Public Parks and the Natural Immunity: Duty to Warn (About Mountain Lions and Other Assorted Things)

June 20, 2007

By Wylie Aitken & Richard Cohn

1. LIABILITY OF GOVERNMENTAL ENTITIES AND PUBLIC EMPLOYEES IS THE RULE, WHILE IMMUNITY IS THE EXCEPTION.

Interpretation of the Ducey v. Argo Sales Co., (1979) 25 Cal. 3d 707.

“. . . The language of the applicable statutes refutes the State’s argument that it is under no duty to protect the public against dangers that are not created by physical defects in public property. (See generally, Van Alstyne, Cal. Govt. Tort Liability (Cont. Ed. Bar 1980), Section 6.21, 6.26, pp. 204-205, 211.)” (Emphasis added).

The approved Law Revision Commission Comment states:

“. . . The definition of ‘dangerous condition’ is quite broad because it incorporated 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.”

Public property may be in a dangerous condition statutorily as to a class of persons such as a child, as stated in the Law Revision Comment to Government Code Section 830 (a):

“. . . Condition is not dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care . . . The definition would, however, take into consideration the standard of care that would be applicable to foreseeable users of the property. Where it is reasonably foreseeable that persons to whom a lower standard of care is applicable — such as children — may be exposed to a substantial risk of injury from the property, the public entity should be required to take reasonable precautions to protect such persons from that risk. Thus, a public entity may be expected to fence a swimming pool or to fence or lock up a dangerous instrumentality if it is reasonably foreseeable that small children may be injured if such precautions are not taken.”

In Van Alstyne, Cal. Government Tort Liability, (Cont. Ed. Bar 1980), Section 3.8, at p. 187, at least three distinguishable types of situations are identified from the official reports as creating dangerous conditions of property. Many of these particular situations do not require a physical defect of the property and are described as follows:

“(1) A public improvement may have become physically changed, flawed, or damaged, or have deteriorated to a degree that makes it potentially dangerous to reasonably foreseeable users, even when used with due care. [Citations omitted]

(2) Public property is not damaged or in a deteriorated condition, and which is neither structurally unsound nor physically defective may nevertheless, be in a dangerous condition because the design or location of the improvement, the interrelationship of its structural or natural features, or latent hazards associated with its normal use, create a substantial risk of injury to foreseeable careful users. [Citations omitted]

(3) Real property which is neither defective nor dangerous for any of the reasons summarized in categories (1) and (2) may nevertheless, in some instances, be substantially dangerous to reasonably foreseeable users who sustain injury as a result of negligent or criminal conduct by others on or about the property. . .”

The issue of whether a dangerous condition of property exists is ordinarily a question of fact and can only be resolved as a question of law if reasonable minds can come to one conclusion. (Government Code Section 830 (b) (cf. Van Alstyne, supra, 3.16, 3.17, 3.18, 3.21).

B. If there is a duty to warn of foreseeable assaults or to trim trees and foliage that provide hiding places for the “human beasts” to wait, it is difficult to understand the defense argument that though we must control the human savage beast, there is no corresponding duty regarding other forms of savage beasts.

In Government Code Section 835 (dangerous condition of public property) a college was not immune for failure to warn its students of the known danger or for failure to trim the foliage or to take other reasonable measures to protect the plaintiff.

The court stated that since under GOVT. C. § 835, providing conditions under which a governmental entity may be held liable for dangerous conditions of its property. The court followed Garcia v. Superior Court (1990) 50 Cal. 3d 728, McCauley v. City of San Diego (1987) 190 Cal. App. 3d 988. The government will argue that this theory is no longer viable due to the holdings of Rombalski v. City of Laguna Beach (1989) 213 Cal. App. 3d 842. However, Plaintiffs can argue that their case is distinguishable from Gonzalez, and can be resolved in Plaintiffs’ favor in a manner consistent with Tessier and Rombalski. What the governmental defendants have consistently failed to point out is that a number of the cases they rely on (such as Rombalski and McCauley) do not retreat from the Gonzalez logic, but merely clarify its ruling.

Gonzalez did not involve the affirmative misrepresentation of safety which is actionable pursuant to McCauley, and which is the basis for liability under this theory. Rather, Gonzalez involved an omission to act — not an act of commission. In McCauley, the court affirmed the legislative intent behind Claypool v. United States, 98 Federal Supplement 702 (1951), a case involving the Federal Government, the Federal Government was held liable for a bear attack against a sleeping camper. The Federal Government is liable to the extent a private landowner would be liable. The theory of liability was not based on the owning or possessing of a wild bear, but for the negligent operation of the park. In the Claypool case, in light of recent bear attacks, a brochure and direct representations by a ranger that plaintiffs could safely sleep out, led to liability. Though the Restatement was discussed regarding duties of a landowner, no one suggested immunity because a bear is an indigenous wild animal. The conduct in Claypool is no different from other cases where brochures and other representations lead to a false sense of security and induce reasonable reliance.

Park brochures and Visitor Center exhibits can be used to illustrate many key points. The only facts one can often deduce from the brochures is that the park is easy to get to, it is managed by the Environmental Management Agency (or mismanaged). Hiking, picnicking and camping is promoted. They extol their day use areas, “imagine a wilderness in your own back yard!” Charcoal burning barbecues, drinking water, running streams, and nearby restrooms, closing with “let no one who follows you regret you were here.”

Trail Guides are also enlightening. How do they describe their “Nature Trail”? “Short and easy hiking,” “Watch out for the most vicious form of wildlife in the park: Poison Oak!”. Often, you are even advised to head off the trail for several hundred feet to explore.

When one analyzes the McCauley case, it is clear that for the immunity to apply, a condition must not only be natural but must be on unimproved property. McCauley has been continuously cited for the proposition that if a public entity induces reliance on the non-negligent performance of a service, they will be liable despite the assertion of any immunity.

5. A THIRD SEPARATE THEORY UNDER WHICH PLAINTIFFS MAY PROCEED, ALTHOUGH SIMILAR TO THE SECOND, IS NEGLIGENT MISREPRESENTATION PURSUANT TO THE RECENT CALIFORNIA SUPREME COURT CASE OF GARCIA.

The policy of these decisions is reflected in the recent Supreme Court case of Garcia, supra. In Garcia, the Supreme Court found a parole officer liable for assuring a member of the public that she was in no danger from a parolee who subsequently murdered her. Citing Davidson, the Court acknowledged that you would normally have no duty to volunteer information or duty to warn (when public property is not involved). The Court aptly noted “Nevertheless, the absence of a duty to speak does not entitle one to speak falsely.” The Court noted that the Court’s search for a special relationship was unnecessary. “A special relationship is a prerequisite for liability based on a defendant’s failure to act. . . Accordingly, it is unnecessary to look beyond the ordinary rules that determine which misrepresentations are actionable.”

“Negligent misrepresentations involving a risk of physical harm are actionable under the circumstances described in Restatement Second of Torts, supra, section 311. Under that section, ‘

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated.’ California courts, in holding the plaintiffs have stated causes of action for negligent misrepresentations causing physical harm, have relied both on section 311 (Hanberry v. Hearst Corp. (1969) 276 Cal. App. 2d 680, 683-688) and on Civil Code section 1710, subdivision 2 (Barbara A. v. John G. (1983) 145 Cal. App. 3d 369, 375-376). Scholars have also recognized the theory. (Prosser and Keeton on Torts (5th ed. 1984) ch. 5, Section 33, at p. 205, fn. 26, 205-208).

The facts of a recent case which our office handled are illustrative:

Once upon a time, a young five year old California girl travelled to a public nature park. This park was open for family recreational activities and was highly developed pursuant to a developmental plan. The particular campground she visited was designated as a day use family picnic area.

Unknown to this little girl and her family, there was present in this day use area a mountain lion. The mountain lion was attracted to the campground by prey drawn into the campground, and by improvements to the property which included leaving out water and food.

The park personnel had abundant knowledge of the presence of this dangerous mountain lion.

As a direct result of the improved property and directly related to the improved and unnatural property and its characteristics such as vegetation and its location, the mountain lion was brought into contact with this young girl and permanently maimed and injured her.

To make matters worse, if that is possible, the County personnel had provided protective services to the public by inducing public reliance on brochures, public advertising, *lectures, improvements and other activity which affirmatively represented the park as safe for wholesome family activities.

This was done even though the information being given was misleading and inaccurate in that it affirmatively represented there was no danger from mountain lions. In reliance thereon, and due to the active conduct of the defendants which increased the danger, the little girl was led into her tragic meeting with the mountain lion.

Numerous cases continue to hold that such negligent misrepresentations and affirmative conduct is actionable including the cases cited by defendants, (i.e. Rombalski v. City of Laguna Beach, supra; Morin v. County of Los Angeles (1989) 215 Cal. App. 3d 184; Garcia v. Superior Court (1990) 50 Cal. 3d 728.) In the above discussed situation, the defendant County voluntarily assumed the protective service of operating the park in a manner which would be safe for park visitors. However, as discussed above, the County went on to affirmatively misrepresent that the park was a safe place to bring family (including children), despite the aforementioned knowledge of the danger of mountain lion attacks. These affirmative misrepresentations of safety induced reliance on the part of the family to their detriment. As discussed by the McCauley court, under these circumstances, the legislature did not intend that the County be cloaked with the immunity set forth in Government Code Section 831.2.

Contact the Law Office of Aitken * Aitken * Cohn today to learn more.