WARDEN v. CITY OF LOS ANGELES

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Court of Appeal, Second District, Division 1, California.

Lew M. WARDEN, Jr., Plaintiff and Respondent, v. The CITY OF LOS ANGELES, Defendant and Appellant.

Civ. 41983.

Decided: February 14, 1974

Burt Pines, City Atty., and John T. Neville, Asst. City Atty., for defendant and appellant. Olney, Levy, Kaplan & Tenner and Richard Devirian, Los Angeles, for plaintiff and respondent.

Plaintiff suffered personal injury and property damage when his sail boat struck a submerged sewer pipe installed by defendant in the Santa Monica Bay. He recovered a judgment from which defendant appeals.

In 1945 defendant received permission from the United States Government which has jurisdiction over the navigable waters of the Santa Monica Bay to install under the bay an outfall sewer pipeline emanating from its Hyperion Sewage Treatment Plant in El Segundo. In 1949 defendant installed Such a pipeline 12 feet in diameter and encased in a rectangular block of concrete 24 feet wide. Part of the pipeline was sunk into the bay bottom and part extended upward into the water. In 1948, prior to making the installation, defendant in a letter to the Coast Guard inquired as to the type of buoys it would require at the surface to mark the location of the pipeline's protrusion into the water; the letter included the following paragraph: ‘Will you kindly note the conditions indicated and let me have your opinion relative to the advisability, in the interest of navigation and protection of the structure, for the City of Los Angeles to maintain a whistling buoy off the end of said structure?’ The Coast Guard replied by letter dated March 11, 1949, advising defendant that the Coast Guard required the installation of two nonlighted, nonaudible buoys, in colors, markings and dimensions then described, called ‘nun buoys,’ at two locations indicated; and that ‘The above requirements are subject to this condition that if small boat activity in this locality increases with the possible future development of a small boat harbor at Playa Del Rey, it may be necessary for a lighted sound buoy to be established. This buoy would replace the two unlighted nun buoys and should be a lighted bell, gong or whistle buoy of the following type and characteristics [etc.].’ At the time two marinas were already in operation in the Santa Monica Bay area. Defendant placed two nun buoys as described at the locations indicated by the Coast Guard.

In May 1964, a fishing boat collided with the pipeline in the fog; and in June 1964, two other vessels did so, one in fog and the other on a hazy day. On June 10, 1964, defendant discussed these accidents with Commander Hagadorn, Chief of the Navigation Aids Office, 11th Coast Guard District, and inquired about the advisability of adding lights, whistles or bells to the existing buoys in view of the large number of inexperienced boat operators using the two existing marinas; but the Commander emphatically stated that the existing marking system, the two nun buoys, was entirely adequate and expressed the opinion that no benefit would result from the use of buoyage utilizing lights or sound in addition to the color and markings of the presently installed buoys. However, he did suggest that a ‘leaflet’ be distributed throughout the area informing boat owners of the presence of the pipeline; defendant distributed such leaflet in September 1964. In 1965 the Playa Del Rey Yacht Harbor was constructed approximately two miles to the west of the pipeline, and boat traffic in its vicinity increased substantially.

On or about June 24, 1967, about 2:00 a. m., in a dense fog and with ‘very low visibility,’ plaintiff's 37-foot sail boat, offcourse from his presumed position, struck the pipeline and was damaged; plaintiff also suffered personal injury.

The trial court concluded ‘That the United States Coast Guard is the exclusive and sole authority for determining navigational aids on, near or about the sewer pipe and the Defendant has no authority to alter, correct, prescribe or otherwise take measures warning mariners of said pipe without the consent and authority of Coast Guard.’ This conclusion is of course valid and correct under applicable Federal statutes (U.S.C. Title 14, § 2; Title 33, § 403; also see Southern Oyster, Etc. v. Transcontinental Gas Pipe L., 159 So.2d 542, 544 [La.App.1963] wherein the Court of Appeal of Louisiana held that it [a state court] could not inquire into the propriety of a pipeline laid in a bay with the approval of the United States Corps of Engineers). Indeed, if defendant here had installed or maintained any form or type of buoy different from that expressly authorized by the Coast Guard it would have been guilty of a federal misdemeanor (U.S.C. Title 14, § 83). Accordingly, even though the trial court herein made a finding that: ‘The sewer pipe, together with the warning devices maintained by the defendant City of Los Angeles in connection therewith, constitutes a dangerous condition, which reasonably can be abated by the installation of visible and audible aids to navigation and by appropriate notice thereof being given to mariners through governmental publications,’ it consistently did not conclude that the maintenance of any particular type of buoy constituted a negligent act by defendant, which patently had no authority itself to remedy the form of such maintenance. (Cf. Gillespie v. City of Los Angeles, 36 Cal.2d 553, 557, 225 P.2d 522; Low v. City of Sacramento, 7 Cal.App.3d 826, 832, 87 Cal.Rptr. 173; Avey v. County of Santa Clara, 257 Cal.App.2d 708, 712, 65 Cal.Rptr. 181.)

Nevertheless the trial court concluded that defendant was negligent because of its failure to inform the Coast Guard of the three other boat collisions with the pipeline which had occurred prior to plaintiff's collision; and the failure ‘to seek authority to install a more comprehensive and adequate warning system.’ However, the evidence shows as a matter of law no negligence on the part of defendant in either respect. Regarding notice of the three other collisions, although the evidence is uncontroverted that defendant did not itself notify the Coast Guard immediately after each such collision had occurred, the evidence is also uncontroverted that the Coast Guard was notified and informed of each collision immediately after each occurred by others, and that on June 10, 1964, very close in time to the three collisions (May, June, 1964) defendant discussed these accidents with Commander Hagadorn of the Coast Guard and inquired about the advisability of adding lights, whistles or bells to the existing buoys. Thus, even assuming that defendant had the duty itself immediately after each collision, to notify the Coast Guard as to which there is no substantial evidence in the record and for which plaintiff cites no statutory or case law authority, it is settled that ‘there is no duty to tell or warn another concerning that which he already knows.’ (Knight v. Contracting Engineers Co., 194 Cal.App.2d 435, 447, 15 Cal.Rptr. 194, 201, and cases cited.)

As to defendant's asserted duty ‘to seek authority to install a more comprehensive and adequate warning system’ from the Coast Guard, the uncontroverted evidence establishes that prior to installing the pipeline defendant inquired of the Coast Guard as to the ‘advisability, in the interest of navigation and protection to the structure, for the City of Los Angeles to maintain a whistling buoy’; and later, on June 10, 1964, after the other three boat collisions, defendant once again inquired of Commander Hagadorn of the Coast Guard about the advisability of adding lights, whistles or bells to the existing buoys. In Shea v. City of San Bernardino, 7 Cal.2d 688, 62 P.2d 365, the Supreme Court held that even though defendant city was ‘entirely powerless' to remedy an existing railroad crossing hazard (a rail which extended above the surface of the intersecting street) because of the exclusive jurisdiction and control thereof by the railroad commission of the state, ‘it was the duty of the city at some time during the six-year period to call upon the railroad commission to order the rail to be lowered and thus to remove an obviously dangerous condition in the street.’ (Italics added; p. 693, 62 P.2d at p. 367.) Manifestly defendant here in thus twice inquiring about the advisability of adding lights or bells to the buoys prior to plaintiff's collision, satisfied the apparent requirement of Shea that the suggestion to a controlling government authority that an installation under its control be made safer need be proffered but once.

It is true that in the March 11, 1949, letter from the Coast Guard which authorized use of the two unlighted, inaudible buoys, defendant was also advised ‘that if small boat activity in this locality increases with the possible future development of a small boat harbor at Playa del Rey, it may be necessary for a lighted sound buoy to be established’; in 1965 the Playa Del Rey Yacht Harbor was opened; and there is uncontroverted evidence that defendant did not thereafter, prior to plaintiff's collision, again inquire of the Coast Guard about the efficacy of installing lighted or audible buoys in place of the existing ones. However, even assuming that defendant was under a duty to do so, in light of the obvious circumstance of which we can take judicial notice that the Coast Guard which controlled all boating in the area had independent knowledge of the commencing operation of this yacht harbor and its resultant enhancement of boat traffic (Evid.Code, §§ 452, subd. (g), (h), 459), the evidence establishes that such failure as a matter of law was not the proximate cause of the Coast Guard's failure to install any lighted, audible buoys after the opening of the yacht harbor and prior to plaintiff's collision with the pipeline. The evidence is uncontroverted that on April 30, 1970, after plaintiff's collision and after defendant had again communicated with the Coast Guard on the subject of safe markings for the area, the Coast Guard wrote defendant a letter, which after stating that ‘An on-site inspection of the [pipeline] area was made on March 1970, surface and aerial photographs were studied and records on file were reviewed to determine the importance of these buoys,’ recommended only that the existing buoys be replaced by two larger ones still unlighted and inaudible. Thus, even assuming that the same result (larger silent and inaudible buoys) could have been accomplished by defendant earlier had it communicated with the Coast Guard after the yacht harbor was opened and prior to plaintiff's accident, it clearly would have been of no benefit to plaintiff whose collision occurred in a dense fog with ‘very low visibility’ wherein only lights and sounds might have served as a warning.1 Considering the Coast Guard's overall course of conduct it is obvious that if the Coast Guard had desired the use of lighted and audible buoys at any time prior to plaintiff's collision it would have (as it of course could have) ordered defendant to install the same without the necessity of defendant's constant ‘needling‘ the Coast Guard in this respect.

Plaintiff alleged in his complaint, and in his oral argument in this court contended that the construction and installation of the pipeline in and of itself constituted a negligent act on the part of defendant. However, there is little or no evidence to support this bare contention, and indeed none that the installation failed to conform to regular, usual and accepted practice. Although there are two isolated items of testimony that the pipeline constituted a hazardous condition, and the trial court had included similar language in the finding heretofore quoted, it clearly appears from all of the evidence that each of these statements is made in the context that the pipeline was not inherently dangerous in the manner of its construction but could thereafter become so if not maintained with adequate buoys over which defendant had no authority or control. On this basis, and because there is no evidence that defendant had any option or choice even in respect to the manner in which the pipeline was constructed independent of the exclusive control over the Bay by the United States Government, there appears to be no liability on any theory of negligent construction.

The trial court also made a finding that various navigational charts did not adequately depict the pipeline as an ‘obstruction or a menace to navigation,’ defendant knew or should have known this and accordingly it should have so notified the Coast Guard or ‘other appropriate authorities,’ prior to plaintiff's collision.2 However, the evidence shows that the Coast and Geodetic Survey of the United States Government (which has the authority and duty to survey maritime areas, compiling charts and maps and disseminating the requisite data, under U.S.C. Title, 33, § 883a et seq.) had been informed about the existence and situs of the pipeline; and though the actual source of this information is not identified in the record, such source could have been defendant. But, again, there is no evidence establishing that defendant was under any express duty to inform the Survey about anything relating to the pipeline; and under the actual evidence that the Survey knew about it, we perceive no such absolute duty on defendant. In support of this plaintiff cites no statutory or case law authority.

On the basis of the foregoing it appears that plaintiff may have sued the wrong entity, for it is the United States Coast Guard which, as the trial court so aptly concluded, ‘is the exclusive and sole authority for determining navigational aids on, near or about the sewer pipe.’ In Afran Transport Company v. United States, 435 F.2d 213 (2 Cir. 1970) [cert. den. 404 U.S. 872, 92 S.Ct. 72, 30 L.Ed.2d 116], it was held that the Coast Guard was liable to the plaintiff whose tanker ran aground because a buoy had been negligently permitted to drift. Liability was again imposed against the Coast Guard for negligence in maintaining a buoy ‘off station’ thereby contributing to the ‘crowding‘ of plaintiff's ship by another, by reason of which the vessel was damaged when it touched bottom, in Richmond Marine Panama, S. A. v. United States (U.S.D.C. S.D.N.Y.1972) 350 F.Supp. 210. And in Cory v. City of Stockton, 90 Cal.App. 634, 266 P. 552, plaintiff's land suffered flood damage from a canal constructed by the United States Government for which she sued the city. The trial court sustained the city's demurrer without leave to amend; in affirming the ensuing judgment of dismissal the court said, ‘. . . If she is entitled to any relief, plaintiff must secure if from the constructor of the canal, the United States of America. . . . The United States is the only party that has the power to remove the dam and levee which it has constructed upon the right of way granted to it by [the city of Stockton and] the state of California. If any nuisance exists because of the maintenance and use of the same, it is not one that lies within the jurisdiction of the courts of the state of California to ascertain and abate. Such proceeding, if at all permissible, is one which must be presented in some court of the United States wherein plaintiff and the United States of America would be the parties plaintiff and defendant.’ (P. 639, 266 P. at p. 554).

The judgment is reversed.

FOOTNOTES

1.  In this respect plaintiff, who is an attorney and who appears to have authored the respondent's brief says therein: ‘. . . had this obstruction to navigation been marked with visible and audible aids to navigation, plaintiff would have been put on his guard by reason of the light or sound signals. . . .’

2.  ‘That the plaintiff in approaching the area where the contact occurred, had available for his use charts and publications of the United States Coast Geodetic Survey depicting the Santa Monica Bay area and the Los Angeles Alamitos Bay area. Said charts did not depict said sewer pipe involved in this accident as an obstruction to navigation or a menace to navigation. That the defendant, City of Los Angeles, knew or should have known in the exercise of ordinary care that said charts failed to show the true nature of the obstruction, and were negligent in failing to so advise the United States Coast Guard or other appropriate authorities.’

LILLIE, Associate Justice.

WOOD, P. J., and HANSON, J., concur. Hearing granted; TAYLOR, J., sitting in place of SULLIVAN, J., who deemed himself disqualified.