Filed 7/24/13 Wilkins v. State of California CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



TERRIE WILKINS,

         Plaintiff and Appellant,                                        E054540

v.                                                                       (Super.Ct.No. CIVVS802696)

STATE OF CALIFORNIA,                                                     OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Affirmed.

         Law Offices of John R. Blanchard and John R. Blanchard for Plaintiff and

Appellant.

         Kamala D. Harris, Attorney General, Kathleen Kenealy, Chief Assistant Attorney

General, Steven M. Gevercer and Joel A. Davis, Deputy Attorneys General, for

Defendant and Respondent.




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       This is a wrongful death action arising from the tragic drowning of plaintiff and

appellant Terrie Wilkins’s six-year-old son at Lake Silverwood. On June 30, 2011, the

trial court granted the motion for summary judgment of defendant and respondent State

of California (the State). Judgment was entered accordingly, and Wilkins appeals.

                     FACTUAL AND PROCEDURAL HISTORY

       A.     DISPUTED AND UNDISPUTED FACTS

       The undisputed facts of the case are as follows: “Plaintiff Terri Wilkins

[(Plaintiff)] is the mother of six year old son Jahdyn Duncan [(Jahdyn)] who drowned on

June 16, 2007 at the Sawpit Swim Beach area of Lake Silverwood, a reservoir in the Lake

Silverwood State Recreation Area [(Lake Silverwood Park)]. [¶] Plaintiff had been

setting up a picnic and barbecue for family and friends at a Lake Silverwood Park camp

site when she realized [Jahdyn] was no longer in the camp site area. Plaintiff left the

camp site to search for her son and then saw him floating face down in the water at the

reservoir’s designated swimming area, Sawpit Swim Beach. [¶] . . . [¶] Lifeguard

Ashley Hays [(Hays)] did not know [Jahdyn] was in need of assistance prior to seeing

him floating face down in the water. [¶] . . . [¶] [Hays] did not speak to plaintiff or

[Jahdyn] before [Jahdyn] entered the water. [¶] [Hays] heard no promise made to

plaintiff or [Jahdyn] that any lifeguard, state employee, or anyone else would supervise,

assist or otherwise protect [Jahdyn]. [¶] [Hays] did not hear any lifeguard, State

employee, or anyone else speak to plaintiff or [Jahdyn] [and make any] promise to the

child, child’s mother before [Jahdyn] entered the water.”




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       Disputed facts included plaintiff’s contention, based on Hays’s declaration, that

Hays was not aware of the emergency until someone yelled that there was a boy in the

water. She then recovered the boy’s body and attempted to revive him. The State

asserted Hays made no promise to Jahdyn to supervise, assist or otherwise protect

Jahdyn. Plaintiff disputed the assertion and claimed Hays’s actions “conveyed to all

patrons in the area that . . . Hays was ‘on duty’ and prepared to render assistance to any

swimmer in need.”

       The parties also disagreed on (1) whether Lake Silverwood reservoir was a

dangerous condition of public property at the time of the accident; (2) whether there had

been modifications to create the beach before the reservoir filled in 1972, or

subsequently; and (3) whether plaintiff’s “premise liability” claims are barred because

they were not presented in plaintiff’s Tort Claims Act claim form.

       B.      THE MOTION FOR SUMMARY JUDGMENT

       In its statement of undisputed material facts, the State framed four issues: (1) The

State alleged that the first cause of action for negligence causing wrongful death was

defective because the State had no statutory responsibility to protect swimmers, and the

lifeguard owed no relevant duty to protect Jahdyn; (2) the swimming beach at Silverwood

Lake was not a dangerous condition of public property; (3) there is no cause of action for

premise liability because the immunities stated in sections 821.2 and 821.21 apply;1 and




       1   All further statutory references are to the Government Code unless indicated.


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(4) the premises liability cause of action is barred because it was not mentioned in

plaintiff’ claim filed with the Victim Compensation and Government Claims Board.

       The trial court agreed with the State and found the State “met its initial burden of

demonstrating a lack of duty to plaintiff or [Jahdyn], a lack of a dangerous condition of

public property, the action was barred by government immunity, and plaintiff had failed

to produce admissible evidence to show the existence of a triable issue of material fact.”

It therefore rendered judgment for the State.

                                       DISCUSSION

       “We review a grant of summary judgment de novo; we must decide independently

whether the facts not subject to triable dispute warrant judgment for the moving party as

a matter of law. [Citations.]” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)

       Under the Tort Claims Act, it is generally true that a public entity is not

derivatively liable for the act or omission of a public employee unless there is a statutory

basis for liability. (§ 815, subd. (a).) The public entity can be directly liable for injury

caused by a dangerous condition of public property under section 835.

       Plaintiff advances two theories of liability based on section 835, subdivision (a).

That section states: “Except as provided by statute, a public entity is liable for injury

caused by a dangerous condition of its property if the plaintiff establishes that the

property was in a dangerous condition at the time of the injury, that the injury was

proximately caused by the dangerous condition, that the dangerous condition created a

reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶]

(a) A negligent or wrongful act or omission of an employee of the public entity within the


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scope of his employment created the dangerous condition; or [¶] (b) The public entity

had actual or constructive notice of the dangerous condition under Section 835.2 a

sufficient time prior to the injury to have taken measures to protect against the dangerous

condition.”

       First, plaintiff contends that the lifeguard’s negligence created a dangerous

condition of public property. Second, plaintiff contends that the beach itself was a

dangerous condition of public property.

       A.     THE TRIAL COURT’S FINDING THAT THE STATE OWED NO

              DUTY TO PLAINTIFF OR JAHDYN

       The State attacks plaintiff’s first theory by contending that the lifeguard was not

negligent because the lifeguard owed no duty of care to plaintiff or Jahdyn.

       The state first argues that the existence of a duty of care is a matter of law.

(Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750.) It then argues, “a person,

including a police officer, owes no duty to protect or control the conduct of another.

Such a duty may arise only if a ‘special relationship’ exists between the actor and the

other person, which gives the other person the right to protection. (Camp v. State of

California (2010) 184 Cal.App.4th 967, 975-979; Davidson v. City of Westminster (1982)

32 Cal.3d 197, 203; Williams v. State of California (1983) 34 Cal.3d 18, 23-24

[(Williams)].)”

       In Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, our Supreme Court

held, “‘[a]s a general rule, one owes no duty to control the conduct of another, nor to

warn those endangered by such conduct.’ [Citation.] A duty to control the conduct of


                                              5
another or to warn persons endangered by such conduct may arise, however, out of what

is called a ‘special relationship,’ . . . . Such a duty may arise if ‘“(a) a special relation

exists between the actor and the third person which imposes a duty upon the actor to

control the third person’s conduct, or (b) a special relation exists between the actor and

the other which gives the other a right to protection.”’ [Citations.] ‘“This rule derives

from the common law’s distinction between misfeasance and nonfeasance, and its

reluctance to impose liability for the latter.”’ [Citation.]” (Id. at p. 1129.)

       The State also relies on Williams, supra, 34 Cal.3d 18: “Applying the general

principles of law represented in the decisions reviewed above, from McCorkle to Mann,

we conclude that plaintiff has not stated a cause of action in that she fails to establish a

duty of care owed by defendant state. The officers did not create the peril in which

plaintiff found herself; they took no affirmative action which contributed to, increased, or

changed the risk which would have otherwise existed; there is no indication that they

voluntarily assumed any responsibility to protect plaintiff’s prospects for recovery by

civil litigation; and there are no allegations of the requisite factors to a finding of special

relationship, namely detrimental reliance by the plaintiff on the officers’ conduct,

statements made by them which induced a false sense of security and thereby worsened

her position.” (Id. at pp. 27-28, fn. omitted.)

       In response, plaintiff contends that the action “is based on the special relationship

created when the State voluntarily undertook to provide protective services for the

general public, including [Jahdyn].” However, Williams is clear that there is no special

relationship between police and the general public, and that the correct rule is that when


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“the state, through its agents, voluntarily assumes a protective duty toward a certain

member of the public and undertakes action on behalf of that member, thereby inducing

reliance, it is held to the same standard of care as a private person or organization.

[Citation.]” (Williams, supra, 34 Cal.3d at p. 24.)

        Plaintiff responds that Williams and related cases only apply to “‘emergency

rescue personnel’” such as police officers and paramedics, not lifeguards. “There is a

whole different lines [sic] of cases dealing with lifeguards.”

        Plaintiff’s position is untenable. First, it seems obvious that lifeguards, policemen

and paramedics are equally entitled to be called “emergency rescue personnel.” (Zepeda

v. City of Los Angeles (1990) 223 Cal.App.3d 232, 236 [“[T]he City’s paramedics had no

general duty to render aid to plaintiffs’ decedent”].) Like policemen and paramedics,

lifeguards have a general duty to protect members of the public, but there is no special

relationship between a particular lifeguard and a particular swimmer unless there are

additional facts showing the existence of such a relationship. No such facts were alleged

here.

        As our Supreme Court commented in Williams: “One might well question

whether the drowning man is not similarly dependent on the swimmer on shore; it is

settled that there is no legal duty to come to the rescue. [Citations.]” (Williams, supra,

34 Cal.3d at p. 26, fn. 6.)

        More importantly, although plaintiff tells us the law is different for lifeguards, and

thoroughly attempts to distinguish the cases relied on by the State, plaintiff does not cite

cases to support her position. Instead, plaintiff cites Health and Safety Code section


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1797.182, which requires that lifeguards be trained in first aid and cardiopulmonary

resuscitation; Health and Safety Code section 116025, which defines a public swimming

pool; and Health and Safety Code section 116045, which states that lifeguard services

shall be provided, or warning signs posted. Plaintiff also cites a regulation that states

when lifeguard services are provided, the number of lifeguards must be adequate to

maintain continuous surveillance over the bathers. (Cal. Code Regs., tit. 22, § 65539,

subd. (b).)

       In response, the State argues the swimming pool regulations are irrelevant because

they are part of the regulations entitled “‘Public Swimming Pools.’” The State points out

that a separate article deals with state reservoirs open for public recreation. (Health &

Saf. Code, §§ 115825-115850.) We agree and must conclude that allegations of a general

duty are insufficient in the absence of allegations that there was a special relationship

between the lifeguard and plaintiff or Jahdyn.

       Since the existence of a duty is a question of law, the trial court correctly found

that since there was no duty there was no negligence within the meaning of section 835.

Without a finding of negligence, section 835, subdivision (a) is inapplicable and plaintiff

has therefore failed to establish liability under the conditions stated in section 835.

       B.     PLAINTIFF’S CONTENTION THAT THE BEACH ITSELF WAS A

              DANGEROUS CONDITION OF PUBLIC PROPERTY

       Under this heading, plaintiff acknowledges the absolute immunity of the State

under sections 831.2 and 831.21, subdivision (a), but argues those immunities are not

applicable because the reservoir was not in a natural condition.


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       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.”

       Section 831.21, subdivision (a) states: “(a) Public beaches shall be deemed to be

in a natural condition and unimproved notwithstanding the provision or absence of public

safety services such as lifeguards, police or sheriff patrols, medical services, fire

protection services, beach cleanup services, or signs. The provisions of this section shall

apply only to natural conditions of public property and shall not limit any liability or

immunity that may otherwise exist pursuant to this division.”

       The State cites Osgood v. County of Shasta (1975) 50 Cal.App.3d 586. In that

case, after reviewing the legislative history of section 831.2, the court held: “The

foregoing legislative history makes the legislative intent regarding section 831.2

unmistakably clear. The Legislature rejected a limited immunity inapplicable to artificial

lakes in favor of an unconditional immunity applicable to all public lakes, including

Shasta Lake. And it goes without saying that the shoreline of the lake is a natural

condition thereof within the meaning of the section.” (Id. at p. 590.)

       The State cites two other cases holding the immunity applicable in the case of

reservoirs: Eben v. State of California (1982) 130 Cal.App.3d 416, 422 through 424, and

Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 887 through 889.

       In Eben, a water-skier fell and struck a submerged rock near the shoreline of

Millerton Lake. (Eben v. State of California, supra, 130 Cal.App.3d at p. 418.) The

court considered the improvements cited by the plaintiff but found that the absolute


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immunity of section 831.2 applied because “[n]o evidence was adduced to link the

improvements, causally or otherwise, with the accident.” (Eben, at p. 425.)

       Similarly, in Keyes, a swimmer was injured when he struck a submerged object

while swimming and diving in Lexington Reservoir. (Keyes v. Santa Clara Valley Water

Dist., supra, 128 Cal.App.3d at p. 884.) The court held that, to defeat immunity, the

plaintiff must at least allege a “causal nexus between the dangerous condition and either

human conduct or an artificial improvement.” (Id. at p. 888.) Although the immunity of

section 831.2 applied, the plaintiff was given the opportunity to amend his complaint to

allege that an artificial condition caused his injury. (Keys, at p. 890.)

       Here, the State provided the declaration of Ron Krueper (Krueper), the former

park superintendent, to establish that there had been no improvements since the

construction of the reservoir in 1972. He stated that there had not been any modification

to the bottom or floor of the beach since that time. Although the trial court was entitled

to accept Krueper’s declaration as credible, plaintiff spends several paragraphs attacking

it. Plaintiff concludes that the State has not established that the beach and swimming area

were in a natural condition.

       Plaintiff cites Buchanan v. City of Newport Beach (1975) 50 Cal.App.3d 221. In

that case, the city was held liable despite the immunity because the beach had been

artificially constructed. However, there was no such evidence here. Plaintiff failed to

submit any declarations that would have created a material factual issue. Plaintiff relies

on her interrogatory answers, which describe “numerous construction projects in and




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around the lake.” Nevertheless, plaintiff fails to show a causal connection between any

such project and the drowning death of Jahdyn.

       Plaintiff relies on Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882. In

that case, the court held the immunity of section 831.2 was inapplicable because the

complaint “describes a hybrid dangerous condition, partially natural and partially

artificial in character, the result of a combination of a natural defect within the property

and the third party conduct of City. Thus, the dangerous condition here arose from the

existence of a natural dangerous riptide condition, plus City’s voluntarily providing

lifeguard service at Black’s beach (a duty with which it impliedly was not burdened

under § 831.2), and its performing that voluntarily assumed service negligently by failing

to warn of the known, hazardous, natural condition.” (Gonzales, at pp. 885-886.) The

case thus provides some support for plaintiff’s theory that such a “hybrid condition” was

a factual issue under the pleadings here.

       The State responds by arguing that Gonzales was statutorily overruled by the

enactment of section 831.21 in 1987. Subdivision (a) provides: “Public beaches shall be

deemed to be in a natural condition and unimproved notwithstanding the provision or

absence of public safety services such as lifeguards, police or sheriff patrols, medical

services, fire protection services, beach cleanup services, or signs. The provisions of this

section shall apply only to natural conditions of public property and shall not limit any

liability or immunity that may otherwise exist pursuant to this division.”




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       The State cites Knight v. City of Capitola (1992) 4 Cal.App.4th 918, overruled on

other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532. Knight was severely

injured while bodysurfing at Capitola. (Knight, at p. 923.) His theory of the action was

that the beach was essentially rebuilt in the 1970s by the Army Corps of Engineers, and

this rebuilding essentially created a dangerous condition of public property. (Id. at p.

925.) The court found section 831.2 provided a complete defense to liability. (Knight, at

p. 926.) In discussing Gonzales, the court stated that it was prospectively abrogated by

the adoption of section 831.21. (Knight, at pp. 929-930.) The court cited a number of

other cases criticizing Gonzales and held that, regardless of whether or not Gonzales is

good law, it did not support Knight’s argument because there was no evidence the victim

relied on lifeguards to prevent him from making an unsafe dive. (Knight, at p. 930.)

Similarly, in the present case, there is also no evidence that six-year-old Jahdyn relied on

the lifeguards.

       Witkin characterizes the enactment of section 831.21 as partially rejecting the

liability imposed by Gonzales. (5 Witkin, Summary of California Law (10th ed. 2005)

Torts, § 254(2), p. 424.) Another authority states: “However, the application of [the

Gonzales] rule to public beaches has now been reversed by statute, at least to the extent

that the entity’s inducing conduct involves the provision of protective services, such as

lifeguards or security services.” (5 Levy et al., Cal. Torts (2013) Unimproved Public

Property, § 61.03[7][a][iii], p. 61-58, citing § 831.21 and Geffen v. City of Los Angeles

(1987) 197 Cal.App.3d 188, 192-194.)




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       In Geffen v. City of Los Angeles, supra, 197 Cal.App.3d 188, the court reviewed

Gonzales and concluded that it “represents an unwarranted curtailment of the rule of

governmental tort immunity.” (Geffen, at p. 192.) Accordingly, the court refused to

follow the “hybrid condition” rationale of Gonzales. It also reviewed the legislative

history of section 831.2 and concluded the “hybrid condition” rationale “is thus directly

inconsistent with the plain meaning of the absolute immunity language embodied in

section 831.2.” (Geffen, at p. 194.) Finally, it said: “We further note that in enacting

new section 831.21 (Stats. 1987, ch. 1209), the Legislature has specifically abrogated

Gonzales. Although we do not rely upon this statute for our result since its application is

prospective only, its passage is consistent with our conclusion that Gonzales represents

an unwarranted restriction of sovereign immunity and should not be followed.” (Ibid, fn.

omitted.)

       We agree with the State that Gonzales is not good law, and even if it was, plaintiff

has not shown a naturally dangerous condition of the swimming area. Plaintiff has only

alleged the other half of the “hybrid condition” argument, i.e., the voluntary providing of

lifeguard service at the beach. (See also Arroyo v. State of California (1995) 34

Cal.App.4th 755, 759, 763-764, [section 831.2 natural condition immunity applies to

mountain lion attack].)

       We therefore conclude plaintiff did not meet her burden of showing the existence

of a triable issue of material fact. Since the State demonstrated the immunities of

sections 831.2 and 831.21 are applicable, the trial court correctly granted the State’s

motion for summary judgment.


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                                   DISPOSITION

     The judgment is affirmed. Respondent is awarded its costs on appeal.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                    MILLER
                                                                            J.


We concur:


RAMIREZ
                           P. J.


McKINSTER
                              J.




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