HAYES v. STATE (1973)

Plaintiffs appeal from the judgment of the trial court which sustained defendants' general and special demurrers to their complaint without leave to amend¹ on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Initially, we cote that our examination of the instant complaint is guided by the long settled rules for determining its sufficiency against a demurrer. We treat the demurrer as admitting all material facts properly pleaded, but not the contentions, deductions, or conclusions of fact or law. We also consider matters which may be judicially noticed. (Serrano v. Priest, 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)

The allegations of the complaint which we must assume to be true for the purposes of ruling upon the demurrer may be briefly summarized as follows: Plaintiffs consist of two families, the Hayes and the Dolans. Plaintiff minor Thomas Martin Hayes and his family seek recovery for personal injuries and expenses incurred as a result of a beating Hayes² received while on the beach-front property of respondents. Plaintiffs Dolan, the natural father and mother of decedent Thomas Victor Dolan, seek recovery for the wrongful death of Dolan caused by the beating he received while on the beach-front property of respondents.

On or about the evening of July 4, 1970, Hayes and Dolan entered the beach-front property located within the confines of the University of California Santa Barbara campus and remained there after dark. While they were on the beach, they were assaulted and beaten by a person or persons unknown, and as a result Hayes sustained severe personal injuries, and Dolan died.

Plaintiffs alleged that the beach was owned, maintained, and supervised by respondents, and that persons entering the beach did so with the implied and express permission and encouragement of respondents;³ that the invitation to enter the beach area extended to the hours of darkness; and that respondents ‘did create and permit’ a dangerous condition to ‘come into existence and be created on the above described beach property in that the defendants, and each of them, knew, or should have known in the exercise of ordinary care that in addition to members of the general public that were expressly and/or impliedly invited to use the beach front property during the hours of darkness, as aforesaid, other highly undesirable people frequently used and frequented the above-described beach area during the hours of darkness and that serious and dangerous and harmful crimes had been committed in said area prior to the date in question; that the defendants, and each of them, with the above knowledge, either actual or implied, did fail to properly and adequately protect, patrol, police, govern or supervise the above-described area during the hours of darkness to prevent injury and damage to members of the general public occupying said property.’ Plaintiffs sought relief on the theory that respondents' activities with respect to this beach-front property created a dangerous condition, as defined in Government Code section 830(a).

Respondents' general demurrer to the complaint was premised upon two contentions pertinent to the issues: (1) that Government Code section 845 affords governmental entities absolute immunity for their failure to provide adequate police protection; and (2) that the beach (the physical condition of the property) was not a dangerous condition as defined by the Government Code.⁴

We have examined each point in detail and have concluded that the trial judge erred in that plaintiffs may have been able to state a valid cause of action had they been afforded leave to amend their complaint. With respect to the trial judge's ruling that section 845 immunized respondents for their failure to provide adequate police protection, we agree. Our disagreement centers solely upon his refusal to allow plaintiffs leave to amend and his holding that the respondents' beach-front property, under the circumstances alleged, as a matter of law, did not constitute a ‘dangerous condition.’

Government Code section 845 provides: ‘Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.’ The important issue thus presented is whether the immunity conferred by this statute is controlling in this case. As to defendants State of California, University of California at Santa Barbara, and the Regents of the University of California (hereinafter termed ‘State’), we believe that the answer is no.⁵

In the instant circumstances, State attempts to shield itself from liability for any negligence behind a grant of immunity provided by the Legislature for the failure to provide adequate law enforcement services. However, as stated in Ramos v. County of Madera, 4 Cal.3d 685, 692, 94 Cal.Rptr. 421, 426, 484 P.2d 93, 98.

‘We must begin with the well-settled notion that in governmental tort cases ‘the rule is liability, immunity is the exception.’ [Citation.] ‘[I]t would be unjust in some circumstances to require an individual injured by official wrongdoing to bear the burden of his loss rather than distribute it throughout the community.’ [Citation.] ‘Accordingly, courts should not casually decree governmental immunity; . . ..’ [Citation.] Unless 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.'

Were plaintiffs solely limited to predicating liability upon the mere failure of State to provide police protection to safeguard the security of persons using respondents' beach-front property, we would be compelled to hold that section 845 immunized respondents from liability. A public entity cannot be held liable for injuries sustained solely on the theory that the injuries were the proximate result of the failure of its law enforcement officials to provide adequate police protection. (Susman v. City of Los Angeles, 269 Cal.App.2d 803, 813, 817, 75 Cal.Rptr. 240.) This is true even when the absence of police protection permits the existence of a ‘dangerous condition’ as defined in Government Code section 830(a).⁶ The determination of whether and to what degree police services are desirable in a community has been deemed by the Legislature to be a political determination which has been committed to the policy making officials of government. As such, judicial review of those determinations would be inappropriate.

However, plaintiffs may be able to state a cause of action premised upon State's failure to adequately warn prospective users of that beach-front property of the potentially dangerous condition which was known by State to exist there after dark, due, in part, to the absence of adequate police protection⁷ and the serious and harmful crimes which had been committed in that area prior to the date of the incidents here. A cause of action premised upon State's failure to reasonably warn persons lawfully on State's property—they being present by invitation, express or implied—that a known potential danger existed, creating a dangerous condition, is governed solely by those provisions of the Government Code (§§ 830–840.6) dealing with particular areas of governmental activities classified as dangerous conditions of public property.⁸

State's reliance upon County of Sacramento v. Superior Court, 8 Cal.3d 479, 105 Cal.Rptr. 374, 503 P.2d 1382 is misplaced. In that case, plaintiffs sought to hold the County of Sacramento liable for injuries caused by an escaping prisoner, alleging that the county ‘failed to lock or secure the doors to the jail and that ‘the failure to lock or secure the doors and fences of said property constituted a dangerous and defective condition thereof,’ as a proximate result of which the inmates were able to escape, and their decedent was killed.' The court held (at p. 485, 105 Cal.Rptr. at p. 378, 503 P.2d at p. 1386) that even granting that the failure to secure the doors properly constituted a dangerous condition, the specific provisions of Government Code section 845.8⁹ covered a public entity's liability for injuries caused by an escaping prisoner, and that provision, being specific, controlled over the general provisions of section 835. Upon proper pleading, in the instant case, the question of State's failure to provide police protection is only tangentially related to the issue of its liability for maintaining—without warning—a dangerous condition on public property. Unlike the decision in the County of Sacramento case, where plaintiffs sought to hold the public entity directly liable for the failure to take adequate measures to ensure the confinement of prisoners, the instant case predicates liability upon State's failure to apprise others of the known and foreseeable risk existent because of inadequate police protection from known criminal activity. Thus, the failure to provide adequate police protection may be an operative factor in the maintenance of the condition upon which plaintiffs rely. Nevertheless, liability is not predicated upon State's failure to provide such protection, but rather upon State's failure to warn State's invitees that there is a recognized existent, dangerous condition.

Since we perceive no conflict between section 835 and section 845 with respect to the contentions which may be properly raised by amendment to the complaint, we turn to the question of whether the ‘condition of’ State's beach-front property on the evening that Hayes and Dolan were assaulted and beaten was such as to constitute a ‘dangerous condition’ within the meaning of section 830(a).

State contends that a dangerous condition cannot be said to exist unless the property itself is somehow dangerous or defective and itself caused the injury. This contention is not supported under the statute, case law, or commentary.

Section 830(a) provides: “Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' State tenaciously grasps the term ‘condition of property’ and urges that this phrase necessitates the finding that it must be the property itself which causes the injury in order for the liability provisions of section 835 to become applicable. However, the mere presence of the phrase ‘condition of property’ does not dictate that the Legislature intended the scope of liability to be as narrow as State urges. (Quelvog v. City of Long Beach, 6 Cal.App.3d 584, 86 Cal.Rptr. 127.)¹⁰ The Law Revision Commission Comment to section 830(a) states:¹¹

‘A ‘dangerous condition’ is defined in terms of ‘foreseeable use.’ This does not change the pre-existing law relating to cities, counties and school districts. These entities are liable under Government Code [former] Section 53051 for maintaining property in a condition that creates a hazard to foreseeable users even if those persons use the property for a purpose for which it is not designed to be used or for a purpose that is illegal. Acosta v. County of Los Angeles, 55 Cal.2d 208, 14 Cal.Rptr. 433, 363 P.2d 473 (1961); Torkelson v. City of Redlands, 198 Cal.App.2d 354, 17 Cal.Rptr. 899 (1961).

‘The definition of ‘dangerous condition’ is quite broad because it incorporates the broad definition of ‘injury’ contained in Section 810.8. Thus, the danger involved need not be a danger of physical injury; it may be a danger of injury to intangible interests so long as the injury is of a kind that the law would redress if it were inflicted by a private person. For example, liability for an offensive odor may be imposed if the requirements of this chapter are satisfied.'

The statute, then, is not restricted to the inherent quality of the property itself, but rather focuses on the impact of the condition upon the environment or users. It is the effect which determines whether a dangerous condition exists, not the inner nature of the property. (Pfeifer v. San Joaquin County, 67 Cal.2d 177, 60 Cal.Rptr. 493, 430 P.2d 51; Quelvog v. City of Long Beach, supra; Holmes v. City of Oakland, 260 Cal.App.2d 378, 67 Cal.Rptr. 197; Branzel v. City of Concord, supra; Torkelson v. City of Redwood, 198 Cal.App.2d 354, 17 Cal.Rptr. 899.) Whether a dangerous condition exists can only be determined by examining the total quantum of facts pertinent to a controversy. As stated in Holmes v. City of Oakland, supra (260 Cal.App.2d at 386, 67 Cal.Rptr at 202):

‘The question whether a dangerous condition existed that caused the plaintiff's injury is, as a general rule, one of fact, although it may be determined as a matter of law if reasonable men can draw but one conclusion from the evidence presented. [Citations.] In the instant case we must decide whether it can be concluded from the facts pleaded in the complaint that an unguarded railroad operation on Lowell Street near a grammar school created a substantial risk of injury to children using Lowell Street and exercising what for them would constitute due care. (See Callahan v. City and County of San Francisco, 249 Cal.App.2d 696, 703–704 [57 Cal.Rptr. 639] [hearing den. 5–17–67].) As noted in Callahan, the test is whether the condition created a substantial risk of harm to persons, generally, who would use the public property with due care in a foreseeable manner. (Pp. 702–703 [57 Cal.Rptr. 639]; see also Van Alstyne, California Tort Liability [Cont.Ed.Bar (1964)] p. 195.) Accordingly, in order to prove his case, plaintiff must show ‘that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care.’ (Italics added.) (Law Rev.Com. Comment, § 830; Callahan v. City and County of San Francisco, supra.)'

Applying the foregoing principles to the facts which may be pleadable, we cannot conclude that as a matter of law the property in question did not constitute a dangerous condition. In the instant case, plaintiffs have alleged that State expressly or impliedly encouraged persons to enter State's property and remain there after darkness, and that State was aware that there had been a high incidence of violent crimes on that beach. Furthermore, plaintiffs alleged that the property itself offered no intimation that those using the property ran an undue risk of violent assault. Thus, a person exercising ordinary care for his own safety could, under the facts as alleged by plaintiffs, reasonably believe that no hidden or undue danger presented itself to those who remained on the property after darkness. State's activities in encouraging persons to use the beach without reasonable warning of the known extraordinary attendant dangers constituted a trap for the unwary. The true ‘condition’ of the beach-property was thus concealed from potential users by the implied representations by State that there was no undue danger attendant to its use, and the encouragement that persons use State's property in the absence of any warning. While section 830(a) makes no mention of a ‘trap,’ we see nothing in the statute which would preclude a ‘trap’ from being considered as a dangerous condition. Pitfalls and traps were clearly ‘conditions' within the now repealed Public Liability Act. (Ulwelling v. Crown Coach Corp., 206 Cal.App.2d 96, 143, 23 Cal.Rptr. 631; Castro v. Sutter Creek Union High School District, 25 Cal.App.2d 372, 77 P.2d 509.) We hold that the existence of a ‘trap’ such as may be alleged here can constitute a dangerous condition as defined by section 830(a).

While we find that plaintiffs' complaint may be amended to state facts sufficient for a finding that the property in question constituted a dangerous condition, this does not mean that every assault which takes place on public property raises a prima facie case for the existence of a dangerous condition. The determining factors crucial to our decision are: (1) the actions of State in actively encouraging persons to remain on State's beach property after darkness, which (2) gave to persons using it the reasonable expectation that it was not unduly dangerous, when in fact (3) State knew of the high incidence of violent assaults which had occurred in the area yet (4) made no effort to communicate this knowledge to potential users (invitees).

Assuming as we must, in light of the demurrers, the truth of the material allegations of plaintiffs' complaint, we are satisfied that plaintiffs may be able to allege sufficient facts showing the existence of a dangerous condition as defined by section 830(a).

State finally contends that it is contrary to public policy to hold owners of public beaches, parks and recreational areas liable for torts of individual third persons. In essence, State contends that (1) public entities owe a duty to the public to keep at least some of their lands, buildings and grounds open to the public at large and thus may not ‘lock the gate’ to keep out ‘undesirable’ people; and (2) in any case, State is unable to determine who the ‘undesirable’ persons are so as to prevent their entrance onto public lands. In support of the first contention, State relies upon the decision in In re Cox, 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992, which State contends holds that one who opens his land to the public may not exclude ‘undesirables.’ This reliance upon Cox is misplaced. Cox stands for the proposition that one may not arbitrarily exclude a party from an establishment open to the general public. It does not stand for the proposition that one may never exclude a person from premises open to the public. As stated in Cox (at p. 217, 90 Cal.Rptr. at p. 31, 474 P.2d at p. 999): ‘Clearly, an entrepreneur need not tolerate customers who damage property, injure others, or otherwise disrupt his business.’ In any event, this contention and State's second contention (that to exclude ‘undesirables' is impossible because it is not known who they are) are irrelevant to the theory of liability heretofore discussed. The theory of liability is not predicated upon State's failure to exclude anyone, or the failure to supervise those who do come on the premises in question. The cause of action may be premised upon an allegation that liability exists because State failed to give reasonable warning to invitee-users of the property of the dangers known to exist (in the absence of supervision and/or policing of the area) in conjunction with State's implied representation of no undue danger. The imposition of liability upon public entities for their failure to give reasonable warning to others of known dangerous conditions does not run contra to the strong public policy of maintaining and increasing recreational space, as evidenced by the recent decisions in Gion v. City of Santa Cruz and Dietz v. King, 2 Cal.3d 29, 42–43, 84 Cal.Rptr. 162, 465 P.2d 50. No public policy is furthered by encouraging access to property which promises to provide a foreseeable risk of injury to intended users. This is particularly true where, as here, the ability to ameliorate the risks posed is easily accomplished by the simple posting of warnings over a localized area. The securing of additional recreational areas is clearly in the public interest, but this benefit fails when these areas are maintained in a ‘condition’ creating a known extreme and unexpected danger without warning to the public.

The rationale of Johnson v. State of California, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 is supportive of the conclusions herein reached. In Johnson, the court overturned a summary judgment in favor of the state and against the plaintiff, who had undertaken to provide a foster home for a ward of the Youth Authority, and was subsequently assaulted and injured by the ward. The court viewed the record as supporting the fact ‘that the youth had demonstrated dangerous propensities, that the state's agents knew or should have known of the existence of these dangers, and that they nevertheless failed to give adequate warning to the plaintiff.’ (69 Cal.2d at 785, fn. 1, 73 Cal.Rptr. at 243, 447 P.2d at 355.) In Johnson, it was determined that negligent failure to warn is not protected by governmental immunity, even where the danger is initially predicated upon a governmental activity which is subject to the immunity provisions found in the Government Code. The court concluded:

‘In sum, the instant fact situation presents no reason for sovereign immunity; not only does the officer's decision as to warnings fail to rise to the level of governmental decisions calling for judicial restraint, but also the state failed to prove that the officer consciously considered the risks to plaintiff and determined that other policies justified them. . . . In fact, to the contrary, this is a classic case for the imposition of tort liability. Defendant failed to warn plaintiff of a foreseeable, latent danger, and this failure led to plaintiff's injury from precisely the expected source; courts encounter this type of allegation daily and are well suited to resolve its validity under traditional tort doctrine.’ (Emphasis added.) (69 Cal.2d at 797, 73 Cal.Rptr. at 251, 447 P.2d at 363.)

The only difference between the instant case and Johnson is that in Johnson the state knew the identity of the specific individual who was threatened and the specific individual (third party) who was creating that threat. In the instant case, the class of persons (invitees) to be threatened was known to State, as was the fact that there existed persons who threatened that class with harm. State did not know exactly which individuals would be injured, nor who would injure them; however, the duty to warn was not dependent upon being able to ascertain the exact person or persons who would be involved. We see no reason why the knowledge of the danger and the knowledge of the attendant risk should not have been communicated to invitees in a manner reasonably calculated to inform them of the dangers attendant upon the use of the premises after dark.

As drafted, plaintiffs' complaint falls short of stating a cause of action premised upon State's failure to reasonably give warning of the existence of a dangerous condition to potential users. This does not mean that reasonable opportunity to adequately amend should be denied them. Where the complaint is defective, great liberality should be exercised in permitting a plaintiff to amend his complaint to state a cause of action. (Scott v. City of Indian Wells, 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492 P.2d 1137.) This is particularly true where there is a reasonable possibility that the defect can be cured by amendment. Furthermore, as stated recently by our Supreme Court in Barquis v. Merchants Collection Assn., 7 Cal.3d 94, 193, 101 Cal.Rptr. 745, 751, 496 P.2d 817, ‘we are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have, of course, long since departed from holding a plaintiff strictly to the ‘from of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.' In the instant case, plaintiffs did describe the legal foundation for an amendment which would state a cause of action in conformity with the views herein expressed. In arguing against the demurrer, counsel for plaintiffs stated:

‘Counsel talks about Haley Street. I am not from this area so I don't know about Haley Street. He states that it is common knowledge that this street is dangerous. It was not common knowledge that the beach area of this case is dangerous. I would agree with him in that I don't think that you are going to extend [section] 853 to situations of where it is common knowledge that a danger exists. And if that was such, I still think that it would still go to the courts. And that may be a valid defense of assumption of the risk, or something like this would be used. But in our case, it was not common knowledge that the beach was dangerous. Counsel states that it was an immense task to protect the area. How are we going to protect this beach area from such a condition? It is absurd. It would be very simple again, I am bringing up facts and, really, facts are not the subject of the demurrer, but I am forced to bring them up in this case. Just taking the general posting of signs that are warning the people that it is dangerous to spend the night on the beach—or as in many areas, they have outlawed spending the nights on the beach because of attacks like this. We have had attacks occurring here in Santa Barbara prior to this which put them on notice of the attacks and they did not warn people of these attacks and of the dangerous condition that existed. And the condition was not common knowledge. They invited the people to come onto the land and they encouraged them and they did not inform them of a condition. There is no assumption of the risk here. They did not know the condition.

‘And it would have been very easy for defendants to have set up some warning signs. As far as a valid cause of action, the government has limited their liability and they are immune from various negligent acts and they have set forth their liability in the form of statutes. Section 835 deals with the dangerous condition of property on a public entity And it creates a grounds [sic] upon which a person injured as a result of the dangerous public entity.’ (Emphasis added.)

We conclude that plaintiffs may well be able to allege sufficient facts that would require a warning by State to the ‘invitees' as to the dangers attendant to the use of the property, a negligent failure to perform that duty, and an absence of any specific or general immunity from liability on the part of State for injuries resulting from that negligence.

We are of the opinion that the trial judge improperly denied plaintiffs leave to amend their complaint. (Scott v. City of Indian Wells, supra, 6 Cal.3d 541, 549–550, 99 Cal.Rptr. 745, 496 P.2d 817; Holmes v. City of Oakland, supra, 260 Cal.App.2d 378, 382–383, 67 Cal.Rptr. 197; 3 Witkin, Calif. Proc.2d, Pleading, § 844, p. 2449.)

As to defendants City of Santa Barbara and County of Santa Barbara, the judgment is affirmed; as to defendants State of California, University of California at Santa Barbara, and The Regents of the University of California, the judgment is reversed. Costs to the prevailing parties.

FOOTNOTES

1.  The trial judge's reasons for not granting plaintiffs leave to amend were: ‘I don't think that the Plaintiffs can state a cause of action on this situation when involved with the tortious conduct of third persons. And certainly there is nothing in the Complaint that indicates that the defendants, or any of them, encouraged the assaults on the beach . . . [¶] The Court will sustain all the general demurrers and special demurrers and I see no point in granting leave to amend. I think if there is going to be a change in the existing law you might as well get it from the Appellate Court, because you could amend and amend and it would be the same.’

2.  As both of the victims' first names are Thomas, for the sake of brevity plaintiff-minor Thomas Martin Hayes will at times hereinafter be referred to as Hayes, and the decedent-victim Thomas Victor Dolan, as Dolan.

3.  The complaint alleged ‘That at all times mentioned herein, the defendants, and each of them, did allow, permit and encourage members of the general public to come onto the above-described beach area, and further allowed, permitted and encouraged said members of the general public to remain on the above-described beach areas during periods of darkness.’

4.  For an analysis of the general immunity statutes (Gov.Code, § 815 et seq.), see Bradford v. State of California, Cal.App., 111 Cal.Rptr. 852 (filed this date).

5.  Since defendants County of Santa Barbara and City of Santa Barbara are conceded to have no interest in the property, their alleged liability rests solely upon a failure to police the area. The dismissal as to them is correct.

6.  Van Alstyne, 5 Law Revision Commission, Sovereign Immunity Study, pp. 449–450:‘. . . On policy grounds, it can be persuasively contended that a public entity should not be liable for damages when its constituted law enforcement officers, acting reasonably and within their discretion, decide to ignore a request from a citizen for special police protection above and beyond that extended to the general public, or determine that no additional police are needed or can be spared . . . If every request of this type—justified or unjustified, rational or irrational—were required under threat of tort liability to be honored, even to the extent of investigating the extent to which justification exists, the routine handling of police business might well be severely handicapped. The decision to act or not, in such cases, must necessarily be made in the light of known circumstances and under the conditions of personnel dispersion, previous assignments, emergency calls, and other competing demands for police service which then exist.’

7.  This dichotomy between attempts to fasten liability upon public entities for their active failure to abate a dangerous condition and their failure to warn of known concealed dangers was recognized by the Law Revision Commission in its recommendations relating to sovereign immunity prepared for the Legislature. (4 C.L.R.C. 807 et seq. (1963).) In discussing the absolute immunity to be afforded public entities with respect to natural conditions of public lands, trails, and bodies of water (Gov.Code, §§ 831.2 and 831.4), the Commission stated (at p. 824):‘There is much public property in the State over which public entities exercise little or no supervision. They permit the public to use bodies of water and water courses for recreational activities, and to use remote trails and roads for hunting, fishing, riding and camping. It is desirable to preserve these uses of public property, but such uses would likely be curtailed if the public entities owning such property were required by law to make extensive inspections of the property for the purpose of discovering potential hazards. Hence, public entities should be immune from liability for conditions of such property unless they have actual knowledge of concealed hazards, not likely to be apparent to the users of the property, and fail to take reasonable steps to warn of the hazards.’ (Emphasis added.) See also: Cameron v. State of California, 7 Cal.3d 318, 329, 102 Cal.Rptr. 305, 312, 497 P.2d 777, 784 (‘[W]here the state is immune from liability for injuries caused by a dangerous condition of its property because the dangerous condition was created as a result of a plan or design which conferred immunity under section 830.6, the state may nevertheless be liable for failure to warn of this dangerous condition where the failure to warn is negligent and is an independent, separate, concurring cause of the accident’ (italics added)) and Baldwin v. State of California, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121.

8.  The Legislative Committee Comment—Senate expressly states that section 835 (conditions of liability) ‘is not subject to the discretionary immunity that public entities derive from Section 815.2, for this chapter itself declares the limits of a public entity's discretion in dealing with dangerous conditions of its property.’

9.  Gov.Code, § 845.8:‘Neither a public entity nor a public employee is liable for:‘(a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release.‘(b) Any injury caused by:‘(1) An escaping or escaped prisoner;‘(2) An escaping or escaped arrested person; or‘(3) A person resisting arrest.’

10.  See also Branzel v. City of Concord, 247 Cal.App.2d 68, 72, 55 Cal.Rptr. 167; Bauman v. City and County of San Francisco, 42 Cal.App.2d 144, 153, 108 P.2d 989, 995: ‘[A] dangerous or defective condition can be created by the use or general plan of operation of government operated property, as well as by a structural defect. [Citation.]’

11.  Section 830(a) was proposed and drafted by the Law Revision Commission. The Commission accompanied its proposal with a commentary. The proposed statute, with the commentary, was enacted by the Legislature without amendment. Under these circumstances the Commission's interpretation of the statute is entitled to considerable weight in construing the enactment. (Van Arsdale v. Hollinger, 68 Cal.2d 245, 249–250, 66 Cal.Rptr. 20, 437 P.2d 508.)

STEPHENS, Associate Justice.

KAUS, P. J., and HASTINGS, J., concur.