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

Benella MILLIGAN, et al., Plaintiffs and Appellants, v. CITY OF LAGUNA BEACH, Defendant and Respondent.

Civ. 26056.

Decided: May 20, 1982

Hufstedler, Miller, Carlson & Beardsley and Frederick B. Sainick, Los Angeles, for plaintiffs and appellants. Kinkle, Rodiger & Spriggs and A. J. Pyka, Santa Ana, for defendant and respondent.

Government Code section 831.2 provides:  “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”  (All further statutory references are to the Government Code.)   The question in this appeal by plaintiffs is whether the scope of the statute extends to immunize the governmental entity, here the defendant, City of Laguna Beach (the City), from claims brought by non-users of the City's land for damages incurred on adjacent private property arising from the City's negligent maintenance of a dangerous condition on its property.   Because we have concluded the legislative purpose underlying section 831.2 requires a restrictive interpretation limiting application of the statute to only users of the public land, we reverse the judgment in favor of the City.

In the predawn hours of February 10, 1978, a driving rain and wind storm caused nine large eucalyptus trees to topple on the house owned and occupied by plaintiffs, 81-year-old Benella Milligan and her 63-year-old daughter, Evelyn Crockett.   The trees had been part of a 50 to 80-year-old adjacent grove containing at least 33 eucalyptus trees on land owned by the City.   Milligan and Crockett sued the City for damages to real and personal property and for emotional distress arising from the City's negligent maintenance of the trees in a dangerous condition.   In order to determine whether section 831.2 barred plaintiffs' claim, the parties stipulated to the relevant facts and agreed the court, sitting without a jury, could decide that issue.   There is no dispute that at the time of the incident in question, the plaintiffs were not using city property and were on private land in the residential neighborhood located adjacent to and east of the City property.   The court ruled the City was immune under section 831.2 and entered judgment accordingly.   This appeal followed.1

 We recognize the fundamental principle of statutory interpretation requires us to first ascertain the intent of the Legislature in order to effectuate the purpose of the law.  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   Unfortunately, here the terse, one sentence provision does not illuminate the narrow issue before us.   We are permitted, however, to look beyond the words of the statute, and explore further in order to ascertain whether clues to the legislative intent may be found in the legislative history or in public policy.  (See English v. County of Alameda (1977) 70 Cal.App.3d 226, 233–234, 138 Cal.Rptr. 634.)   In searching for these clues, the California Supreme Court has channelled our investigative talents since we are governed by the following:

“In Muskopf [55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457], we abrogated the common law rule of governmental immunity, observing that ‘when there is negligence, the rule is liability, immunity is the exception.’  [Citation.]  Our decisions since the adoption of the Tort Claims Act of 1963 (§§ 810–996.6) have adhered to this basic axiom of tort law.   Thus, we have pointed out that ‘courts should not casually decree governmental immunity ․’ [citation], and that ‘[u]nless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’  [Citation.]  (Italics added.)”  (Baldwin v. State of California (1972) 6 Cal.3d 424, 435–436, 99 Cal.Rptr. 145, 491 P.2d 1121.)

Considered in light of the foregoing, the following legislative committee comment to section 831.2 is helpful:

“This section provides an absolute immunity from liability for injuries resulting from a natural condition of any unimproved public property.   Thus, for example, under this section and Section 831.4, the State has an absolute immunity from liability for injuries resulting from natural conditions of a state park area where the only improvements are recreational access roads (as defined in Section 831.4) and hiking, riding, fishing and hunting trails.   [¶] ․ It is desirable to permit the members of the public to use public property in its natural condition and to provide trails for hikers and riders and roads for campers into the primitive regions of the State.   But the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would probably cause many public entities to close such areas to public use.   In view of the limited funds available for the acquisition and improvement of property for recreational purposes, it is not unreasonable to expect persons who voluntarily use unimproved public property in its natural condition to assume the risk of injuries arising therefrom as a part of the price to be paid for benefits received.”  (See legis. committee com., West's Annotated Gov.Code, § 831.2 (1980 ed.) p. 293, italics added.)

 Thus, armed with the mandate from our Supreme Court and a common sense reading of the legislative comment, it would appear simple enough to interpret section 831.2 as not applying to non-users of the public land.   In rejecting this peremptory conclusion, the City directs us to the following pertinent legislative history.

When the statute was first introduced on January 10, 1963, as part of Senate Bill No. 42, it applied to “any natural lake, stream, river or beach” (italics added), and then only if the plaintiff “was not using the property for a purpose for which the public entity intended the property to be used.”   Through later amendments, the condition regarding intended use was dropped and the statute now applies to “any unimproved public property.”   The City says that had the Legislature intended the immunity to be restricted to some underlying use of the land, it would have left in some language to that effect in the statute.   It explains that in deleting the word “use” we must conclude the Legislature intended that “use” of the public land was not a required condition before applying the statute.

Although there is some merit to the City's argument, we believe there is another reasonable interpretation of the deletions more in keeping with the policy considerations which we must follow.   The deletion of the clause restricting the immunity to unintended uses of the property can reasonably be understood as an intent to extend the immunity to any use of the property, however minimal, but nevertheless requiring some use.   This interpretation is supported by the legislative committee comment, read in its entirety.   While the comment indicates concern for the expense of making property in a natural condition safe, the issue is discussed in terms of use.   Support for this view is found, for example, in the following statements:  “It is desirable to permit the members of the public to use public property in its natural condition,” and “it is not unreasonable to expect persons who voluntarily use unimproved public property ․”  (Italics added.)   Indeed, the major justification for deviating from the general rule of compensating injured parties for negligence by the government is that people who use the property “assume the risk of injuries arising therefrom as part of the price to be paid for benefits received.”  (Italics added.)  (See legis. committee com., West's Annotated Gov.Code, supra, § 831.2.)

Thus examined in the light of the rationale underlying the enactment of section 831.2, where there is no benefit received from use, there can be no assumption of that risk with its resultant loss of the non-user's right to sue for damages.

We concede that our restrictive interpretation of section 831.2 may have some economic effect upon the public entity for now it will have the legal obligation of maintaining its property in a safe condition for non-users of that property.   While recognizing this supports the City's argument favoring immunity, we must nevertheless give priority to the policy considerations previously expressed, holding that the anticipated financial burden upon the public entity cannot, in the absence of clear legislative fiat, outweigh the plaintiffs' entitlement to their day in court.2


Judgment reversed.   Each party to bear its own costs on appeal.


1.   Although some will undoubtedly say we have unnecessarily placed ourselves out on a limb by dealing solely with the interpretation of section 831.2, we disagree.   In our view, it is always healthy if judicial digging can painlessly reach the root of the problem.   Accordingly, we make no effort to decide this case on the basis that eucalyptus trees are not a natural condition (see Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 364–365, 178 Cal.Rptr. 783, 636 P.2d 783;  Coates v. Chinn (1958) 51 Cal.2d 304, 308, 332 P.2d 289, disapproved in Sprecher on other grounds;  Rest., 2d Torts, § 366, com. 6. and § 840, com. a.) or on the further ground that the inadequate water supply for the trees resulting from surrounding artificial waterways, made it impossible to determine as a matter of law that the trees were in a natural condition.  (See Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221, 226–227, 123 Cal.Rptr. 338.)   We also do not dwell on the effect, if any, on this case of Sprecher v. Adamson, supra, in which the California Supreme Court eliminated the distinction between artificial and natural conditions in determining liability to a possessor of land for harm caused by the natural conditions of his land to persons outside his premises.

2.   One criticism of our holding which will undoubtedly come quickly to mind is the apparent unfairness of its application in a variety of factual circumstances.   For example, something appears amiss when one thinks of the inconsistent result when two persons, one on private land, the other on public land a few feet away, are identically injured at the same time by the branches of a natural falling tree, and only one of those persons may bring suit against the governmental entity.   The line we have drawn, however, excluding non-users of the public property is consistent with the judicial function which necessarily requires the setting of limits in various contexts.   Here, the bright line we have drawn coincident with the physical boundary of the land is tied to the rationale of use and those users on the public land are in a different legal category than non-users on the private land.   Thus, we believe there is more to this case than the way the tree crumbles.   We acknowledge further that some may also say we have seen the trees, but not the forest.   In order to avoid branching out further, however, we do not address the question whether one can be a user of public property without being physically present on the property.

WEINER, Acting Presiding Justice.

WORK and CAZARES,* JJ., concur.

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