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District Court of Appeal, Fourth District, California.

Howard C. LATTIN and Eskie Lattin, Plaintiffs and Appellants, v. COACHELLA VALLEY COUNTY WATER DISTRICT, Defendant and Respondent.*

Civ. 6464.

Decided: August 11, 1961

Julius S. Austero, Garden Grove, for appellants. Thompson & Colegate and Robert D. Allen, Riverside, for respondent.

This is an appeal by plaintiffs from a judgment on the pleadings in favor of defendant.

The Complaint.

Plaintiffs' amended complaint, on which judgment against plaintiffs was rendered, alleges, in general substance, that plaintiffs' son was, on November 23, 1957, drowned when he slipped into the Coachella Branch of the All-American Canal at or near a place called siphon 13; that at said place there existed a defective and dangerous condition, a dangerous trap; that defendant District was in control of the Canal, knew that the public generally was using it, knew of the dangerous condition, and failed after such knowledge to maintain safeguards or adequate warning signs such as could have reasonably been provided without interfering with the function or purpose of the Canal; that as a result of defendant District's negligent failure to maintain such safeguards, said accident and fatality ensued. The complaint further alleged heirship, damage, and compliance with the statute regarding claimed presentation prior to suit. Defendant moved the court for judgment on the pleadings, stating as the ground for the motion that the ‘complaint fails to state a cause of action against said defendant in that said defendant is immune from liability for tort.’ The court granted the motion. Plaintiffs appeal from the judgment entered pursuant thereto.

Governmental Immunity.

The sole point upon which the motion was made, and the sole point raised on this appeal by respondent in support of the order, is contained in respondent's contention that in the absence of a statutory or constitutional provision to the contrary, the State and its agencies are immune from liability in tort in the performance of governmental duties and activities. Respondent cites in support thereof Talley v. Northern San Diego County Hospital District, 41 Cal.2d 33, 257 P.2d 22; Stang v. City of Mill Valley, 38 Cal.2d 486, 240 P.2d 980; Vater v. County of Glenn, 49 Cal.2d 815, 323 P.2d 85; Nissen v. Cordua Irrigation District, 204 Cal. 542, 269 P. 171; McKay v. County of Riverside, 175 Cal.App.2d 247, 345 P.2d 949; and Whiteman v. Anderson-Cottonwood Irrigation District, 60 Cal.App. 234, 212 P. 706. Those cases at the time of the trial court's decision, were recognized as the law, and the trial court, of course, had no means of knowing that our Supreme Court would change the long-established rule of governmental immunity recognized by those cases.

However, the case of Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, in which the whole vexing problem of governmental immunity is thoroughly discussed, has squarely and unequivocally discarded as mistaken and unjust the rule of governmental immunity from tort liability. All of the arguments presented by respondent are considered and rejected in the Muskopf case wherein, speaking of governmental immunity, our Supreme Court stated, 55 Cal.2d at page 213, 11 Cal.Rptr. at page 90:

‘After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.’

While the Vater case is not directly referred to in the majority opinion, it is clear from both the exhaustive treatment of the subject by the majority opinion and from the fact that the Vater case is cited in the dissenting opinion, that that case must have been considered. The Vater case must therefore be deemed overruled insofar as it conflicts with the principles set forth in the Muskopf case. This is likewise true of all the other cases which preceded the Vater case. For further discussion of the effect of the decision in the Muskopf case and its meaning, see Lipman v. Brisbane Elementary School District, 55 Cal.2d 224, 11 Cal.Rptr. 97; and Kotronakis v. City and County of San Francisco, 192 Cal.App.2d 624, 13 Cal.Rptr. 709.

Our Legislature has already provided for possible changes in the rule of governmental immunity by statutory provisions setting up various restrictive procedural steps to be followed by a claimant wherever liability attaches. These procedural steps are, as to county water districts such as defendant herein, contained in Water Code, §§ 31083 to 31090. It is not contended on this appeal that these required procedural steps were not properly alleged in plaintiffs' complaint.

Plaintiffs' complaint is sufficient on the ground of objection presented to the trial court on the motion for judgment on the pleadings, and no other criticism of the complaint is made on this appeal.

The judgment is reversed.

SHEPARD, Justice.

GRIFFIN, P. J., and COUGHLIN J., concur.