should have been aware that the water at the end of the pier was shallow, that people were diving off the pier, and that another individual had injured himself seriously by diving from the pier.   Plaintiffs also argue there are triable issues regarding whether Calder reasonably assumed a risk inherent in the recreational activity undertaken.   Plaintiffs claim that, by diving into the water, Calder “did not assume the risk” of hitting his head “because he did not know of the risk.”   This is so, they maintain, since Calder “was very much surprised by the shallow water” and because the depth of the water could not be ascertained accurately by visual inspection while standing on the pier.   Plaintiffs' arguments are unavailing.

 The exception to immunity set forth in subdivision (c)(1) does not apply unless the injury was suffered because the government entity failed to warn or guard against some additional dangerous condition, which is not an inherent part of the risk presented generally by the specified hazardous activity.  (Perez v. City of Los Angeles, supra, 27 Cal.App.4th at pp. 1383–1384, 33 Cal.Rptr.2d 55;  DeVito v. State of California (1988) 202 Cal.App.3d 264, 271–272, 248 Cal.Rptr. 330.)   The risk that water may be too shallow for safe diving and, hence, could cause serious injury is an inherent risk of diving into water from other than a structure designed and maintained for the purpose of diving.  (Valenzuela v. City of San Diego, supra, 234 Cal.App.3d at p. 263, 286 Cal.Rptr. 1;  Rombalski v. City of Laguna Beach, supra, 213 Cal.App.3d at p. 852, 261 Cal.Rptr. 820.)   In fact, this risk is one of the primary reasons that diving is considered a hazardous recreational activity.   In the present case, plaintiffs have proffered no additional dangerous condition of which defendants had a duty to warn or guard against.   Consequently, defendants' knowledge of prior accidents or the shallowness of the water is irrelevant.

 Furthermore, plaintiffs may not defeat the statutory immunity simply by alleging Calder was ignorant of the inherent risk in that he did not know the water was shallow and, therefore, the risk was not “reasonably assumed” by him.   The immunity applies regardless of whether Calder had actual knowledge of the risk through experience, observation, or warning because the statute establishes an objective standard (i.e., what a reasonable participant would assume to be inherent in the activity), not a subjective one.  (Perez v. City of Los Angeles, supra, 27 Cal.App.4th at pp. 1385–1387, 33 Cal.Rptr.2d 55.)  “Thus, in determining whether a public entity is entitled to statutory immunity, a plaintiff's knowledge of any particular risks is irrelevant.”   (Id., at p. 1387, 33 Cal.Rptr.2d 55.)

 Because Calder was not diving from a diving platform or diving board, defendants had no responsibility to ensure that the water depth was sufficient for safe diving;  rather, Calder had to exercise due care by physically checking the depth of the water prior to diving into it.  (Cf. Perez v. City of Los Angeles, supra, 27 Cal.App.4th at p. 1384, 33 Cal.Rptr.2d 55 [even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons].)

Defendants have established that Calder was not diving from a diving platform and that he assumed the inherent risks that the water would be shallow and he would hit his head as a result.  (§ 831.7, subd. (c)(1);  Valenzuela v. City of San Diego, supra, 234 Cal.App.3d at p. 263, 286 Cal.Rptr. 1.)   Under the circumstances, defendants are entitled to summary judgment on plaintiffs' claims.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its order denying the State's motion for summary judgment and to enter a new order granting that motion.   Having served its purpose, the alternative writ is discharged.   Upon this decision becoming final, the stay previously issued by this court shall be vacated.

FOOTNOTES

FOOTNOTE.   See footnote * ante.

1.   “Intent is not ․ limited to consequences which are desired.   If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result․”  (Rest.2d Torts, § 8A, com. b.)

2.   Plaintiffs argue:  “There are no ladders leading from the pier down into the water.   Even the State admits that the pier is now primarily used by ‘sightseers and sunbathers.’  [Citation.]  What happens when sunbathers want to enter the lake for swimming?   This can only be accomplished in one of two ways:  diving or jumping.”   The weakness of plaintiffs' argument is demonstrated by their omission of the most obvious alternative:  leaving the pier and walking to the water.

3.   As explained previously, a “hazardous recreational activity” is defined in subdivision (b)(2) as “[a]ny form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given.”   Because we conclude Calder dove into water from a structure other than a diving board or diving platform, it is unnecessary to consider whether he dove from a structure “where diving is prohibited and reasonable warning thereof has been given.”  (Valenzuela v. City of San Diego, supra, 234 Cal.App.3d at 263–264, 286 Cal.Rptr. 1;  Rombalski v. City of Laguna Beach, supra, 213 Cal.App.3d at 851, 261 Cal.Rptr. 820.)

SCOTLAND, Associate Justice.

PUGLIA, P.J., and SPARKS, J., concur.